Amaresh Roy, J.
1. This appeal is against an Order passed by our learned brother Sabyasachi Mukharji, J. in a proceeding under Article 226 of the Constitution of India, in which proceeding the application, made on behalf of the present appellant, praying for setting aside the abatement and substitution of the heirs of the deceased respondent, has been dismissed. That proceeding which is matter No. 178 of 1970 Indian Aluminium Co. Ltd. v. Third Industrial Tribunal, West Bengal, had arisen upon an application by Indian Aluminium Co. Ltd. under Article 226 of the Constitution of India, challenging the correctness and/or validity of an order made by the Third Industrial Tribunal, West Bengal. The circumstances providing the background of facts are that an industrial dispute was pending before the said Tribunal and during the pendency of that proceeding before the Tribunal two employees, viz. Tarapada Bhattacharjee and Vivekananda Boss were dismissed by the Company on the ground of certain alleged misconduct. The Company made an application before the Tribunal under Section 33 of the Industrial Disputes Act, 1947 for approval of the order of dismissal made by the Company upon those two persons. The Tribunal refused that prayer. Being aggrieved by the said Order of the Tribunal, the Company moved this Court under Article 226 of the Constitution. In the proceeding that commenced in this Court upon that application under Article 226 of the Constitution, the said Tarapada Bhattacharjee and Vivekananda Bose were respondents Nos. 2 and 3 respectively. During the pendency of the matter in this Court, respondent No. 3 Vivekananda Bose died. The date of death has been ascertained and admitted by both the parties to be 12th of August, 1970. For a long time after the death of the said Vivekananda Bose no step appears to have been taken for substitution of the heirs and legal representatives of the said deceased respondent No. 3 in the proceeding pending in this Court. In or about June, 1971, the petitioner, who is appellant before us, appears to have heard about the death of the said Vivekananda Bose on 11th June, 1971. Their learned lawyers wrote letters to the respondents' learned lawyer, asking for confirmation of what the appellants have heard about the death of respondent No. 3, Vivekananda Bose. In that letter, the names of the heirs and legal representatives of the said Vivekananda Bose, if he had really died, were also asked for. In reply to that the learned lawyer for the deceased respondent sent a communication, mentioning the names and addresses of the heirs and legal representatives of Vivekananda Bose, respondent No. 3 which information was supplied to the said lawyer for respondent No. 3 for communication to the lawyer for the appellant. It did not, however, mention the exact date on which Vivekananda Bose had died. Learned lawyer for the appellant again wrote on 23rd July, 1971 to the learned lawyer for respondent No. 3 asking for the exact date of the death of Vivekananda Bose, respondent No. 3. In reply dated 27th July, 1971, the learned lawyer for respondent No. 3 mentioned that Vivekananda Bose expired on 12th of August, 1970 in a fatal accident. Thereupon a Master Summons was taken out on 12th August, 1971 for the application returnable on the 27th August, 1971. In the said application, series of correspondence by which the necessary information was gathered have been mentioned and it has been stated 'inasmuch as your petitioner was not aware of the date of death of the third respondent until 28th July, 1971 and had no proper knowledge of his death or of the names of the legal representatives of the third respondent until 29th July, 1971, in the circumstances aforesaid your petitioner was unable to make an application for substitution of the third respondent's legal heirs earlier and your petitioner's right to relief against the third respondent has abated. Your petitioner has also not been able to make an application for setting aside the said abatement within the time for the same reason.' The prayers were for setting aside the abatement; condonation of the delay in making the application for setting aside the abatement and for substitution of the legal heirs of the deceased respondent No. 3 and consequent amendment of the Cause Title. There was also a prayer for such other or further orders as the Court may deem fit and proper.
2. That application was opposed on behalf of the heirs of the deceased respondent No. 3 whose names were proposed to be substituted upon setting aside the abatement.
3. The said application was disposed of by the Order of our learned brother Sabyasachi Mukharji, J. made on 23rd February, 1972. The learned Judge took notice of the relevant dates, which have been mentioned above, for deciding the question whether the appellants were entitled to have the heirs of the deceased respondent No. 3, substituted as prayed for. His Lordship pointed out that the matter was an application under Article 226 of the Constitution and the provisions of the Code of Civil Procedure would be applicable and will be governed by the provisions of the Order 22 of the Code of Civil Procedure read with the Limitation Act. But the learned Judge was of the view that the delay had not been sufficiently explained, particularly as to what the petitioner was doing since he came to know on the 28th July, 1971 about the death of the third respondent prior to making the application returnable on the 27th August, 1971. In that view of the matter, his Lordship held that there had been abatement so far as the third respondent was concerned as a result of his death and also pointed out that he was a necessary party to the application.
