V. Bhargava, J.
1. This special appeal has come up before this Full Bench under the following circumstances. The appellants filed a suit against three parsons, namely, Data Ram, Chhuttan and Babu Lal for possession of the properties mentioned in the plaint and for mesne profits on the allegation that they had taken wrongful possession of the properties and were trespassers. During the trial of the suit, Data Ram remained absent and the suit proceeded ex parte against him. It was contested by the other defendants. Evidence of parties was recorded and argument of parties were heard on 29th March, 1950, and 19th of April, 1950 was fixed for delivery of judgment. On 19th of April, 1960 the trial Judge felt that fresh arguments were necessary and, consequently, be fixed 20th July, 1950 for further arguments. Admittedly, during this interval Data Ram defendant died on the 31st of May, 1950. No steps were taken regarding his legal representatives being brought on the record until subsequently in the month of September when an application was made by the living defendants Chhuttan and Babu Lal informing the court that Data Ram had died on 31st May, 1950 and requesting the court to dismiss the suit on the ground that it had abated as a whole. To this application a reply was made on behalf of the present appellants that the suit had not abated, because of the applicability of Order XXII Rule 6 of the Code of Civil Procedure and that the provisions of Order XXII Rule 4 of the Code of Civil Procedure did not apply. On 14th October, 1950 the appellants made an application for substitution of the legal representatives of the deceased defendant Data Ram. At that time, however, no prayer was made for setting aside the abatement. Consequently, a subsequent application was made on 24th February, 1951 praying for the amendment of the application for substitution by putting the following words:
'The plaintiffs were not aware of Data Ram's death before 28th Septembers 1950 when an application was made by the other defendants so the plaintiffs be given benefit of Section 5 of the Limitation Act and the abatement if any, be set aside and his representatives be made a party.'
On that very day, this application was allowed by making an order for amendment of the plaint on payment of Rs. 10 as costs. It is an admitted fact that the costs were not paid and the various applications came up for orders before the trial judge on 22nd November, 1951. On that day, the Judge held that the suit abated as against Data Ram and as the nature of relief claimed by the plaintiffs was joint and one against all defendants, the suit abated as a whole. The parties were directed to bear their own costs.
2. Against his order a first appeal was filed which came up for hearing before a learned Single Judge, who dismissed the appeal being of the opinion that the view taken by the trial Judge was justified by the materials on the record and the circumstances of the case and was in accordance with law. Thereupon, the appellants filed a special appeal, which came up for hearing before a Division Bench of this Court. The Division Bench byits order dated 12th August, 1964 referred the case to a larger Bench, because it was pointed put before that Bench that, on the question of law involved there were conflicting opinions recorded by two earlier Division Benches, The question, which was canvassed before the Division Bench was whether the view taken on the facts of this case the suit could not proceed even against the surviving defendants was correct or incorrect. The Division Bench was of the view that the conflict in the opinion of the earlier Benches should be resolved by a larger Bench and, consequently, the case has come up before this Full Bench.
3. When this appeal came up for hearing before us, a preliminary question arose whether, in this appeal, we could go into the question, that has been the principal cause of reference to the Full Bench, The question arose because, under the Code of Civil Procedure, no appeal is provided against an order recording the fact that the suit has abated. In fact, the Code of Civil Procedure does not contemplate any order being made to that effect. Under the provisions of the Code of Civil Procedure, abatement comes into effect automatically on he expiry of the period prescribed, from the date of death of the deceased party. No specific order by any court is required to bring into effect an abatement. The Code of Civil Procedure however provides tor an application for setting aside the abatement. An order refusing to set aside an abatement or granting an application for setting aside the abatement has been made appealable. In the present case, it is quite clear from the provisions of Order XXII, Rule 4, Sub-rule (3) of the Code of Civil Procedure that the abatement of the suit under that provision came into effect as against Data Ram alone as he was the only defendant, who died. There could be no abatement against the remaining two defendants, Chhnttan and Babu Lal, who were still alive. Under the old Code of Civil Procedure, on the death of any party the whole suit used to abate but that is not so now. Now an application made for setting aside the abatement, if at all, can only relate to setting aside the abatement of the suit against Data Ram and consequently we have to hold that the order of the trial Judge dated 22nd December, 1951 was an order refusing to set aside the abatement of the suit only against Data Ram.
