Code of Civil Procedure, 1908–Order 22, Rule 10–Rejection of application–Justification–Death of plaintiff B during the pendency of appeal–Petitioner filed the application under Order 20, Rule 4–This application was withdrawan and another application under Order 22, Rule 10 was filed with stating that S has the interest in the property as per ‘Will’ of B–Appellate Tribunal rejected the application with the view that the same was filed at a belated stage–Once the application under Order 22, Rule 10 is filed, the appeal would not be abated even if on the very same day, the application under Order 22, Rule 4 is withdrawn because the application under Order 22, Rule 10 can be made at any time till the proceedings are pending consideration–Delay/latches does not arise in the case where an application under Order 22, Rule 10 is filed–Application under Order 22, Rule 10 was pendng before the Appellate Tribunal when the application under Order 22, Rule 4 was withdrawn–It cannot be said that the application was preferred after the appeal in question stood abated–Impugned order is liable to be quashed and set aside.
