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Mitthulal and ors. Vs. Badri Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 504 of 1976
Judge
Reported inAIR1981MP1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 22, Rules 3, 3(2) and 5
AppellantMitthulal and ors.
RespondentBadri Prasad and ors.
Appellant AdvocateJ.P. Sanghi, Adv.
Respondent AdvocateY.S. Dharmadhikari and ;Ku. Kanti Rao, Advs.
Cases ReferredMohammad Zafarvab Khan v. Abdul Razzac Khan
Excerpt:
- - 3. the learned single judge found that the revision raises interesting preliminary questions apart from the merits of the case. the orders of abatement which follow consequent on the failure of the legal representative of plaintiff to be brought on record within the period allowed by law or due to the court deciding that a particular applicant is not the legal representative, such orders do not amount to decree. the reason being that the abatement is automatic consequent on the failure of the legal representative to be brought on record within the period of limitation and no formal order is necessary. shiam lal (supra) has held as under :in determining whether an order of abatement is open to appeal a distinction should be drawn between those cases of abatement where it is due to.....c.p. sen, j. 1. the following questions have been referred to the full bench for opinion as the questions are of general importance:--(i) where one part of the order is not appealable, while the other part of the same order is appealable as a decree, but the second part is followed as a necessary consequence of the former part of the order, does a revision lie from the former part?(ii) where it is held that by reason of some of the legal representatives of the deceased having not been brought on record, the suit cannot proceed and stands abated, will a revision lie from such order, although in the latter part of the same order, the suit is dismissed or consigned to the record?2. certain material facts are required to be stated in order to fully appreciate the questions referred the.....
Judgment:

C.P. Sen, J.

1. The following questions have been referred to the Full Bench for opinion as the questions are of general importance:--

(i) Where one part of the order is not appealable, while the other part of the same order is appealable as a decree, but the second part is followed as a necessary consequence of the former part of the order, does a revision lie from the former part?

(ii) Where it is held that by reason of some of the legal representatives of the deceased having not been brought on record, the suit cannot proceed and stands abated, will a revision lie from such order, although in the latter part of the same order, the suit is dismissed or consigned to the record?

2. Certain material facts are required to be stated in order to fully appreciate the questions referred The deceased plaintiff Parmabai filed a suit against the non-applicants-defendants for declaration of her title and for perpetual injunction restraining them from interfering with her possession of the property, Parmabai died on 24-10-1973. On 27-11-1973 the applicants filed an application under Order 22, Rule 3 of the Code of Civil Procedure for being substituted as legal representatives of the deceased plaintiff on the basis of a will executed in their favour by Parmabai. Though the application was opposed by the defendants, it was allowed tentatively on 28-6-1975 and the applicants were permitted to be substituted as plaintiffs in the case. However, on 28-1-1976 one Gendabai, claiming herself to be the daughter and sole representative of the deceased plaintiff, filed another application under Order 22, Rule 3 for being substituted in place of Parmabai. She also challenged the status of the applicants as legal representatives of the deceased plaintiff. The trial Court rejected this application as being barred by limitation and also on the ground that it is not tenable because of the triangular contest i.e. there would be two sets of plaintiffs making rival claims. Curiously enough, the trial Court also rejected the application for substitution made by the applicants which was tentatively allowed on 28-6-75 without going into the questions as to whether such a Will was made and whether the applicants are entitled to be substituted as legal representatives. The grounds for rejection are (i) that it is being 2 in one suit because apart from the claim made by the original plaintiff the Court will have to adjudicate the question regarding validity of the Will and it can be treated to be an application for probate or letters of administration. As the propounder of the Will has to disclose names of the nearest heirs of the testator and the applicants having not disclosed the names of Gendabai, daughter, and another son of the deceased plaintiff through her first husband, their application has to be rejected for non-inclusion of the necessary parties and (ii) the suit has abated under Order 22, Rule 3 (2) of the Code as the 2 legal representatives i. e. daughter and the son of the deceased plaintiff Parmabai ere not brought on record within the period of limitation. The suit having abated, it shall be consigned to the record. Against this order, revision has been preferred.

3. The learned single Judge found that the revision raises interesting preliminary questions apart from the merits of the case. According to him, the operative part of the order that the suit has abated amounts to a decree. He relied on Purshottamdas Sakalchand v. Devkaran Kesheoji, AIR 1939 Nag 39. If that be so, an appeal lies and the present revision may not be tenable under Section 115 of the Code. But he also observed that the second part of the order regarding abatement is consequent to the first order whereby the trial Court has rejected the application for substitution. The question is when one order is the foundation for another order which necessarily follows the former, and no appeal lies from the former part of the order, although an appeal lies from the latter part, whether revision will lie from the former part of the order. He, therefore, framed 2 questions for opinion of a larger Bench referred to above. The matter was placed before Division Bench which, looking to the general importance of the questions raised, referred the matter to the Full Bench.

4. Before answering the questions raised, it is first of all necessary to consider whether the order holding that suit has abated amounts to decree within the meaning of Section 2(2) of the Code. The definition which defines decree is as under:--

'Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include--

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.-- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.'

