G. Balagangadharan Nair, J.
1. The facts necessary for the disposal of this appeal are the following :
The appellant who was the second defendant and his mother, who was the first defendant in a suit for redemption of a mortgage. Ext. PI dated 20-3-1090 had appealed to the Subordinate Judge's Court, Trichur from the decree of the Munsiff, Trichur dated 17-2-1969 by which the plaintiffs and defendants 3 to 10, 18 to 21, 26, 40, 41, 49 to 52 and 58 were allowed to redeem their shares in the suit property, I am not extracting the further provisions of the somewhat curious decree but might only note that as there was no prayer for partition in this suit and it was not known who would obtain shares in the property, the court provided that 'the various sharera will seek appropriate directions in the court passing the final decree in O. S. 87 of 1957, subject of course to such directions, if any, that may be found just and proper, in the circumstances of the case, by this Court while passing the decree.' O. S. 87 of 1957 is a suit for partition of the tarwad properties including the suit property, of the parties in the present case: While the appeal was pending in the Subordinate Judge's Court respondents 15 to 1'8 filed an application I. A. 1980 of 1972 on 23-10-1972 alleging that respondents 64 and 65 (defendants 55 and 56) had died in 1970 and 1969 respectively, that as their legal representatives had not been brought on record the appeal had abated and praying that they (the applicants) be therefore awarded their costs. In the wake of this motion the appellants made three applications on .6-11-1972 : I. A. 2045, 2046 and 2047 of 1972. I. A. 2046 was to substitute the wife and children of respondent 65 as his legal representatives and to record the other members of the tarward as the legal representatives of respondent 64 who had left no wife or children surviving him. I. A. 2045 was to set aside the abatement caused by the omission to implead the legal representatives in time. In the affidavit sworn by the first appellant (the present appellant's mother) she stated that they came to know about the deaths of respondents 64 and 65 only from I. A. 1980 of 1972, that there was no communication with these respondents who were long settled in England and that even the dates of their deaths are not given in I. A. 1980 of 1972 nor are otherwise known. By I. A. 2047 the appellants prayed for condoning the delay in applying to set aside the abatement and supported the prayer by a similar affidavit. Subsequently on 29-1-1973 respondents 15 to 18 filed another application, I. A. 154 of 1973 with a similar prayer as in I, A. 1980 of 1972. This application was grounded on the statement that although respondent 61 (defendant 52) had died on 2-10-1972 his legal representatives had not been brought on record till then. The appellants thereupon filed two applications on 7-2-1973, I. A. 203 to implead the legal representatives of respondent 61 and I. A. 202 to set aside the abatement. In the supporting affidavit which was also sworn by the first appellant she stated that the omission to implead the legal representatives occurred because she was old and ailing and was an inpatient in the District Hospital, Trichur for heart trouble of which she had not yet fully, recovered.
2-3. The court below disposed of all these five applications by a common order dated 25-6-1973. As the parties were agreed that the legal representatives of the 64th respondent were the members of the tarward who were already on the party array none needed to be impleaded, the court held that there was no abatement of his rights in the property. It dismissed I. A. Nos. 202 and 203 of 1973 which concerned the 61st respondent, holding that there was no evidence that the first appellant was ill and that her old age was no ground to set aside the abatement. With respect to the 65th respondent, the court expressed the view that normally it would have been possible to believe that the appellants had no knowledge of his death as he was in England and out of contact with them but the court held against them on the ground that they must have had knowledge of his death in 1969 as an application had been made in O. S. 87 of 1957 with notice to their advocate in that case for impleading his legal representatives. The court discounted the appellants' plea that they had no information from their advocate in O. S. 87 of 1957 on this point, in the view that notice to the advocate is notice to the party. On this reasoning the court dismissed I. A. Nos. 2045, 2046 and 2047 of 1972 in so far as they concerned the rights of the 65th respondent.
4. On the basis of these findings the court subsequently heard the appeal and holding that the abatement of the appeal as against the two respondents operated as abatement of the entire appeal the court dismissed it by the judgment dated 7-11-1973, while expressing the view that on the merits it 'would have been inclined to hold that the suit itself is not maintainable before the final allotment of shares by the prospective decree in O. S. 87 of 1957.' The first defendant died before the decision of the court below and this appeal has been filed by the second defendant.