4. Against that order, dismissing the application, praying for setting aside the abatement and substitution of the legal heirs and representatives of the deceased respondent No. 3, Vivekananda Bose, the present appeal has been preferred,
5. Before we proceed to deal with the contentions raised in the appeal, we have to mention that on behalf of the respondents in this appeal, a preliminary objection was raised regarding its maintainability. It was contended that an appeal would not lie against an order made under Order 22 of the Code of Civil Procedure, either allowing or dismissing an application for setting aside abatement. The recent Full Bench decision of this High Court in the case of Nurul Hada v. Amir Hasan, : AIR1972Cal449 , has been cited as an authority for that proposition. It is true that the Full Bench has laid down that an order setting aside the abatement is not a judgment within the meaning of Clause 15 of the Letters Patent, as it does not relate to the merits of the dispute but is only a step towards the final adjudication of the dispute. But the Full Bench decision is not an authority for the proposition that an order refusing to set aside abatement is not a judgment within the meaning of Clause 15 of the Letters Patent. A careful examination of the judgment of the Full Bench, which was delivered by our learned brother Sabyasachi Mukharji, J. really shows that the question before the Full Bench was whether an appeal lay against an order setting aside abatement under Order 22, Rule 9 of the Code of Civil Procedure, which question had arisen as a preliminary point before a Division Bench, consisting of Sinha, C. J., as his Lordship then was and A. C. Sen, J. and which point in view of the conflicting decision of this Court, was referred to the Full Bench for decision. The test laid down by the Full Bench is whether any right or liability of the party in respect of the point in dispute is touched by the order sought to be appealed from. Applying that test an order setting aside the abatement has been held to be no more than a step towards obtaining the final adjudication in a suit and, therefore, not a judgment within the meaning of Letters Patent. But when that test is applied to an order refusing to set aside an abatement it will clearly appear that such an order affects the right or liability of the party in respect of the points in dispute because by the abatement of the proceeding it was brought to an end. This distinction in the effect of the order--one setting aside abatement and the other refusing to set aside abatement is the reason why in the Civil Procedure Code itself provides Order 43, Rule 1 that an order under Rule 9 of Order 22 refusing to set aside abatement or dismissal of the suit is appeal able, though no appeal has been provided in that Rule of Order 43 against an order setting aside the abatement. We, therefore, overrule the preliminary objection.
6, 7. On the merits of the appeal Mr, Ginwala appearing for the appellant has sought to contend that the nature of the proceeding under Article 226 of the Constitution of India which in the present case was a Rule Nisi, issued upon an application praying for a Writ of Certiorari is of the character that the right to sue, so to say, is really against the Tribunal whose order is sought to be quashed, though the other respondents have been joined as parties to it to give them an opportunity of being heard before an order under which they may have taken some benefit is effected. For that reason Mr. Ginwala contended that the provisions in the Order 22 of the Code of Civil Procedure will apply in terms and would not bring about an abatement of the proceeding on the death of one of the several respondents. We cannot accede to this contention of Mr. Ginwala and it is enough to point out that in a Division Bench decision in the case of Krishnalal Sadhu v. Slate of West Bengal, : AIR1967Cal275 , it has been held that Section 141 of the Code of Civil Procedure Code is directly attracted to the applications under Article 226 of the Constitution and so such provisions of the Code of Civil Procedure as can be suitably applied to the Writ Proceeding, are applicable to such proceedings, so that Order 22 of the Code of Civil Procedure is applicable to Writ Proceedings. We respectfully agree with the decisions mentioned above and the reasons for the decisions that have been elaborately discussed in the judgment delivered by Bose, C. J.
8. The question, therefore, is whether on the death of respondent No. 3 Vivekananda Bose the proceeding as against that respondent has abated or not and whether the legal heirs and representatives of the said deceased respondent No. 3 should be substituted in his place after setting aside that abatement upon the application made on behalf of the appellants. Our learned brother Sabyasachi Mukharji J. in his order has held that the said respondent No. 3 was a necessary party in the proceeding and Order 22 of the Code of Civil Procedure will govern the application. He, however, has held that the petitioner had not sufficiently explained the delay in making the application for setting aside abatement and substitution of the heirs. As we have already mentioned above that though the death of respondent No. 3 had occurred on 12th of August, 1970, the fact of his death, particularly the exact date of death and also the names and addresses of the heirs and legal representatives of the deceased respondent No. 3 could be gathered by the appellant only on 28th July, 1971. The correspondence that passed between the lawyer for the appellant and the lawyer for the respondents show the enquiries that were necessary to be made. In that respect on behalf of the respondent before us, lack of diligence has been suggested. But on consideration of the totality of the events revealed by the series of correspondence we are satisfied that there was no lack of diligence at all. The length of time that needed explanation could at its longest be apprehended to be between 29th July and 12th August, 1971. It is barely a period of two weeks. In the matter of this description the two weeks' time spent for getting ready with the application for taking out the Master Summons cannot be said, in our view, to be much too long. It appears that the length of time that was spent by correspondence had not been brought to the notice of our learned brother Mukharji J. and for that reason that aspect did not receive proper consideration. We hold that the time spent before the application was made has been explained before us with sufficient cause within the meaning of Rule 9 of Order 22 of the Code of Civil Procedure and Section 5 of the Limitation Act. The delay in making the application should, therefore, be condoned and the application for setting aside the abatement should succeed.
9. We, therefore, allow the appeal and set aside the Order of the learned trial Judge. The abatement on the death of respondent No. 3 be set aside and the heirs and legal representatives, proposed to be substituted, be substituted in his place. Cause Title be amended accordingly. In the circumstances of the case we do not award any costs. Parties should bear their own costs.
Amiya Kumar Mookerji, J.
10. I agree.