By Amending Act No. 104 of 1976 the definition has been modified by excluding the orders passed under Section 47 to be decrees. The important elements of decree are (i) formal expression of an adjudication; (ii) Adjudication on the rights of the parties with regard to all or any of the matters in controversy; (iii) Conclusive determination of rights; and (iv) Adjudication must be in a suit. The decree shall also include rejection of a plaint (Order 7, Rule 11) and the determination of any question under Section 74 (sic) but shall not include any adjudication from which an appeal lies (Order 43) or an order of dismissal for default (Order 9) etc. An order not falling under the definition of 'decree' may have all the force of a decree if expressly stated to be so, e. g. an order under Order 21, Rule 50 (2), Order 21, Rule 58 etc.

5. There seems to be a general consensus of judicial opinion that all orders of abatement are not decrees. Only those orders of abatement are decrees in which the Court comes to the conclusion that the right to sue does not survive on the death of the sole plaintiff or on the death of one of the plaintiffs to the surviving plaintiffs. The orders of abatement which follow consequent on the failure of the legal representative of plaintiff to be brought on record within the period allowed by law or due to the Court deciding that a particular applicant is not the legal representative, such orders do not amount to decree. The reason being that the abatement is automatic consequent on the failure of the legal representative to be brought on record within the period of limitation and no formal order is necessary. So there is no adjudication on the rights of the parties in the suit or appeal by such an order. An order under Order 22, Rule 5 cannot obviously be said to fall within the definition of decree for the following reasons (i) the order is made only for the purpose of determining who should continue the suit as brought by the original plaintiff. It is not intended to determine and it does not, in fact, determine the rights of the parties with regard to any of the matters in controversy in suit. The question that arises for decision and actually decided is not one arising in the suit itself but is one that arises in a collateral proceeding and has to be got decided before the suit can go on; and (ii) In order to operate as a decree, the adjudication must be one between the parties to the original suit or their legal representatives, and with regard to only matters in controversy between the original parties and, therefore, cannot include a decision of the question as to whether certain individual is or is not entitled to represent one of such parties. In cases where the Court comes to the conclusion that the right to sue does not survive consequent on the death of the sole plaintiff or one of the plaintiffs to the surviving plaintiffs, there is final adjudication of the rights of the parties and the order amounts to decree [Niranjan Nath v. Afzal Hussain, AIR 1916 Lah 245 (FB); Mt. Laxmi v. Ganpat, AIR 1921 Nag 23; Venkatakrishna v. Krishna, AIR 1926 Mad 586 (FB); Rampal Singh v. Abdul Hamid, AIR 1928 Oudh 362 (FB); Sabitribai v. Jugal Kishore, AIR 1938 Cal 639; Ramcharan v. Hiranand, AIR 1945 Lah 298 (FB); Brij Jivan Lal v. Shiam Lal, AIR 1950 All 57; Aiyap-pan v. Kesavaru, AIR 1953 Trav-Co 545 (FB) and Arjun v. Balwant, AIR 1954 Madh Bha 45.]

6. Wanchoo J. (as he then was) in Brij Jivan Lal v. Shiam Lal (supra) has held as under :--

'In determining whether an order of abatement is open to appeal a distinction should be drawn between those cases of abatement where it is due to the failure of the heirs being brought on the record within the period allowed by law or due to the Court deciding that a particular applicant is not the legal representative, and those cases where the abatement is due to the Court deciding that the right to sue does not survive In the latter class of cases, there is a decree meaning thereby a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.'

Dixit J. (as he then was) in Arjun v. Balwant (supra) has held as under:--

'Where the abatement of a suit is due to the Court deciding that the right to sue does not survive, there is a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and the order of the Court falls within the definition of a decree. In such a case, it is open to the party to appeal against the decision of the Court holding that the suit has abated owing to the cause of action not surviving. It is not open to the party to apply for setting aside the abatement.'

In the Travancore-Cochin Full Bench case it has been observed; appeal dismissed on the ground of abatement-Order of dismissal is a purely formal order recognising the abatement which is a fait accompli and though it virtually disposes of the suit it is not a decree since it does not adjudicate upon the rights of parties -- Lower Court's decree does not become merged in that order and the only decree which, is capable of execution is the lower Court's decree which is kept intact. In view of the unanimity of decisions mentioned above, it has to be held that only those orders of abatement which follow the finding of the Court that the right to sue does not survive on the death of the sole plaintiff or one of the plaintiffs to the surviving plaintiffs, the orders are decrees and the remedy is to file appeal. Even an application under Order 22, Rule 9 for setting aside abatement does not lie because this Rule applies only to cases where a person had never before applied to be the legal representative within the prescribed time, and not to a person who has applied within the time but whose application has been rejected. This Rule has also no application where the Court holds that the suit has abated owing to the right to sue not surviving on the death of the sole plaintiff or one of the plaintiffs to the surviving plaintiffs, for in such a case there is a right of appeal.

