5. A perusal of the docket order passed by the Court below on 01.09.2014 shows that the application is filed in I.A.No.441 of 2012 under Order 39 Rules 1 and 2 CPC stands dismissed by the impugned order and the said order is passed stating that no LR petition is filed. But it is not disputed by the learned counsel for the respondents 2 and 3 that I.A.Nos.216 of 2014 and 217 of 2014 are pending and also it is not in dispute that the respondents have remained set ex parte and that their own application, for setting aside the same, is also pending. Even the said applications are filed on 28.01.2014 before the memo is filed by the learned counsel for the first respondent about the intimation of the death of the first respondent. As such, it cannot be said that the LR application is not filed. The learned counsel for the appellant states that in spite of filing petition for setting aside the abatment petition and also petition for bringing the LRs on record and one for condonation of delay separately i.e., I.A.No.216 of 2014 and 217 of 2014 are pending before the Court below. It is also asserted by the learned counsel for the appellant that the suit itself is posted for hearing on 14.11.2014 and the said two applications are also posted on the same day. Therefore, the Court below should not have dismissed the petition by holding that no LR petition is filed. When I.A.Nos.216 of 2014 and 217 of 2014 are pending, the Court below should have decided the said applications before passing the impugned order. The decision relied on by the learned counsel for the appellant, no doubt, makes it clear that no specific order is required. But in the present case, the petition under Order 39 Rules 1 and 2 is dismissed and the impugned order is passed in the said application. As such, it cannot be said that CMA is not maintainable against the said order. The CMA would lie under Order 43 Rule 1(k) of CPC, since the impugned order is passed in an interlocutory application under Order 39 Rules 1 and 2 of CPC.