4. So far as that part of the order is concerned, we have heard learned counsel and we see no reason to differ from the view taken by the trial judge and the learned Single Judge that this was a fit case where the application for setting aside the abatement of me suit against Data Ram should have been dismissed. The learned Single Judge has given his reasons for coming to mat view, and we entirely agree with him. These appellants had in their application, presented on 14th October, 1950, omitted to make a prayer for setting aside the abatement and the only prayer before the court was for substitution of legal representatives of Data Ram deceased. It was by the subsequent application presented on 24th February, 1981 that they applied for amendment of their substitu-tion application so as to include a prayer for setting aside the abatement. That application for amendment of the substitution application was allowed subject to payment of costs. The costs were not paid and the application for substitution was, therefore, never amended. Even on fads, the finding recorded is that the appellants had knowledge of the death of Data Ram much earlier and they did not satisfy the court that there was sufficient cause for not applying for substitution of his legal representatives within the prescribed period of 90 days. They failed to show that there was sufficient reason for setting aside the abatement. The order of the trial Court rejecting the prayer for setting aside the abatement against Data Ram was therefore, light and must be upheld.
5. Then comes the question whether we can now at this stage interfere with that order in so far as it affects the claim of the appellants against the living defendants, Chhuttan and Babu Lal. The order of the trial Court stating that the suit abated as a whole was on the face of it not correct. There could be no abatement of any suit against the defendants, who were still alive. What the court should have decided was whether the right to sue survived against the surviving defendants. If the court came to the view that the right to sue did not survive, the suit could be dismissed without further trial. On the other hand, if the court came to the view that the right to sue survived and an effective decree could be made against the surviving defendants only, the court should have proceeded to try the suit on merits against the surviving defendants and should have passed a decree in accordance with the findings finally arrived at.
6. In these circumstances, the order made by the trial Judge can be interpreted in only two ways (1) It may be treated as an order dismissing the suit against the living defendants Chhuttan and Babu Lal also, though this interpretation does not necessarily follow from the language used by him, because he did not in so many words make a direction dismissing the suit against the surviving defendants. Even if it were to be treated as an order dismissing the suit, that order of dismissal would amount to a decree and, consequently, the case could not be brought up to this Court by means of an appeal from an order. In such a case, a regular first appeal would require ad valorem court fee. The result is that, if the order is treated as a decree dismissing the suit, the present special appeal is not competent and cannot he heard by us on merits. (2) The alternative interpretation is that, by holding that the suit had abated against the surviving defendants also, all that the trial Court did was to refuse to proceed further with the suit. If the order be treated as one merely refusing to proceed with the suit, it would be an order against which no first appeal from order lay at all. The appropriate remedy would have been to move that court itself to proceed with the suit and pass a final judgment either dismissing it or decreeing it. In the alternative, that order could have been challenged in revision or by way of a writ petition. In any case, this Courtcould not entertain a first appeal against such an order which merely amounts to a refusal by a trial Court to proceed with the suit nor to the present special appeal competent.
7. Thus it will be seen that, on either of the two interpretations which can be placed on the order of the trial Court, this present special appeal is not maintainable, so that it is dismissed; since no one appeared on behalf of the respondents, we make no order as to costs.
8. Before closing, we would like to add thatthis case was ably argued before us by Mr.Bashir Ahmad on behalf of the appellantsand valuable assistance was given to us at ourrequest by Mr. H. N. Seth and Mr. S. P. Gupta,even though they did not represent therespondents.