7. Of course, there are certain decisions which appear to have taken a contrary view but on close examination it is clear that there is no such apparent conflict. The Privy Council in Brij Indar Singh v. Lala Kanshi Ram. AIR 1917 PC 156 has observed that an order abating the suit under Section 371 of the old Code is tantamount to a judgment in favour of the defendant and should not be passed ex parte without notice to the opposite party. In that case, consequent to the death of the plaintiff his legal representatives were brought on record in a collateral proceeding but the trial Court without hearing those legal representatives held that the suit has abated. So it was observed that such an ex parte order should not be passed when the opposite party has no notice of the proceeding as it vitally affects the plaintiff and his legal representatives as the order of abatement is really tantamount to judgment disposing of the suit. But the Privy Council has made observations in view of the circumstances of that case and the Privy Council has not said that the order of abatement is a judgment or a decree. What it stated is that it amounts to judgment because it vitally affects the plaintiff and his legal representatives and it should not be passed without hearing them. A Division Bench of this Court in Purshottamdas Sakal-chand v. Devkaran Kesheoji (AIR 1939 Nag 39) (supra) has held that there is ample authority for the view that an order that the suit abates is appealable as decree. A general observation has been made. One of the cases relied upon is the Full Bench case of the Lahore High Court in Niranjan Nath v. Afzal Hussain (AIR 1916 Lah 245) (FB) (supra). So this ruling cannot be an authority for the proposition that all orders of the abatement amount to decrees and they are appealable. Distinction has to be made between those abatement orders which are appealable and those which are not appealable by going into the cases cited in that decision. Another single Bench of this Court in Raddulal v. Mahabir Prasad, AIR 1951 Nag 269 has held that where the Court rejects the application for making the preliminary decree in mortgage sun final on the ground that one of the plaintiffs having died before the preliminary decree and his legal representative not having been brought on record the whole suit abated, the rejection amounts to a decree and no revision is tenable as an appeal lies, Here what has been held to be a decree is not the order of abatement but the rejection of the application for making the preliminary decree final, though the ground for rejection was that the whole suit had abated as the L.Rs. of the plaintiff were not brought on record who had died before the preliminary decree. It has not been held in this case that all orders of abatement amount to decrees.

8. By the impugned order what the trial Court did is to reject the application of the applicants under Order 22, Rule 3 for being substituted in place of the original plaintiff on the basis of a Will in their favour without holding any enquiry. So this is an order under Order 22, Rules 3 and 5 of the Code. An order of substitution is not appealable. An order deciding whether a person is or is not a legal representative is not appealable [Sahdev v. Vidyawati, AIR 1926 Lah 181; Duni v. Aria, ILR 37 All 272 : (AIR 1915 All 158); Venkata Krishna v. Krishna (AIR 1926 Mad 586) (supra); Ramcharan v. Hiranand, AIR 1945 Lah 298 (FB); Kunwarlal Singh v. Smt. Umadevi, ILR (1945) Nag 286 : (AIR 1945 Nag 156); and ILR (1946) Nag 482 ; (AIR 1946 Nag 424); and Bhagwan v. Vishwanath, AIR 1953 Nag 28. So also an order refusing to bring on record one as legal representative [Bhagwan v. Vishwanath (supra); Kanai v. Pannasashi, AIR 1954 Cal 588 and Babulal v. Jugal, AIR 1954 Nag 2541. A party aggrieved has a remedy of revision to show that the impugned order is vitiated by illegality as the Court acted with material irregularity in exercise of its jurisdiction. So in the present case the order of abatement did not follow any adjudication that the right to sue does not survive and, as such, there was no adjudication of the rights of the parties and it did not amount to a decree and no appeal lay. The trial Court acted illegally and with material irregularity in rejecting the application for substitution made by the applicants without holding any enquiry. A revision lies against such a perverse order. There could not have been any abatement unless and until there was adjudication of the rights of the applicants to be substituted in place of the original plaintiff. How could there be abatement when the application for substitution was brought within time and the applicants, according to the trial Court, were tentatively brought on record in place of the original plaintiff.

9. Now remains the questions to be answered. The first question, according to us, is a hypothetical question and it does not arise in the present case. It has already been held that the order dismissing the suit as having abated does not amount to a decree as there is no adjudication of the rights of the parties Besides, it is a perverse order and there could not have been any abatement when the application for substitution was filed within the prescribed period of limitation. Unless an enquiry was held the applicants could not have been denied to be substituted. The present revision is, therefore, competent. Even in cases where a part of the order is not appealable while the other Dart of the order is appealable as a decree and the second part is followed as a necessary consequence of the first part of the order, normally a revision will not lie because the former order will merge in the decree In an appeal preferred against the decree, the first part of the order is also open to challenge. Under Section 115 of the Code revision can be entertained only if the order is not appealable. Under Section 104 appeal is provided against the orders mentioned therein. Under Section 105 save as otherwise expressly provided, no appeal shall lip from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. In view of this provision, any earlier order can be challenged in an appeal preferred against the decree but only such order is not open to challenge in the decree in case where appeal is provided against the earlier order under the Code. Such orders have to be challenged only in appeal preferred under Section 104 read with Order 43, Rule 1. But the position is now changed in view of addition of Order 43, Rule 1A in the Code. In view of this new provision, such appealable orders are also open to challenge in an appeal against the decree.