5. Counsel for the appellant challenged the order of the court below dated 25-6-1973 dismissing I. A. Nos. 2045, 2046 and 2047 of 1972 partially and I. A. Nos. ' 202 and 203 fully. While seeking to meet this contention on the merits counsel for certain of the respondents objected that this contention was not open to the appellant in the appeal from the decree. Before taking up this objection I shallconsider the merits of the appellant's contention against the order dated 25-6-1973.
6. The 61st respondent died on 2-10-1972 and I. A. Nos. 202 and 203 were filed on 7-2-1973, within sixty days of the abatement. The ground alleged by the first appellant for her default to bring the legal representatives on record in time was her old age and confinement for heart trouble in the District Hospital--grounds which have not been countered. The affidavit thus stands and the applications therefore deserve to be allowed. As to the 65th defendant, the court held against the appellants fixing them with constructive knowledge of his death on the ground that their advocate in O. S. 87 of 1957 had notice of the impleading application filed within time in that case, rejecting the appellants' plea that the advocate had not communicated that information to them, on the reasoning that notice to the advocate is notice to the party. It was urged for the appellant that as the court below has not disbelieved or discarded the appellants' plea of absence of communication from their advocate in O. S. 87 of 1957, the ground of lack of timely knowledge of the death of the 65th defendant should have been accepted and the applications allowed. Whether the lawyer had conveyed this information to the appellants is a matter of proof and it is not a question that properly admits of decision on the theory of constructive knowledge. The appellant should in the circumstances be allowed an opportunity to give evidence that neither he nor the first appellant had information from the advocate nor had they knowledge of the 65th respondent's death otherwise, until I. A. 1980 of 1972 was filed in court.
7. Turning to the objections raised by, the respondents, the first contention was that the order of 25-6-1973 being appealable under O. 43, R. 1 (k), C.P.C.. it can be challenged only in an appeal therefrom and not in an appeal from the decree. Alternatively counsel contended that the order is not appealable as Order 43, Rule 1 (k) covers only orders refusing to set aside abatement of a 'suit' and not of an appeal as in this case. In any case, counsel argued that the order cannot be challenged under Section 105, C.P.C. in the appeal from the decree. It is unnecessary to decide whether Clause (k) applies only to orders in suits and not inappeals--on which there is a difference of judicial opinion--for if Section 105 can otherwise be invoked, it is immaterial whether the order is appealable or not. Sub-section (1) of Section 105 starts by enacting that save as otherwise provided, orders are not appealable and proceeds to say in the second limb of the sub-section that '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.' The expression 'any order' is general and there is nothing that restricts it to appealable or non-appealable orders. That it comprehends both types of orders is further apparent from Sub-section (2) which contains a special provision excluding appealable orders of remand from challenge, in appeals from decrees. The position is also well settled by judicial decisions of which it is necessary only to note Satyadhyan v. Smt. Deorajin Debi, AIR 1960 SC 941. The Supreme Court traced the evolution of Section 105 and noticed how the expression 'such order' which occurred in Section 591 of the Code of 1877 and was retained in the subsequent Code of 1882, was substituted by the words 'any order' in Section 105 of the present Code. After pointing out that the expression 'such order' in Section 591 gave rise to a contention in some cases before the Privy Council that the Section applied to non-appealable orders only, that the contention was overruled by the Privy Council and that this view was adopted by the legislature by changing the words 'any such order' to 'any order', the Supreme Court held (at p. 946):
'It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order.' The same view has been taken in several cases both before and after this pronouncement. The respondents' contention on this point thus fails.
8. The most important point raised by the contesting respondents was however that the error, defect or irregularity if any in the order of 25-6-1973 holding that the appeal has abated on the deaths of respondents 61 and 65, cannot be questioned in this appeal as it did not affect the decision of the case. It was pointed out that the words 'affectingthe decision of the case' mean affecting the decision of the case on the merita while the position here was a dismissal of the appeal not on the merits but on the ground of abatement, a situation out-side the scope of Section 105. In support of this contention counsel relied upon a number of authorities which require to be noticed to see whether they support him,
9. Balabai v. Ganesh, (1903) ILR 27 Bom 162, which is the earliest of the cases cited, involved no question of dismissing a suit on abatement; what happened there was that the lower appellate court dismissed a suit holding that a person who had come on record as the legal representative of the plaintiff was not his nearest heir. On appeal the High Court set aside this decision holding that the lower appellate court was wrong in going into this question. It was further held that even if the order of the trial Court in recognising the legal representative fell within Section 367 of the Code of 1882 (corresponding to Order 22, Rule 5) the defendant who was the appellant before the lower appellate court had failed to show how the order had affected the decision. This case has obviously no application.
