R.C. Patnaik, J.
1. This revision is directed against an order directing abatement of a proceeding under Order 9, Rule 13 of the Civil P. C. for getting aside an ex parte decree.
2. Opposite Parties 1 to 3 filed Title Suit No. 6 of 1972 for a declaration that they and opposite party No. 4 (pro forma defendant No. 2) and one Parbati (pro forma defendant No. 3) had right title and interest in the suit property and for confirmation of possession of the aforesaid person and in the alternative for recovery of possession in case they were found to be dispossessed.
3. After a chequered career the suit was posted for hearing on 19-9-78. As the defendants did not appear when the suit was called on for hearing, ex parte hearing was taken up and the ex parte decree was passed on 22-9-78 declaring the right, title and interest of the plaintiffs. The ordering portion runs thus:--
'the suit is decreed ex parte against the defendant No. 1 with cost and against others without costs as no relief claimed against them. The plaintiffs' right, title and interest over the suit and is hereby declared and their possession over the same is confirmed............'
It would be evident that no decree was passed in favour of the pro forma defendants 2 and 3, viz., opposite party No. 4 and Parbati though the plaintiffs sought such a relief.
4. On 6-10-78, the petitioner filed an application under Order 9, Rule 13 of the Civil P. C. for setting aside the ex parte decree. Opposite party No. 4 and Parbati were impleaded along with the plaintiffs as opposite parties. It was reported by the process server that Parbati had expired on 3-8-79. On 23-11-79, a memo was filed by the petitioner stating that as Parbati Rath was set ex parte in the original suit, the petitioner did not press the proceeding against her. Subsequently on 2-1-80, two petitions were filed--one for setting aside abatement and the other for condonation of delay. On 24-1-80, a petition was filed by the petitioner stating that one Binodini Sathpathy was the legal representative of Parbati. Opposite party Nos. 1 to 3 objected stating that there was no sufficient cause for setting aside abatement and condonation of delay. The petitioner submitted that the memo dated 23-11-1979 was filed by a junior counsel and for this mistake, the petitioner should not suffer. The learned Munsif held that there was no sufficient cause for setting aside abatement and condonation of delay and directed abatement of the proceeding as against Parbati and further held that the abatement of the proceeding against Parbati entitled total abatement of the proceeding.
5. It is worthwhile to mention here that the memo dated 23-11-1979 filed by the petitioner was accepted by the court, The result was that the name of Parbati stood expunged from the record. Of course otherwise by her death, she was no longer a party to the proceeding.
6. This revision is directed against the order directing total abatement of the proceeding under Order 9, Rule 13 of the Civil P. C. A preliminary objection was raised by the counsel for opposite party Nos. 1 to 3, namely, the order was appealable and revision did not He to this Court. Mr. S. C. Mohapatra, the learned counsel for opposite party Nos. 1 to 3, submitted relying upon a few authorities that the order was appealable under Order 43. Rule 1 (k) of the Civil P. C. Order 43, Rule 1 (k) reads as follows:--
'Rule 1. Appeals from orders.--An appeal shall lie from the following orders under the provisions of Section 104, namely:- (k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;'
7. Mr. Mohapatra contended that the expression 'suit' in Clause (k) included a proceeding under Order 9, Rule 13, and hence an appeal lay but having regard to the valuation, not to this Court.
8. Mr. B. Patnaik, the learned counsel for the petitioner submitted that the proceeding under Order 9, Rule 13 of the Civil P. C. was not a suit and the order directing abatement of the proceeding or its dismissal on account of abatement was not appealable under Order 43, Rule 1 (k) of the Code.