10. The second question is already answered earlier. Since the impugned order is a perverse order and the trial Court acted illegally and with material irregularity in rejecting the application of the applicants for substitution without holding any enquiry revision lies. There could not have been any abatement unless the right of the applicants to be substituted was first adjudicated. It is settled law that a suit will not abate on the failure to bring all the legal representatives on record if some of the legal representatives are already on record. The Supreme Court in N. Jayaram Reddi v. Rev. Divnl. Officer, AIR 1979 SC 1393 has held that even substitution in collateral proceedings would save the suit or appeal from being abated. If all the legal representatives are not impleaded and some are brought on record and if the Court is satisfied that the estate is adequately represented meaning thereby that the interests of the deceased party are properly represented before the Court, an action would not abate. One more decision mentioned by the learned single Judge is the Division Bench decision in Mathura Prasad v. Parmanand, AIR 1360 Madh Pra 161, in which the learned single Judge was also a party. That case has no application to the facts of the present case. There, an appeal was preferred under Order 43, Rule 1 (m) of the Code against the order recording compromise. The order recording compromise was followed by a decree. A preliminary objection was raised that since no appeal lay against the compromise decree under Section 96(3) of the Code, the appeal was not competent. This was rightly negatived by the Division Bench by holding that when the right of appeal against the order recording compromise has been specifically provided under Order 43, Rule 1 (m), the same right cannot be taken away because the order was followed by decree. The right is not lost because a decree has been drawn and it is open to the appellant to show that the order recording compromise was vitiated by fraud, misrepresentation etc. The same view has been taken by the Supreme Court in K.C. Dora v. G. Annamanaidu, AIR 1974 SC 1069 wherein it has been held that bar to appeal against consent decree under Section 96(3) is based on the broad principle of estoppel and the order recording compromise is not open to challenge if it is lawful. The matter has been clarified by adding Rule 1A (2) to Order 43 that such an order is open to challenge in appeal.

11. The questions are answered accordingly.

S.S. Sharma, J.

11-A. I regret my inability to agree.

12. The application dated 27-11-1973 submitted by the present five applicants for being substituted as legal representatives of deceased plaintiff Parmabai on the strength of the last will executed in their favour, was opposed by non-applicant defendants. The Additional District Judge by order dated 31-8-1974 had framed some issues on which he was to hold an inquiry regarding that application for substitution. Some witnesses had also been summoned. Thereafter on 11-8-1975, the trial Judge passed a long order observing that the trial of the suit cannot be continued and if the claim of the applicants under the wills is challenged that could as well be decided in the trial of the suit. He further observed

^^Lo;a vkosndx.k pkgs Hkys fdlh lgk;rk ds varesa gdnkj u ik;s tkos ij crkSj ,y&vkj-; fjdkMZ ij ykdj nkok rks vkxs pykus fd{kerk j[krs gSA**A

He, therefore, allowed the application of the petitioners for being substituted as legal representatives and directed to amend the cause title accordingly. Yet another direction given was that in the body of the plaint there is no need for any amendment, but a paragraph be added stating as to in what manner and to what extent the applicants are entitled to continue the suit and to get the relief prayed for. Accordingly, the holding of inquiry on the questions as were framed was abandoned. In pursuance of the aforesaid order the applicants submitted an application (I. A. No. 8 dated 18-8-1075) for amending the plaint. This application was allowed on the same day as not opposed. The amendment was incorporated in the plaint. It may be mentioned that the cause title of the plaint had also been corrected by substituting the applicants as legal representatives of deceased-plaintiff Parmabai.

13. On 28-1-1976, Smt. Gendabai who admittedly is the daughter of deceased plaintiff Parmabai, filed an application for being brought on record as the sole legal representative of Parmabai In that application she also challenged the present applicants being the legal representatives of deceased Parmabai. That application was supported by an affidavit. The defendants opposed this application of Gendabai. The present applicants while admitting Gendabai to be the daughter of Parmabai, alleged that since the will was only in their favour, they alone had submitted an application for being substituted as legal representatives. They all the same conceded that Parmabai be added as a party to the suit, and so far as the defendants are concerned, they as also Gendabai opposed their claim over the suit property. It was further mentioned that as and when the question of will arises between them and Gendabai, they would get it settled by filing a separate suit.

14. On 30-1-1976, the trial Judge framed certain questions on which according to him the parties would be required to address the Court. On that day it also was brought to the notice of the Court that Parmabai had a son also from another husband. He, therefore, directed that any of the three parties, namely, the plaintiffs, defendants or Gendabai may furnish the name and address of that son of Parmabai. It appears that the said son could neither be traced nor could for that reason any summons be issued to him. The trial Judge, therefore, heard the parties and passed the impugned order.

15. In the impugned order the trial Court considered the following questions:--

(A) In view of the fact that Gendabai has a claim adverse to the five legal representatives already brought on record, whether her application under Order 22, Rule 3 C.P.C., made considerably beyond 90 days from deceased-plaintiff Parma-bai's death, is not time-barred under Article 1207

(B) Whether two sets of persons with conflicting claims can continue or be placed on record as plaintiffs?