10. So is the next case, Niddha Lal v. Collector of Bulandshahr, 35 Ind Cas 209: (AIR 1917 All 434) which held that an order setting aside abatement under Order 22, Rule 9 and restoring a suit to file cannot be challenged under Section 105 in an appeal from the decree as the order did not affect the decision of the case. A later Allahabad case, Babu Ram v. Banki Behari Lal, AIR 1925 All 426 cited for the respondents also took the same view that an order setting aside abatement is not liable to attack under Section 105 as it does not affect the merits of the case. The court put it on the same footing as an order setting aside ex parte decree and relied upon 13 All LJ 1089: (AIR 1915 All 483) which had held so.
11. Before turning to the decisions of certain other High Courts it is better to notice Badri Prasad v. Amjid Ali, AIR 1933 All 294. The trial court refused to set aside abatement of the suit caused by the death of one of the defendants and in appeal the plaintiff sought to get the abatement set aside, but the lower appellate court confirmed the trial court's decision and dismissed the appeal. Inthe second appeal the plaintiff's prayer to set aside the abatement was resisted by the respondent, one of the grounds of the resistance being that it could not be done under Section 105. In rejecting this objection the court held:
'It is true that no second appeal lies from an order, but an order may be questioned in a second appeal if it 'affects the decision of the case'. What affects the decision of the case has been stated in many decided cases under different circumstances. An order setting aside the abatement does not affect the merits of the case, because the result ia that the parties are before the court and the court adjudicates in the presence of the parties. Every one of the parties is present there to represent his case, and therefore, the decision is not affected, But where an abatement is not set aside the result is that certain parties are dismissed from the case, and so far the parties go out of the case, the other party has no remedy left. The decision therefore is given not on the merits but on a purely technical ground. We are of opinion that in second appeal the order refusing to set aside the abatement may be questioned.'
This decision definitely supports theappellant.
12. Of the two Calcutta cases, Mohamad Nuru v. Manohar Saran, AIR 1925 Cal 473 (it is also reported at page 766 of the same volume) and Maiyarjan Bibi v. Abdul Shek, AIR 1933 Cal 498, the former requires greater notice. In AIR 1925 Cal 473 the trial court by its judgment set aside the abatement caused by the deaths of the plaintiff and defendant and granted the plaintiff a decree. The first appellate court dismissed on the merits the appeal by the substituted defendants and on the objection about the setting aside of the abatement, the court observed that it could not be challenged in an appeal from the final decree. This view was contested by the defendants on the further appeal in the High Court, contending that the expression 'decision of the case' means any question which will influence the ultimate decree to be passed by the court. After noting that (1903) ILR 26 Mad 604 and (1912) ILR 34 All 592 supported this contention, the court observed that it was however confronted with its decisions which assign to the expression 'affecting the decision of the case' the meaning 'affecting the merits of the case or affecting the decision of the case with reference to its merits'. Reference was made to (1895) ILR 22 Cal 984 and (1905) 9 Cal WN 584 and two decisions of the Allahabad High Court (1902) ILR 24 All 464 and (1903) ILR 25 All 280. The court then observed:
'If we were untrammelled by authorities we might have felt disposed to reconsider the meaning of the expression but as they stand we feel ourselves bound to follow them.'
The court also rejected the appellant's contention which was supported by (1900) ILR 22 All 430 that an order setting aside the abatement can be questioned in the appeal from the decree where the order is passed in the judgment on the ground that that circumstance is immaterial, as the relevant principle is whether the order is one which affects the decision of the case with reference to its merits and the character of the order remains the same whether it is passed along with the decree or before the decree as happened in Niddha Lal v. Collector of Buland-shahr, 14 All LJ 610: (35 Ind Cas 209): (AIR 1917 All 434). While holding that the order setting aside the abatement cannot be questioned in the appeal, the court made the following observations:
'By denying the right of appeal against an order restoring a suit or setting aside an abatement while granting it in the case of refusal to pass such order the legislature may be taken to have intended that it is desirable in the interests of justice, that a case should be tried on the merits where the trial court is of opinion that it should be so tried and so such opinion should not be subject to revision by another court. By allowing such a decision of the trial court to be challenged in appeal after the termination of the trial, may be after enormous expense of time and money occasioned by the act of the court, is to defeat the intention of the legislature and put the party winning on the merits to unnecessary loss for which he is not responsible.'
