1. This is an appeal by the plaintiff from an order dated the 16th of November 1923. The plaintiff had instituted a suit against Chhunnu Lal and obtained an ex prate decree. Chhunnu Lal applied to have that ex parte decree set aside, and while that application was pending he died. His son Bishambhar Nath applied to continue the application as the legal representative of the deceased applicant. Moti Lal, on the other hand, objected to the application on the ground that the right to sue did not survive, and that, therefore, Bishambhar Nath, though the son of the deceased, was not his legal representative so far as this case was concerned. In support of his contention Moti Lal relied on an alleged oral Will said to have been made by the deceased Chhunnu Lal under which he is said to have directed that this litigation should be put an end to and that the decree passed against him should be accepted.
2. The learned Subordinate Judge in disposing of the application of Bishambhar Nath which professed to have been made under Order XXII, Rule 4(1) of the C.P.C., proceeded to consider, first, whether the right to sue did or did not survive. In this connection he felt himself called upon to go into the question of the alleged Will and came to the conclusion that this Will had not been established. He therefore, held that the right to sue did survive to the son. He has accordingly passed an order granting the application of Bishambhar Nath.
3. An appeal has been preferred from this order. On behalf of the respondent a preliminary objection is taken that no appeal lies. It is conceded by the learned Vakil for the appellant that, if the case had fallen under Order XXII, Rules 3 and 4, the order passed would have been final and no further appeal would lie. His contention, however, has been twofold: first that the case fell under Order XXII, Rule 10, and that, therefore, an appeal lies, and, secondly, that it is in effect a case whore the Court below has refused to record an adjustment of the claim. We are of opinion that it is impossible to hold that Order XXII, Rule 10, has any application to this, case. That rule only applies to cases other than those previously mentioned. In cases of deaths of parties the rules applicable are Rules 3 and 4, which would, therefore, exclude the operation of Rule 10 altogether. Furthermore, it is only by analogy or by applying Section 141 of the C.P.C., that we can bring in these rules, for the proceeding pending before the Court below was not the suit itself but an application to set aside an ex parte decree. When in an original suit no appeal is provided from an order bringing a certain person on the record as the legal representative of a deceased party much less would an appeal lie from such an order passed on an application to set aside an ex parte decree.
4. The other contention also, in our opinion, has no force. There was no suggestion anywhere in the objections filed by Moti Lal that the claim itself has been adjusted, compromised, or settled. These words are not to be found in the order appealed from. The Court below has considered the question of the Will merely in connection with the question as to whether the right to sue did or did not survive. It is in that connection that the evidence has been discussed. The finding of the learned Judge that the right to sue did survive and that the respondent as his son is the legal representative of the deceased Chhunnu Lal must be accepted as final for the purpose of this case, and the order cannot be set aside in appeal.
5. The result is that this appeal is dismissed with costs including in this Court fees on the higher scale.