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Radheylal and ors. Vs. Smt. Kalawati - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1919 of 1969
Judge
Reported inAIR1973All237
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 3 - Order 43, Rule 1
AppellantRadheylal and ors.
RespondentSmt. Kalawati
Appellant AdvocateB.N.L. Katiyar, Adv.
Respondent AdvocateS.C. Asthana and ;B.K. Asthana, Advs.
DispositionRevision dismissed
Excerpt:
civil - application for substitution - order 22, rule 3 of code of civil procedure, 1908 - court refuses application for substitution - declares the suit abated - held, appeal is maintainable. - .....house in dispute. during the pendency of the suit the plaintiff died on 25-3-68. on 13-5-68 smt. kalawati filed an application under order xxii, rule 3, c.p.c. for her being brought on record as plaintiff in place of smt. yashoda devi. an objection was filed by the defendant to the effect that smt. kalawati had re-married and was, therefore, not an heir to the plaintiff. the trial court held that she had re-married and, therefore, was not an heir of her daughter and refused substitution. the order was passed on 9th of september, 1968. against this order smt. kalawati filed an appeal. the appellate court held that smt. kalawati had not been proved to have re-married and was, therefore, entitled to be substituted as an heir of smt. yashoda devi. on this finding the appeal was allowed......
Judgment:
ORDER

H. Swarup, J.

1. This is a defendants' application in revision against an order passed in appeal. The suit had been instituted by one Smt. Yashoda Devi for a permanent injunction to restrain the defendant from interfering with her possession over the house in dispute. During the pendency of the suit the plaintiff died on 25-3-68. On 13-5-68 Smt. Kalawati filed an application under Order XXII, Rule 3, C.P.C. for her being brought on record as plaintiff in place of Smt. Yashoda Devi. An objection was filed by the defendant to the effect that Smt. Kalawati had re-married and was, therefore, not an heir to the plaintiff. The trial Court held that she had re-married and, therefore, was not an heir of her daughter and refused substitution. The order was passed on 9th of September, 1968. Against this order Smt. Kalawati filed an appeal. The appellate Court held that Smt. Kalawati had not been proved to have re-married and was, therefore, entitled to be substituted as an heir of Smt. Yashoda Devi. On this finding the appeal was allowed. Against that order the defendant has filed the present revision.

2. Learned counsel for the applicants has contended that the court below exercised its jurisdiction not vested in it by law because no appeal was maintainable against the order of the trial Court. There is no force in this contention. Order 43, Rule 1 (k) provides that an appeal shall lie from an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit. Where the Court refuses the application for substitution, in effect it declares the suit as abated, because the effect of the order is nothing else than what will follow if no application for substitution was made by the heir within the time limit-ed by law. Rule 3 (2) of Order XXII will thus be attracted and the suit shall be deemed to stand abated. As the effect of the order passed by learned Munsif, in substance was to declare the suit abated, appeal was maintainable.

3. The appellate Court thus had jurisdiction to decide the appeal on merits and it has committed no error of jurisdiction in holding that Smt. Kalawati was an heir of the plaintiff and entitled to be substituted as plaintiff in the suit.

4. Accordingly the revision is dismissed but, in the circumstances of the case, there will be no order as to costs.


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