This was not a case where the court refused to set aside abatement and yet it is important for the observations which I have just extracted, as I shall be explaining below.
13. Maiyarjan Bibi v. Abdul Shek, AIR 1933 Cal 498, has little application. The question there involved concerned the effect of substitution of some of theseveral legal representatives of a plaintiff and the right of the defendant to challenge it in the appellate court in the appeal from the decree. The court held that where the omission is bona fide, there is no abatement and that so far as the Calcutta High Court was concerned 'it is well settled that an order allowing a substitution or setting aside an abatement passed by a trial court cannot be questioned in an appeal from a decree in view of the provisions of Section 105 C.P.C.' There was no abatement or setting aside or refusal to set aside abatement in that case.
14. Bhola Ram v. Arjan DAS, AIR 1933 Lah 152, the only decision of the Lahore High Court brought to my notice was a case of setting aside abatement and followed AIR 1925 Cal 766.
15. It remains now to consider Kalliani Amma v. Madhavi Amma, 1964 Ker LT 32, a decision of this Court. On the death of the sole plaintiff his wife and children were brought on record as additional plaintiffs 2 and 3 and certain legatees under his will were brought on record as additional defendants 2 to 9-There was dispute between these two sets of parties about the validity of the will and the trial court finding the will to be valid and genuine dismissed the suit. On appeal by plaintiffs 2 and 3 the appellate court set aside this finding and declared them to be the heirs of the original plaintiff. Defendants 2 to 9 thereupon filed a second appeal contending that the appeal by plaintiffs 2 and 3 to the lower appellate court claiming to be the legal representatives was incompetent. The learned Judge held that the order of the trial court was one under Order 22, Rule 5 and that:
'the decision as to the right to represent the estate is one which cannot affect 'the decision of the case' within the meaning of Section 105, C.P.C. The dispute between the rival representatives is but an interlude, which does not affect the merits of the case against the defendant against whom the relief is sought.'
The learned Judge relied upon AIR 1933 Cal 498, (1903) ILR 27 Bom 162 and AIR 1919 Mad 971 (1).
16. Among the decisions which I have discussed at some length, the only case that applies is AIR 1933 All 294 which alone was concerned with anorder refusing to set aside abatement The effect of such an order is to dismiss the suit and it is impossible to hold that such an order falls outside Section 105 and does not affect the decision of the case, for it prevents the plaintiff from prosecuting his claim and obtaining a decision in his favour. Such an order cannot be equated with an order setting aside abatement -- indeed the Code itself draws a distinction between them as pointed out in AIR 1925 Cal 473 -- and the cases cited for the respondents are cases which involved orders setting aside abatement or orders of determination under Order 22, Rule 5. 1964 Ker LT 32 on which the respondents placed particular reliance involved an order under Order 22, Rule 5; so also AIR 1933 Cal 498 and (1903) ILR 27 Bom 162, two of the cases followed therein on which also the respondents relied. In 1964 Ker LT 32 the contest in the first appellate court was between the rival claimants to the estate of the deceased plaintiff and the order in favour of one party can hardly be said to affect the decision of the case. In my view the cases quoted by the respondents have no application; the only case that applies is AIR 1933 All 294 and I follow that decision. In that view the appellant is entitled to contest the order dated 25-6-1973.
17. I set aside the order dated 25-6-1973 rejecting I. A. Nos. 202 and 203 of 1973 and I. A. Nos. 2045, 2046 and 2047 of 1972. I. A. Nos. 202 and 203 of 1973 are allowed and I. A. Nos. 2045, 2046 and 2047 of 1972 to the extent they concern the 65th respondent are remanded to the lower court for disposal after affording the appellant an opportunity to give evidence. The court will thereafter dispose of the appeal in the light of its finding.
The judgment and decree are set aside and the appeal is remanded to the lower appellate court for fresh disposal in accordance with law and in the light of the observations made above. The court-fee paid on the memorandum of appeal will be refunded to the appellant's counsel. I make no order as to costs.