G. K. Misra, J.
1. Late Rai Bahadur Bhuyan Bhaskar Mohapatra died on 22-6-1938. Plaintiff Luximani was his first wife. Defendants are his sons and step-sons of the plaintiff. Plaintiff filed Original Suit No. 16 of 1959 on 21-3-1959 in the Court of the Subordinate Judge, Balasore, for partition of properties left by her husband. She died on 3-10-1961. The petitioner filed an application on 2-1-1962 for being substituted in her place on the allegation that he was adopted by her on 14-4-1958 and that on 16-7-1958 she executed a registered deed of adoption (Ex. 1) which was signed by her and his natural father. The learned Subordinate Judge dismissed this application on 28-7-1962. On 30-8-1962 the defendants filed an application for dismissing the suit as it had already abated. On the very day the learned Subordinate Judge passed an order to the effect :
'Defendant files a petition praying tnat the plaintiff died on 3-10-61 and one Bishnu Mohan Naik filed a petition for substitution of his own minor son Radha Mohan Naik (which ?) has been rejected on 28-7-1962. So they pray that orders be passed for dismissing the suit. The suit has abated.'
The Civil Revision is directed against the Order dated 28-7-1962 and no proceedings have been taken against the order dated 30-8-1962.
2. Mr. Mohapatra opposed the Civil Revision on the following grounds --
(I) Luximani was not entitled to adopt a son to herself when the step-sons are alive.
(ii) Even if the decision of the trial court that the petitioner is not the legal representative of Luximani is erroneous in law and fact, the High Court cannot interfere in revision as the trial Court had not acted illegally or with material irregularity in the exercise of its Jurisdiction.
(iii) The Order dated 30-8-1962, which conclusively determined the rights of the parties with regard to all the matters in controversy in the suit, is a decree under Section 2(2), C. P. C. As no appeal has been filed against the decree, it ha? become final and the interlocutory order dated 28-7-1962 cannot be set aside in revision.
Each of the aforesaid contentions requires close examination.
3. It is not disputed that Luximani had the capacity to take in adoption. She was of sound mind. Her husband was dead and she had the capacity to take a son under Section 8 of the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956), hereinafter to be referred to as the Act. Under Section 11(i), if the adoption is of a son, the adoptive mother by whom the adoption is mademust not have a Hindu son, son's son, or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption. This condition is mandatory. Luximani had no son or son's son or son's son's son; but she had step-sons, the defendants.
The question is whether these step-sons are the sons of Luximani by legitimate blood relationship. There was no blood relationship between Luximani and her step sons. The defendants cannot, therefore, be the sons of Luximani by legitimate blood relationship. Section 11(i) therefore did not stand in the way of Luximani validly adopting the petitioner. There is no force in the first contention.
4. For a proper appreciation of the second contention, the reason for which, the learned Subordinate Judge rejected the petitioner's claim as the legal representative of Luximani may be noted in his own words --
(i) Since the fact of adoption does not find a place in the plaint, the question is to be viewed with suspicion.
(ii) The focus of enquiry In the partition suit will shift to the question of adoption if the petitioner is permitted to be substituted.
He came to the ultimate conclusion --
(iii) It is patent that in spite of Ex. 1 the petitioner cannot prosecute the cause of action as originally framed during the lifetime of the deceased plaintiff in the connected partition suit.'
It is to be noted that the learned Subordinate Judge did not at all consider the question whether the petitioner was adopted by Luximani. The only point that he was called upon to enquire into and determine in the proceeding under Order 22, Rule 5, C. P. C. was whether the petitioner was the legal representative of the deceased plaintiff. Order 22, Rule 5 prescribes that where a question arises as to whether any person is or is not the legal representative of deceased plaintiff, such question shall be determined by the Court. The provision is mandatory. Despite it, the learned Judge refrained from recording any finding as to whether the petitioner was the adopted son of Luximani. Under Section 115(1)(b), C. P. C., the High Court can set aside the order dated 28-7-1962 as the learned Judge failed to exercise a jurisdiction vested in him. He had the jurisdiction to determine whether the petitioner was the legal representative of the deceased plaintiff. Without exercising his jurisdiction in that regard the learned Judge indulged in extraneous consideration as to what would happen if the petitioner was permitted to raise the question of adoption In a suit for partition. The order is liable to be quashed under Section 115(1)(b).
