TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner is aggrieved against the order dated 5. 12. 2001 by which the trial court allowed the plaintiff's application filed under Order 22 Rule 4 read with Rule 9 CPC dated 20. 10. 2000 and refused to dismiss the suit as abated. The petitioner submitted an application under Order 43 Rule 1 (k) read with Section 151 CPC on 23. 5. 2007 and sought permission to get this revision petition converted into civil misc. appeal. It will be relevant that this revision petition has been filed before this Court on 25. 1. 2002 and application for treating the revision as appeal has been filed after more than five years, on 23. 5. 2007. It appears from the order dated 5. 12. 2001 that the trial court allowed the application of the plaintiff under Order 22 Rule 4 read with Rule 9 CPC and thereby has not refused to set aside the abatement of the suit nor it has dismissed the suit of the plaintiff, therefore, the order is not appealable under Order 43 Rule 1 (k) which provides that the order shall be appealable if it is passed under Order 22 Rule 9 CPC and further if the order is of refusing to set aside the abatement or if the order is of the dismissal of the suit. As stated above, the order is not of refusing to set aside the abatement nor is the order dismissing the suit, therefore, misc. appeal is not maintainable against this order. Accordingly, the application for conversion of the revision petition into misc. appeal is hereby dismissed.
(3.) LEARNED counsel for the petitioner submitted that the trial court decreed the plaintiff's suit for redemption of mortgaged property by judgment and decree dated 30. 9. 1982. Said decree of the trial court was challenged by both the parties by preferring separate appeals which are Civil Appeal Decree No. 30/1982 preferred by Ganga Shanker and Jagdish and Civil Appeal Decree NO. 31/1982 preferred by Ram Chandra and Manohar Lal. The appellate court by judgment dated 25. 4. 1985 allowed the appeal and remanded the case back to the trial court for appointing Commissioner for taking the accounts and thereafter to decide how much amount is due and in whom the amount is due and thereafter to pass a decree for the money and for possession of the mortgaged property. This order of the first appellate court dated 25. 4. 1985 was challenged by preferred S. B. Civil Second Appeal No. 118/1985 before this Court. According to the petitioner, during pendency of the second appeal, defendant Ram Chandra (who was appellant in the second appeal) died on 27. 6. 1990. Plaintiff Ganga Shanker (who was respondent in the second appeal) died on 15. 1. 1996. This fact was in the knowledge of the plaintiffs and the legal representative of plaintiff no. 1 himself submitted an application in the second appeal on 22. 10. 1999 under Order 22 Rule 4 read with Rule 9 CPC and sought dismissal of the second appeal no. 118/1985. Said legal representative of Ram Chandra, therefore, had full knowledge of the litigation as well as the fact of death of Ganga Shanker and Ram Chandra from the time of their death. It appears from the record of S. B. Civil Second Appeal No. 118/1985 that after above application was filed, the counsel for appellants Ram Chandra and Manohar Lal pleaded no instructions and, therefore, the appeal was dismissed by this Court by order dated 27. 4. 2000. ;