1. This is a civil revision application filed by the original respondents against the order passed by the learned extra assistant judge , Kolhapur dated 10th Mar, 1981 admitting the appeal and holding that it is maintainable.
2. Late Shri Bhau Narsu Choughule, original plaintiff filed a Regular Civil Suit bearing No. 1006 of 1977 in the court of the civil Judge , Senior Division Kolhapur against the defendants for the declaration that the resolution dated 24th July ,1976 passed by Shri Ram Shetkari Pani Puravatha Mandal ( hereinafter referred to as 'the Mandal') is illegal . In the said suit he asked for a further relief claiming that the declaration for the cancellation of his membership of the Mandal was also illegal, and therefore, he is entitled to an injunction for restraining the defendants from making any change in the pipe line scheme in which his right of taking water under the scheme is put in jeopardy . the claim of the plaintiff was contended by the defendants. In this suit a claim for temporary injunction was also filed. During the pendency of these proceedings Shri Bhau Narsu Chougule died on 8-12-1980. Therefore present opponents filed an application under O.22, R.1 of the Code of Civil Procedure for bringing them on record and adding them as party applicants , they being the legal representatives of of the deceased Bhau Narsu Chougule. This application was opposed by the present petitioners on the ground that right to sue does not survive , as the right claimed in the suit was a personal right of the deceased Bhau Narsu Chougule based upon his membership of the Mandal . After hearing both the sides the learned judge of the trial court came to the conclusion that as the right to sue does not survive after the death of the original plaintiff , the legal representatives have no right to proceed further with the suit . In this view of the matter , he dismissed the suit as abated.
3. Being aggrieved by this order the legal representatives of the deceased plaintiff filed an appeal before the District Court Kolhapur . In the said appeal a preliminary objection was raised by the respondents, defendants, that the order passed by the trial court does not amount to a decree and therefore the appeal is not main tenable. After hearing both the sides , the learned Second Extra assistant Judge, Kolhapur came to the conclusion that by holding that right to sue does not survive , the court has adjudicated upon and has conclusively determined the right of the appellants and therefore the said order amounted to a decree and hence the appeal was main tenable under O. 41 , R1 of the civil P.C. . It is against this order dated 10-3-1981 that the present revision application has been filed by the petitioners.
4. Shri Kulkarni , learned counsel appearing for the petitioners - original defendants has contended before me that in view of the definition of the term 'decree' in S. 2(2) of the civil P.C. it cannot be said that the order passed by the Trial Court amounted to a decree against which an appeal could be filed under O.XLI, R.1 of the code of civil procedure . In support of his contention Shri Kulkarni has relied upon the decision of the Supreme Court in Cox and Kings v. Their Workmen , : (1977)ILLJ471SC as well as the decision of the Allahabad High Court in Muhammed Ismail v. Manohar Das AIR 1922 All 113.
5. On the other hand it is contended by Shri Pandit, learned counsel appearing for the respondents, that by holding that the right to sue does not survive after the death of the original plaintiff, the trial Court has finally and conclusively determined , the rights of the legal representatives qua controversy in the suit , which in terms amounts to a 'decree' within the meaning of S. 2(2) of the Civil P.C. .Therefore , the appeal court was right in coming to the conclusion that the appeal is main tenable under O.41, R 1 of the Civil P.C. In support of his contention Shri Pandit has placed a strong reliance upon the following decisions ( 1) Niranjan nath v. Afzal Hussain AIR 1916 Lah 245 , (2) Brij Jivan Lal v. Shiam Lal , : AIR1950All57 , (3) Rampal Singh v. Abdul Hamid , (4) Arjun v. Balwant AIR MB 45 and, (5) Mithu Lal v. Badri Prasad , : AIR1981MP1 (FB) and (6) Maramreddi Ramireddi v. Vallapparedde Ramakrishna Redde AIR 1949 Mad 404.
6. With the assistance of the learned counsel appearing fot both the sides I have gone through the decisions cited before me. So far as the Supreme Court decision in Cox and Kings v. Their Workmen : (1977)ILLJ471SC on which reliance is placed by Shri Kulkarni , is concerned , in my opinion the said decision is not applicable to the facts and circumstances of the present case . The said decision dealt with the scope of the term 'award' as defined in S. 2(B) of the Industrial Disputes Act , with which we are not concerned in the present Civil Revision Application .
7. This is not a case wherein merely a formal order of abatement of the suit has been passed by the trial court because of the legal representatives of the deceased Bhau Narsu Chougule had not filed any application for bringing them on record within time or otherwise. As a matter of fact in this case the legal representatives of the deceased - plaintiff had filed an application for bringing them on record. It was not disputed at any stage that they are legal representatives of the deceased . However, a contention was raised that they have no right to proceed with the suit as right to sue does not survive. After hearing both sides the trial court rejected their application on the ground that the right to sue did not survive and this was the reason why the trial court dismissed the suit as abated. Thus, in substance the right of the legal representatives to proceed with the suit was wholly adjudicated upon and conclusively determined. This adjudication and final determination of the right of the legal representatives amounts to a decree within the meaning of S. 2(2) of the Civil P.C. . In this view of the matter the learned judge of the appellate court was right in coming to the conclusion that the appeal was main tenable under O.41, R. 1 of the Civil P.C. I am fortified in this view by the following decisions of various courts, viz (1) Niranjan Nath v. Afzal Hussein AIR 1916 Lah 245 ;(2) Brij Jiwan Lal v. Shiam Lal , : AIR1950All57 ; (3) Rampal Singh v. Abdul Hamid ; (4) Arjun v. Balwant AIR 1954 MB 45, as well as the decision of Madhya Pradesh High Court in Mithulal v. Badriprasad , : AIR1981MP1 (FB) . As in the present case the trial court has rejected the application filed by the legal representatives because he came to the conclusion that the right to sue does not survive on the death of the sole plaintiff, the order passed is not a formal order of abatement of suit on the death of the plaintiff . Therefore, it is not necessary for me to decide any wider question in this civil revision application . At this stage Iam also not concerned with the merits of the controversy and, therefore , it is not necessary to deal with it or to decide it at this stage because by the order dated 10-3- 1981, the learned Extra Assistant Judge has only held that the appeal is main tenable and has further directed that the notice of appeal should be issued to the petitioners -- original respondents.
8. In the result, therefore , the civil revision application fails and is dismissed . In view of the dismissal of civil revision application , the interlocutory order passed by this court also stands vacated.
9. Revision Dismissed.