The order is also liable to be quashed under Section 115(1)(c), C. P. C. Its scope has been settled by a series of Privy Council decisions which were referred to in Keshardeo v. Radhakissen, AIR 1953 SC 23. Their Lordships also approved the dictum laid down in the order of reference in Narayan Sonaji v. Sheshrao Vithoba, AIR 1948 Nag 258 (FB). There is no dispute that the words 'illegally and with material irregularity' do not cover either errors of fact or of law. They do not refer to the decision arrived at, but to the manner in which, it Is reached. Para 32 in AIR 1948 Nag 258 (FB) gives a clear exposition of the scope of Section 115(1)(c) and may be fully quoted--
'I do not wish to be precise regarding this. In fact that is impossible as well as undesirable. But, generally speaking, certain matters are now regarded as essentialfor a fair trial. For example, both sides must be given an opportunity of speaking and of being heard. If they appear they must be heard. They must be given a chance of presenting their cases. The Judge must reach his conclusion judicially and not arbitrarily and so forth. Therefore, if a Judge refuses to hear the parties or one of them or he flips a coin instead of applying his mind to the case and giving a judicial decision, or if he acts arbitrarily, such as, deciding on the colour of a man's eyes or that of his hair, or gives no reason in cases where the law requires reasons to be recorded, then he is not complying with the prudence which the law prescribes for a fair and proper trial. In that event, interference is called for under Clause (c). But if he does all that and acts fairly and judicially, the matter cannot fall within Clause (c).'
Judged by this test, the learned Subordinate Judge exercised his jurisdiction illegally and with material irregularity in reaching his conclusion not judicially but arbitrarily and by ignoring the mandatory provisions of law. Section 16 of the Act prescribes that whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. The registered adoption deed (Ex. 1) is signed by the natural father, who gave the petitioner in adoption, and also by Luximani, who took the petitioner in adoption. On the production of Ex. 1, the Court shall presume that the adoption had been made in compliance with the provisions of the Act. In the absence of any rebutting evidence, the adoption is established. The learned Judge exercised his jurisdiction illegally and with material irregularity in not at all applying his mind to Section 16.
The learned Judge also did not apply his mind to Section 12, Proviso (c) of the Act. The section lays down that an adopted child should be deemed to be the child of his adoptive mother for all purposes with effect from the date of adoption. Proviso (c), however, says that the adopted child shall not divest any person of any estate which vested in her before the adoption. On the adoption of the petitioner he did not divest the deceased plaintiff of the estate which had vested in her before the adoption. If the learned Judge had taken into consideration this section, he would not have attached any value to his own observation to the effect 'Since the fact of adoption does not find a place in the plaint the question is to be viewed with suspicion.' So long as the deceased plaintiff was alive the petitioner had no right, title and interest in the properties belonging to her. It would have been wholly irrelevant to make any reference to the adoption of the petitioner by the deceased plaintiff in the plaint filed by her for partition.
Similarly, the observation of the learned Judge that 'the focus of enquiry in the partition suit will shift to the question of adoption if the petitioner is permitted to be substituted' is wholly illegal and irrelevant to the question of substitution. In the question of substitution, the issue of adoption is fundamental and must be determined. In such a determination, the suit for partition is not converted into one for adoption. The learned Judge exercised his jurisdiction illegally and with material irregularity in staying off the real issue from consideration. Thesecond contention is wholly without substance and must be overruled.
5. The following questions shall be answered with regard to the third contention.
(a) Is the Order dated 28-7-1962 appealable?
