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Duni Chand Vs. Arja Nand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All158; 28Ind.Cas.687
AppellantDuni Chand
RespondentArja Nand and anr.
Excerpt:
civil procedure code(act v of 1908) order xxii, rule 5, order xliii, rule 1 - order refusing to make a person party to appeal as representing a deceased appellant, appeal from, whether maintainable. - - in our opinion the contention is well founded......judge of saharanpur, dismissing the appellant's application to be made plaintiff in the place of nihal singh deceased, the original plaintiff. the defendants-respondents contend that no appeal lies. in our opinion the contention is well founded. it is not suggested that the order amounts to a decree as defined in the code. as an order it is certainly not appealable, for it was not passed under either rule 9 or rule 10 of order xxii. we were asked to treat the appeal as an application for revision. we are not prepared to do this. the court below does not appear to have acted without jurisdiction or irregularity in the exercise of its jurisdiction. moreover nihal singh left a widow who appears to be his legal representative, if the appellant is not the adopted son, and who may yet.....
Judgment:

1. This is an appeal against an order of the Additional Judge of Saharanpur, dismissing the appellant's application to be made plaintiff in the place of Nihal Singh deceased, the original plaintiff. The defendants-respondents contend that no appeal lies. In our opinion the contention is well founded. It is not suggested that the order amounts to a decree as defined in the Code. As an order it is certainly not appealable, for it was not passed under either Rule 9 or Rule 10 of Order XXII. We were asked to treat the appeal as an application for revision. We are not prepared to do this. The Court below does not appear to have acted without jurisdiction or irregularity in the exercise of its jurisdiction. Moreover Nihal Singh left a widow who appears to be his legal representative, if the appellant is not the adopted son, and who may yet succeed in getting herself made plaintiff in place of her deceased husband. It may also be possible to appeal against the order of the Court when passed, dismissing the suit as having abated. There are two reported decisions of this Court that no such appeal lies but the Bombay and Madras High Courts have held that such an order is tantamount to a decree and is appealable as such.

2. The present appeal is dismissed with costs.


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