(C) In view of the fact that the basic question was that of succession to the right, title and property of an absolute owner, deceased Parmabai as the propositus, whether the non-inclusion of Gendabai and Parmabai's one son though from her previous husband (as conceded by the five legal representatives vide order sheet dated 30-1-1976) even up till now does not cause the abatement of the suit?

16. The trial Judge on point No. (A) held the application of Gendabai to be time-barred. On point No. (B) he held that if Gendabai was brought on record as one of the legal representatives there would be two sets of plaintiffs with conflicting claims. Such a position was held by him to be not permissible. While dealing with point No. (C), the trial Judge firstly observed that

Now, the question faced by the court is whether the five legal representative-legatees can lawfully represent the estate of the deceased-plaintiff, Parmabai. Admittedly, the deceased had a daughter, Gendabai. Moreover she had also left a son from her previous husband vide order sheet dated 30-1-1976. She allegedly got her next husband's property by gift in absolute rights. When succession to her opens, her son or sons from any of her husbands (irrespective of the fact whether she got the property in gift from one or the other husband) would be entitled to inherit from her, because Section 15(1)(a) of the Hindu Succession Act, 1956 does not make any such distinction.' He then went on to say that

'then the position on record is that there were a son and a daughter of Parmabai who did not apply or were not brought on record as Parmabai's legal representatives within the prescribed limitation. If they are held to be necessary parties, the suit would be treated as abated under Order 22, Rule 3(2) C.P.C.'

According to the Court below the will was challenged by the defendants as well as by Gendabai and so in such a case the question regarding will attracts all the procedural rules of the Civil Procedure Code. He in that behalf took into account Sections 278 and 295 of the Indian Succession Act 1925. Thus according to him if the propounder omits to disclose the near relations or heirs of the testator who take the position of the defendants, the result would be non-inclusion of necessary parties. On these reasonings he held that

'In the result, the suit deserves to be dismissed for not impleading necessary parties within the prescribed period of limitation. It is axiomatic that a suit cannot proceed in absence of a necessary party. That the suit abates would be another incident of the situation.'

17. The operative part of the order was as follows:

'In the result the application (I. A. No. 15) of Gendabai under Order 22, Rule 3 C.P.C. is dismissed as time-barred and also as untenable because of the introduction of a triangular contest.

Next the suit is held to have abated under Order 22, Rule 3(2) C.P.C. or is unfit to proceed for failure to bring on record the two legal representatives, a son and a daughter of the deceased plaintiff Parmabai within the period of limitation. The said two legal representatives were in addition to the necessary parties, may be, as defendants to the suit. The suit having abated shall be consigned to the record. The legal representatives legatees shall bear their own costs and shall pay those of the defendants. Counsel's fee Rs. 300 on either side, if certified.'

18. When the matter was heard by the learned Chief Justice, he was of the opinion that

'whatever phraseology the Court may have employed, the effect of the operative part of its order is that the suit stands dismissed and nothing has remained to be done. It is not as if on the happening of some event, the Court will call back the record for proceeding further with the suit. So far as that Court is concerned, it has finally disposed of it. The final order is, therefore, decree, because in the present context the expression 'consigned to the record' is as effective as that 'the suit is dismissed'. He further observed that on the authority of the Division Bench of this Court in Puru-shottamdas Sakalchand v. Devkaran Kesheoji, AIR 1939 Nag 39 'the final order disposing of the suit is appealable as a decree. If a final decree has not been framed, the aggrieved party, who desires to appeal may take recourse to the procedure prescribed in Jagat Dhish v. Jawaharlal Bhargava, AIR 1961 SC 832.

19. On behalf of the petitioners an argument was advanced that the impugned order of the trial Court was a composite one as by that order it was first held that the suit is abated because of non-bringing on record the two legal representatives of the deceased-plaintiff and by the same order it has also disposed of the suit. Relying on the decision in Kanailal Mitra v. Pannasashi Mitra, AIR 1954 Cal 588, it was urged that the plaintiff has a right to come up in revision from the first part of the order whereby the trial Court has held that the suit has abated notwithstanding that the latter part of the order may amount to a decree. It was in these circumstances that the two questions were referred to a larger Bench.

20. In my opinion we are not concerned with the legality or propriety of the order passed by the Additional District Judge. The application under Order 22, Rule 3 of the Code of Civil Procedure (hereinafter referred to as the 'Code') that was filed by the applicants, in view of the facts stated above, had been allowed by the trial Court. This order obviously was under Order 22, Rule 5 of the Code, which contemplates that where a question arises as to whether any per-son is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. After substitution of the applicants in place of deceased Parmabai, the suit had proceeded and it was long thereafter that Gendabai had submitted an application. That application was admittedly barred by limitation. It was not an application under Rule 9 of Order 22 of the Code. Admittedly, the impugned order was not appealable under Order 43, Rule 1 (k) of the Code.

21. Brother C. P. Sen, J., in paragraph 9 of the order observed that

''Even in cases where a part of the order is not appealable while the other part of the order is appealable as a decree and the second part is followed as a necessary consequence of the first part of the order, normally a revision will not lie because the former order will merge in the decree.'