(b) Does the order dated 30-8-1962 amount to a decree? Is it appealable?
(c) if an appeal lies from the order dated 30-8-1962, has the petitioner locus standi to file such an appeal?
(d) Is the Order dated 30-8-1962 liable to be vacated if the order dated 28-7-1962 is quashed in the Civil Revision? and
(e) Is the order dated 30-8-1962 a nullity as it was passed behind the petitioner without a notice being given to him?
Q -- (a) An order under Order 22, Rule 5, C. P. C. is not appealable under Section 104 and Order 43, Rule 1, C. P. C. It does not also amount to a decree. In Ram Charan Das v. Hira Nand, AIR 1945 Lah 298 (FB) the question was critically examined and their Lordships held that a decision as to whether a certain claimant had or had not made out his right to represent an estate of the deceased plaintiff could not be regarded as a decree. Such an order did not determine any of the matters in controversy in the suit but dealt only with a collateral matter incidentally arising during the progress of the suit. The order dated 28-7-1962 does not amount to a decree. It may, however, be made clear that if the Court finds a particular person to be the legal representative of the deceased plaintiff, but yet passes an order that the suit abates on the ground of the right to sue not surviving on the death of a deceased party, then such an order is a decree and is appealable. Mr. Mohapatra also does not dispute this position. The order dated 28-7-1962 is therefore not appealable and a revision is competent.
Q. -- (b) The Order dated 30-8-1962 is consequential to the order dated 28-7-1962. Though the order is to the effect that the suit abates, it is based on the finding that the petitioner is not the legal representative of the deceased plaintiff. It does not conclusively determine the rights of the parties involved in the suit. Such an order also does not debar the petitioner from reagitating the same question in a separate suit and the order would not stand as res judicata. It is therefore not a decree within the meaning of Section 2(2), C. P. C.
Assuming, however, that it has all the elements of a decree within the meaning of Section 2(2), no appeal lies from the order itself until a formal decree is drawn up. In Bhagabat Sit v. Balaram Sit, ILR (1962) Cut 882 : (AIR 1963 Orissa 61), I held that no appeal lay against a judgment which had all the elements of a decree until a formal decree was drawn up and that an appeal lay only against the decree and not against the judgment. The reasons for such a conclusion were fully discussed in paragraphs 6 to 9 of the judgment and it is unnecessary to repeat the same. I endorse the aforesaid view. The result is that the order dated 30-8-1962 is a judgment, and as admittedly no formal decree has been drawn up, there is no right of appeal to the aggrieved party against that order.
Q. -- (c) In AIR 1945 Lah 208 (FB) the matter was fully considered. Their Lordships observed :
'It cannot possibly be stretched to confer on a person whom the trial Court has refused to implead as aparty, the right to appeal from the decree to which heis not a party and by which he is, accordingly, in no wise affected, and in such appeal to question the correctness of the order refusing to implead him.'
In support of the conclusion, their Lordships gave very cogent reasons which we respectfully accept. Ponnalagu Ammal v. State of Madras, AIR 1953 Mad 485, relied upon by Mr. Mohapatra, does not militate against the aforesaid view. Their Lordships accepted the following dictum in Province of Bombay v. Western India Automobile Association, AIR 1949 Bom 141.
'The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. But it is clear, and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England, the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of appeal. Therefore whereas in the case of a party to the suit he has a right of appeal, in the case of a person not a party to the suit who is affected by the order he has no right but the Court of appeal may in its discretion allow him to prefer an appeal.'
The aforesaid proposition is unquestionable. It rather emphasises the fact that the petitioner has no right of appeal against the order dated 30-8-1962 though he could apply for leave of the Appellate Court. In such circumstances there is nothing illegal in the procedure adopted by the petitioner in filing the Civil Revision in challenging the order dated 28-7-1962 without waiting for filing an appeal against the order dated 30-8-1962 after a formal decree had been, drawn up. In Kanailai Mitra v. Pannasashi Mitra, AIR 1954 Cal 588, the order against which a revision was filed was to the effect--
'The application failing the suit abates automatically. I order accordingly.'
