1 S.B. Civil Misc. Appeal No. 3141/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S.B. Civil Miscellaneous Appeal No. 3141/2010 Mohd. Ramzan Vs. Mst. Hazra & Another. Date of Judgment: 13.12.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. Sanjay Mishra, for the appellant. BY THE COURT: Heard learned counsel for the appellant. 2. Appellant has preferred present misc. appeal under Order 43 Rule 1 CPC against order dated 11.08.2010 passed by Additional District Judge, Jhunjhunu, whereby appellant's regular appeal has been dismissed as abated. 3. From the impugned order it is clear that Respondent No. 1 moved an application under Order 22 Rule 4(3) read with Rule 11 CPC in first appellate court that Respondent No. 2 Umardeen expired on 07.06.2006 and appellant was aware about death of Respondent No. 2, but still the application for substitution of legal 2 S.B. Civil Misc. Appeal No. 3141/2010 representatives of the deceased-respondent was not moved within 90 days, therefore, appeal has abated automatically. 4. Learned counsel for the appellant did not move an application for substitution of legal representatives of the deceased-respondent or for setting aside the abatement of the appeal. Learned first appellate court dismissed the appeal of the appellant as abated. 5. A bare perusal of Order 43 Rule 1 CPC will show that no appeal lies against an order passed on an application under Order 22 Rule 4 (3) read with Rule 11 CPC. Learned counsel for the appellant admits this position of law also that present appeal has wrongly been preferred under Order 43 Rule 1 CPC. 6. In these circumstances, appeal is dismissed as not maintainable. It will be open for the appellant to seek appropriate remedy as per law. (Narendra Kumar Jain),J. Manoj, Item No.8.