There is no difficulty when the order merely decides whether a person is or is not a legal representative, as such an order is admittedly not appealable. Admittedly the impugned order, unless it is not covered under Order 43, Rule 1 of the Code, could be appealable only if it amounts to a decree as defined in Code. In ultimate analysis the question that has to be considered is whether against the impugned order as it is, the present revision is competent.

22. In Purushottamdas Sakalchand v. Dovkaran Kesheoji. AIR 1939 Nag 39, the observation about there being ample authority for the view that an order that a suit abates is appealable as a decree has to be read in the context of the facts of that case as also of the decisions as have been referred to therein. It is clear from the observations in that decision that 'there is no doubt that the order has conclusively determined the rights of the plaintiff.........' Thus it is on the direction of the order in question in that decision that their Lordships construed to mean it as a decree.

23. As held in Niranjan Nath v. Hussain, AIR 1916 Lah 245 (FB) when a Court passes a purely formal order recognising the abatement which is a fait accompli such an order, though virtually disposing of the suit, does not adjudicate upon any rights and cannot be treated as a decree. However, if, on the other hand, the order of abatement is the result of an adjudication upon the rights of the parties with respect to a matter in controversy, and is not passed upon an application for the revival of the suit made under Order 22, Rule 9 of the Code, it amounts to a decree and is appealable as such.

24. A Full Bench of the Madras High Court in Venkatakrishna Reddi v. Krishna Reddi, AIR 1926 Mad 586, had also considered a similar question. The question before the Full Bench was--

'Whether an appeal lies against an order refusing an application of a person to be brought on record as the legal representative of a deceased plaintiff on the objection of the defendant when there is no rival claimant for being brought on the record as his legal representatives.' The applicant in this case prayed for being brought on record on the ground that he was the legatee of the daceased plaintiff and took under her will the properties in the suit. The District Munsif passed an order saying 'Subject to the proof of the genuineness of the will, the petitioner may be brought on record as the operation and validity of the will turns upon the findings of the first issue. On an inquiry about the genuineness of the will, the District Munsif held that the will was not genuine and as a consequence the provisional order about his having been brought on record fell to the ground. The Full Bench answered the question as follows: --

'For these reasons we are of the opinion that we should answer this reference by saving that no appeal lies against the order in this case, but we give no expression of opinion as to what would be the consequence if the petitioner appeals against the actual order of abatement or dismissal.'

I may here point out that in the instant case as a consequence of the different reasonings given by the trial Judge, the suit has not only been held to have abated but has even been consigned to the record room, which learned Chief Justice has rightly construed to mean dismissal of the suit.

25. This decision in Venkatakrishna Reddi's case (supra) was considered by a Full Bench of the Lahore High Court in Ramcharan Das v. Hiranand, AIR 1945 Lah 298 (FB). It was observed therein that 'the order of the trial Judge rejecting the application on the ground that the applicant was not proved to be the legal representative of the deceased, was not open to an appeal. There could be no appeal unless a decision under Order 22, Rule 3 of the Code could be held to amount to a decree and appealable as such. The learned Judges negatived the contention that the said order amounts to a decree. One of the reasons given was that although the trial Judge did mention about the non-surviving of the right to sue as a ground for disallowing the application under Order 22, Rule 2, but he did not record an order abating the suit on that ground and so in the absence of such an order, it cannot be said that there was in existence a decree from which an appeal could be filed. While referring to the Full Bench decision in Venkatakrishna Reddi's case (AIR 1926 Mad 586) (FB) (supra) their Lordships observed that the language as has been reproduced by them visualises the necessity of an actual order of abatement or dismissal in order to give rise to a possible right of appeal.

26. That such a distinction is to be drawn while considering the question about the remedy against this order is further clear from a decision of this Court in Babulal v. Jugalkishore, AIR 1954 Nag 254. In this case Babulal's application for being substituted in appeal in place of deceased Kaluram was rejected. There were three such appeals. Against such an order, separate appeals were filed. An objection was raised that there is no provision in law whereunder an order refusing to bring on record a person as a legal representative of a deceased party cannot be appealed from. The orders admittedly were not appealable under Order 43 of the Code. The contention that the consequence of this rejection of this application for substitution was abatement of the appeal and so 'the order must be deemed to be an order of abatement and so appealable as a decree', was negatived. The reasoning given was 'whether an order of abatement is appealable as a decree or not is to my mind not relevant to the present case, because the present appeals are not against an order of abatement, but against a different kind of order altogether. It may be that as a consequence of that order, abatement has taken place, but that is entirely a different matter.'

27. In Dumi Chand v. Arja Nand ILR 37 All 272: (AIR 1915 All 158), also a similar distinction was drawn, in that case, during the pendency of the appeal the plaintiff-appellant died leaving a widow. One Dumi Chand claiming himself to be the adopted son and the legatee of the deceased-appellant applied to be substituted in the appeal in place of the original plaintiff. That application was dismissed on merits. The appeal was preferred by Dumi Chand against that order. The learned Judges constituting the Division Bench upheld the objection that the appeal was not maintainable as neither the order amounted to a decree nor was the order passed either under Rule 9 or Rule 10 of Order 22 of the Code. The Court had not passed any order abating Or dismissing the appeal. Their Lordships also observed that-- 'It may also be possible to appeal against the order of the Court, when passed, dismissing the suit as having abated.'