9. Now I turn to the authorities cited by Mr. Mohapatra :
In Mir Wajid Ali v. Fagoo Mandal, (AIR 1938 Pat 125) ft was held that an appeal lay from an order refusing to set aside abatement of an appeal. By reason of Rule 11 of Order 22, Rule 9 applied to appeals and the expression 'suit' in Order 43. Rule 1 (k) included an appeal and an order directing abatement of an appeal was appealable. The same view was taken in Ram Ranbijaya Prasad Singh v. Madho Turha (AIR 1939 Pat 623), and also in Raju Mudali v. Chinnaraju Naidu (AIR 1941 Mad 51). In Ganpat Bapuji v. Shri Maruti Deosthan (AIR 1952 Nag 181) on account of death, there was abatement of an appeal. It was held that by reason of Order 22, Rule 11, the word 'suit' in Order 43. Rule 1 (k) included an appeal and an order directing abatement of an appeal was appealable. In Indian Aluminium Co. Ltd. v. Third Industrial Tribunal, (AIR 1973 Cal 315) it was held that the provisions contained in Order 22 were applicable to proceedings under Article 226 of the Constitution by reason of Section 141 of the Code and an order directing abatement of writ proceeding was appealable. The ratio of this case has no application to the facts of the present case.
Mr. B. Patnaik, the learned counsel for the petitioner, relied upon Mahboob Hasan Khan v. Syed Bashir Husain (AIR 1961 All 527), where it was held that the word 'suit' in Order 43, Rule 1 (k) did not include an appeal The same view was taken in Dahyabhai v. Bhaishanker Pitambar (AIR 1963 Guj 258); Satpal v. Budha Lalji (AIR 1968 Punj 70) and Radheshyam Shaw v. Corporation of Calcutta (AIR 1973 Cal 278). In the last mentioned decision their Lordships held that the word 'suit' in Order 43, Rule 1 (k) did not include an appeal.
10. Mr. Mohapatra submitted that in view of the decisions which applied to the provision contained in Order 43, Rule 1 (k) to appeals, on pari materia reasoning, the provision of Order 43, Rule 1 (k) applied to proceedings under Order 9, Rule 13 of Civil P. C.
11. There may be some justification for applying Order 43, Rule 1 (k) to order of abatement of an appeal. An appeal is a continuation of the suit. I am, however, not called upon to decide the said question. So far as this Court is concerned, the question would be decided on an appropriate occasion. But I cannot see how the provisions of Order 43, Rule 1 (k) can be applied to an order of abatement of a miscellaneous proceeding, or to a proceeding under Order 9, Rule 13 of the Civil P. C. The proceeding is neither a suit nor a continuation of the suit. Right of appeal is a creature of the statute and should be created expressly. I am, therefore, of the opinion that however may be the position in regard to abatement of an appeal, the provision of Order 43, Rule 1 (k) has no application to a miscellaneous proceeding under Order 9, Rule 13 and an order directing abatement of a proceeding under Order 9, Rule 13 of the Code is not appealable and this revision is, therefore, maintainable.
12. Mr. Patnaik for the petitioner contended that the ex parte decree was passed in favour of opposite party Nos. 1 to 3 only and not in favour of opposite party No. 4 and Parbati. Whatever might have been the relief sought in the plaint, the ex parte decree was passed only in favour of the said opposite parties. Hence Parbati was not a necessary party to the proceeding under Order 9, Rule 13 of the Code and the proceeding could be maintainable notwithstanding the expunction of her name on account of her death and non-substitution of her legal representatives.
13. As it is seen from the ex parte decree that was passed, no relief was granted to Parbati. Rather the decree was passed in favour of opposite parties Nos. 1 to 3 and against her. The learned Munsif lost sight of this fact while considering the question of abatement. He also committed an error of record in holding that a joint decree had been passed in favour of the plaintiffs and defendants 2 and 3. The ex parte decree has been quoted above. It would appear therefrom that the decree was passed in favour of the plaintiffs and against the defendants including defendants 2 and 3. This error has vitiated the approach and the conclusion of the learned Munsif. Mr. Patnaik in this connection also drew my attention to a decision of the Supreme Court in Smt. Rani v. Smt. Santa Bala Debnath (AIR 1971 SC 1028) and contended that since no relief was claimed against Parbati in the proceeding under Order 9, Rule 13, there was no abatement.
In the facts and circumstances, I am of the opinion that the miscellaneous proceeding did not abate and the learned Munsif exercised jurisdiction illegally by directing abatement of the proceeding under Order 9, Rule 13. The order is therefore set aside.
14. The proceeding was not been disposed of on merits. I direct that Miscellaneous Case No. 26 of 1978 be disposed of as expeditiously as possible. There would be no order as to costs.