Though the order was a composite one by which the petitioner's application for substitution was rejected and simultaneously the suit was dismissed as having abated, their Lordships held that a revision under Section 115, C. P. C. was maintainable. The present case stands on a much stronger footing.
Q. -- (d) In Sham Pershad Roy v. Hurro Pershad Roy, 10 Moo Ind App 203 (PC), their Lordships of the Judicial Committee held that the decrees under appeal were mere subordinate and dependent decrees and those decrees could not be held to have remained in force when the decree on which they were dependent had been reversed. This dictum was re-emphasised in Naganna Naidu v. Ravi Venkatapayya, AIR 1923 PC 167, though both the cases reflated to two different sets of facts. The order dated 128-7-1982 directly deals with the question whether the petitioner is the legal representative of the deceased plaintiff. If this order is set aside, the consequential order dated 30-8-1962! dependent upon and subordinate to the easier order must automatically fall to the ground. The facts are analogous to AIR 1953 SC 23 and Shiromani Gurdwara Prafrandhak Committee, Amritsar v. Raja Shiva Ratna Deo Singh, (S) AIR 1955 SC 576. Narandas Mathuradas v. British India Steam Navigation Co. Ltd., AIR 1960 SC 1058, relied upon by Mr. Mohapatra, is distinguishable on facts. In that case the decree, after remand, had reached a finality and the matter had not been kept alive. The order dated 30-8-1962 must also be vacated.
Q. -- (e) A reference to the order-sheet in the suit discloses that after the order dated 28-7-1962 was passed, the Court did not adjourn the case to any particular date for passing any consequential order. On 30-8-1962: the defendants filed an application for passing an order to dismiss the suit as it had abated consequential upon the rejection of petitioner's application for substitution. While it is argued that the petitioner should have filed an appeal against the order dated 30-8-1962, it is remarkable that a copy of the application was not served on the petitioner and the Court in dereliction of the principles of natural justice passed an order in the absence of the petitioner without directing service of a copy of the application on the petitioner. Rule 9 of Chapter I at. p. 5 of the General Rules and Circular Orders (Civil), Vol. I prescribes that in contested original suits, no application shall be filed unless copies thereof have been previously served on the pleader of the opposite party. This rule shall apply mutatis mutandis to all connected execution proceedings and miscellaneous judicial cases. In disregard of this mandatory provision and the principles of natural justice, the Court passed the order dated 30-8-1962 in the absence of the petitioner without his knowledge. So far as the petitioner is concerned, such an order should be treated as a nullity. I, however, express no final opinion on the matter. But the fact remains that it is not open to the opposite parties to contend that the petitioner should have filed an appeal against the order. He was ignorant of such; an order which, was passed behind his back, and the powers of the High Court under Section 115, C. P. C. are wide enough to interfere with the order dated 23-7-1962 despite the fact that no proceedings have been taken to challenge the order dated 30-8-1962.
6. All the contentions raised by the opposite parties fail. Now the question for consideration is whether the case is to be remanded to the trial Court for determination of the point whether the petitioner is: the adopted, son of Luximani. As I have already said, the trial Court has not determined this question at all. I would accordingly set aside the orders dated 28-7-1962 and 30-8-1962 and remand the case with a direction that the trial Court, after giving full opportunities to the parties to adduce evidence, would determine whether the petitioner was adopted by Luximani. If the finding is that he is the adopted son, the petition for substitution be allowed.
7. In the result, the revision is allowed, the case is remanded to the Subordinate Judge, Balasore for disposal in accordance with law and the aforesaid directions, costs would abide the result. As the case is long pending, it is hoped that the substitution matter would be disposed ot as quickly as possible.
8. I agree.