28. The Full Bench of the Travancore-Cochin High Court in Aiyappan Pillai Keshava Pillai v. Kesavaru Jathavatharu Shattathiri, AIR 1953 Trav-Co 545 had examined the question of abatement for purposes of limitation under Article 182 of the Indian Limitation Act (since repealed). It was in that context that it was laid down that the effect of these provisions is only that the abatement takes place by operation of law and does not depend upon any order of the Court. However, in view of the language of Article 182 of the Indian Limitation Act, it was laid down that the preponderance of judicial opinion is in favour of the view that when the Appellate Court passes an order declaring that the appeal has abated and dismissing the appeal on that ground it is the final order coming under Clause 2, column III, Article 182 and that the period of limitation for the execution of the decree hi the case commences from the date of that order. On the question whether the dismissal of the appeal on the ground of its having abated, if amounts to a decree the learned Judges observed that a declaration that the suit or appeal is abated which abatement is the direct result of the default in the matter of taking the necessary steps to bring on the record the legal representatives of the deceased party cannot also amount to any formal expression of adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. In cases coming under these categories the decree under appeal remains intact and it is the only decree that is capable of being put into execution.

29. In Brij Jivan Lal v. Shiamlal, AIR 1950 All 57, Wanchoo, J. (as he then was) after referring to the different decisions observed as follows--

'A perusal of these four cases shows that they are clearly distinguishable from the case before me. The main point of dis-'tinction is that in the present case, there were other plaintiffs besides the plaintiff who had died and the Court when it held that the suit had abated, definitely decided the question that on the death of one plaintiff and the failure to bring his heirs on the record, the entire suit had abated. I do not think that it can be said that these four cases lay down that whenever there is an abatement for any reason and under any circumstances there can be no appeal because Order 43, Rule 1, Civil P. C. does not provide an appeal from such an order. Nor can it be said that these cases lay down that no order declaring that a suit had abated can ever have the force of a decree. It seems to me, therefore, that, where an order, to the effect that the suit had abated in its entirety, amounts to an adjudication of the rights of the remaining plaintiffs as in the present case, it will amount to a decree which would be appealable under Section 96 Civil P. C. That such a distinction exists will be clear from the trend of authorities of other High Courts which are of a date later than that of the decision in Moti Lal v. Bishambhar Nath, ILR 47 All 741 : (AIR 1925 All 431); in Raja Rampal Singh v Abdul Hamid, ILR 3 Luck 628 : (AIR 1928 Oudh 3621 a Full Bench of the then Chief Court held that where on the death of a plaintiff his heir applied under the provisions of Order 22, Rule 3 Civil P. C., to be entered as a legal representative of the deceased and to continue the suit and the Court, while recognising him to be the legal representative of the deceased, arrived at the conclusion that the right to sue had come to an end with the death of the deceased and decided under the provisions of Order 22, Rule 1 Civil P. C. that the suit had abated, the decision was a final adjudication which determined the matter in regard to the controversy in suit and the order giving effect to this decision was a decree within the meaning of Section 2(2), Civil P. C. and an appeal lay against it.'

His Lordship also referred to the Full Bench decision in Ramcharandas's case (AIR 1945 Lah 298) (FB) (supra) and in Niranjannath's case (AIR 1916 Lah 245) (FB) (supra). After referring to these two decisions his Lordship laid down as follows:--

'It seems to me that the distinction drawn in these cases is a very real one and should be drawn. In the first three cases of the Court, which are the only ones really dealing with the question of abatement, this point whether a distinction should be drawn between those cases of abatement where it is due to the failure of the heirs being brought on the record within the period allowed by law or due to the Court deciding that a particular applicant is not the legal representative, and those cases where the abatement is due to the Court deciding that the right to sue does not survive was not considered. In the latter class of cases, there is to my mind a decree meaning thereby a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The present case falls under the latter category while the three cases of this Court referred to earlier are apparently of the former type and, therefore, the order passed by the Munsif dismissing the suit amounted to a decree and was appealable.'

Dixit, J. (as he then was) in Arjun v. Bal-want, AIR 1954 Madh Bha 45 had placed reliance on this Allahabad decision.

30. In Raddulal Bhurmal v. Mahabir Prasad, AIR 195V Nag 269 V. R. Sen J, held that 'where the court rejects the application for making the preliminary decree in a mortgage suit final on the ground that one of the plaintiffs having died before the preliminary decree and his legal representative not having been brought on the record the whole suit abates, the rejection amounts to a decree and no revision is tenable as an appeal lies.

31. A Full Bench of the Oudh Court in Rampal Singh v. Abdul Hamid, AIR 1928 Oudh 362, held that the

' right to sue not surviving was an adjudication which conclusively determined the legal representatives' right in regard to a matter in controversy in the suit and was, therefore, a decree and was appealable.'

Wazir Hasan J., in a separate, but concurring order also observed that

'Matters in controversy in the suit are not merely matters which arise on the face of the plaint as at first presented. They may include matters which are of vital importance between the parties, but which may come to arise and in respect of which the parties may be at controversy at a subsequent stage of a suit, and the question as to whether a right to sue survives or not within the meaning of Rule 1, Order 22 Civil P. C., is such a matter.'

32. The general consensus of the judicial opinion as is clear from the different decisions, referred to above, is that an order passed under Order 22, Rule 5 of the Code is not a decree and so no appeal would lie against such an order. It also is clear that the abatement of a suit or an appeal, being the automatic consequence of the failure of the legal representatives being brought on record within the period of limitation and no formal order being necessary, an abatement on that count will not amount to a decree, there being no adjudication of the rights of the parties. The abatement of a suit or an appeal on the ground of right to sue not surviving has been taken as amounting to a decree.

33. Learned Additional District Judge while deciding point No. 'C' considered the question whether the five applicants who had been brought on record could lawfully represent the estate of the deceased plaintiff, Parmabai. From the reasons given by him while dealing with this question, it is implicit that his conclusion was that the applicants cannot represent the estate of the deceased. This further finds support from the fact that he held the suit to be abated under Order 22, Rule 3 (2) of the Code or that it is unfit to proceed for failure to bring on record two legal representatives, a son and a daughter of deceased plaintiff within the period of limitation. He in addition held them to be necessary party, may be as defendants. According to him on Parmabai's death, her son or sons from any of her husbands would be entitled to inherit from her. It is further clear from the impugned order that so far as the abatement was concerned, it was in the circumstances neither automatic nor a formal expression recognising abate-ment. The facts do not at all indicate that abatement was a fait accompli. The order clearly decides the right of the applicant-plaintiffs to file the suit for the reliefs as have been prayed for, on the basis of the alleged wills executed in their favour. I respectfully agree with the observations made by Wazir Hasan J. in his concurring order in Rampal Singh's case (AIR 1928 Oudh 362) (FB) (supra) to the effect that the 'Matters in controversy in the suit' may also include matters which are of vital importance between the parties and which may come to arise and in respect of which the parties may be at controversy at a subsequent stage of the suit, and the question as to whether a right to sue survives or not within the meaning of Rule 1, Order 22 C.P.C., is such a matter. They are not merely matters which arise on the face of the plaint. In my opinion, therefore, most of the questions that have been dealt with by the Additional District Judge are very well covered within the meaning of the words 'Matters in controversy in the suit.'

34. As a general rule, the legal representatives have to be brought on record and if any of them refuses to join as plaintiff or appellant, he could be impleaded as a defendant or a respondent. Their Lordships of the Supreme Court have in series of cases laid down that where the plaintiff or the appellant after diligent and bona fide inquiry ascertains as to who are the legal representatives of a deceased defendant or a respondent and brings them on record, there is sufficient representation of the estate of the deceased and there will be no abatement of the suit or appeal unless there is fraud or collusion. [Dayaram v. Shamsuddhri, AIR 1965 SC 1049; Ramdas v. Deputy Director of Consolidation, AIR 1971 SC 673; Mohammad Sulaiman Saheb v. Mobd. Ismail Saheb, AIR 1966 SC 792; and Dolai Maliko v. Krushna Chandra Patnaik, AIR 3967 SC 49). In Dolai Maliko's case (supra) their Lordships had approved of the decision in Mohammad Zafarvab Khan v. Abdul Razzac Khan, AIR 1928 All 532. It was held that when by an order which has become final, a certain person's name which has been brought on record in an appeal as the legal representative of the deceased appellant, it is not open to the respondent to urge that the appeal has abated, because some other heirs have been left out.

35. Rightly or wrongly the rights of the applicants with regard to the suit. property stand adjudicated. The matter could be examined from yet another point of view. The effect of the impugned order if not set aside would be that the applicants shall not be entitled to bring a fresh suit on the same cause of action, and some of the findings may even operate as res judicata between the parties.

36. Learned Chief Justice in his reference order, rightly felt that the final order is a decree. It would not be correct to say that only the orders wherein the Court finds that the right to sue does not survive would amount to a decree and in no other case. There may be other such orders also which may well be covered within the meaning of the word 'decree'. The observations of the Allahabad High Court in Dumichand's case (AIR 1915 All 158) (supra), of the Madras High Court in Yankata Krishna's case (AIR 1926 Mad 586) (FB) (supra) and of Lahore High Court in Ramcharandas's case (AIR 1945 Lah 298) (FB) (supra) also indicate that the actual order of abatement or dismissal can give rise to a right of appeal. In my opinion, the case in hand is of a type wherein in view of the order of abatement and dismissal an appeal would lie. In view of the facts as they are and the order of the Additional District Judge, I would answer the questions as follows:--

(1) Where one part of the order is not appealable, while the other part of the same is appealable as a decree, but the same is followed as a necessary consequence of the former part of the order, no revision would lie from the former part.

(2) Where it is held that by reason of some of the legal representatives of the deceased having not been brought on record, the suit cannot proceed and stands abated, no revision would lie from such an order, if in the latter part of the same order the suit is dismissed or is consigned to the record.


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