Sadasiva Aiyar, J.
1. The appellant was the plaintiff in Original Suit No. 178 of 1911 on the file of the District Munsif's Court of Dindigal. The only defendant in the suit died in March 1912. On the 15th April 1912, the plaintiff applied to bring in the defendant's son Perumal Chetty on the record as the defendant's legal representative. He failed to mention the Order and rule of the Civil Procedure Code, under which the application was filed. On the 23rd April 1912 the Court returned the application to him for amendment giving him three days' time to take it back, amend and re-present it. The District Court transferred the suit about the end of April 1912 to the District Munsif's Court of Melur for disposal. The records were sent away from the District Munsif's Court of Dindigal accordingly to the District Munsif's Court of Melur but retaining the above application (which was not taken back by the plaintiff for amendment and re-presented). The other records were sent away from the District Munsif's Court of Dindigal on 25th May 1912 and the suit was numbered Original Suit No. 634 of 1912 on the file of the District Munsif's Court of Melur. The plaintiff's application which he had been ordered to take back seems to have been sent to the District Munsif's Court of Melur separately in October 1912. Then on the 13th November 1912 the plaintiff put in a petition in the Melur District Munsif's Court to excuse the delay in taking back, amending and re-presenting the application. The petition was ordered without notice having been sent to the respondent (the deceased defendant's son) and he was brought on the record and was designated as the 2nd defendant in the case. When summons was served on him, he contended that the suit had abated in September 1912 on the expiry of six months from his father's death, that the plaintiff had no right after the suit had abated to put in any application in the suit other than an application to set aside the abatement, as the suit must be taken to have come to an end on the abatement and that the order of the Court extending time for re-presenting the application to bring in the legal representative and directing the legal representative to be brought on record was passed without jurisdiction. Thereupon an additional issue was framed in the suit, namely, 'Whether the suit should abate for thereasons given in the written statement of the 2nd defendant'?
2. The District Munsif decided this issue in the 2nd defendant's favour and dismissed the suit with costs on 17th March
3. The plaintiff then filed Civil Revision Petition No. 513 of 1913 under Section 115, Civil Procedure Code, in this Court. Mr. Justice Ayling dismissed the revision petition, on the ground that the decree of the District Munsif was appealable and hence no petition lay under Section 115 of Act V of 1908 to the High Court.
4. This Letters Patent Appeal is against the above order of the learned Judge, the grounds of appeal being:
2. The learned Judge erred in holding that the order sought to be revised was a decree and hence appealable.'
3. The learned Judge failed to note that the order in question did not conclusively determine any of the rights of the parties in controversy in this suit and as such was not a decree within the meaning of the Civil Procedure Code of 1908.'
4. The learned Judge should have interfered at least on the ground that there is no defence to the contentions of the petitioner and that any appeal to the District Court would only multiply proceedings.
5. The fourth ground cannot be accepted, as where there is an appeal to the District Court and a second appeal to the High Court, Section 115 cannot apply. See Visvanathan Chetty v. Ramanathan Chetty 24 M.k 646 and Subbiah Pillai v. Kailasam Pillai 26 Ind. Cas. 19.
6. As regards the other two grounds, there are no doubt observations in certain decisions of the Calcutta and Allahabad High Courts [see Hamida Bibi v. Ali Husen Khan (1895) A.W.N. 42, and Walayat Husain v. Ram Lal 25 Ind. Cas. 643 : 12 A.L.J. 1113 which support the appellant's contention, but on the other hand this Court has held in Subbayya v. Sami-nadayyar 5 M.L.J. 63, and in Meenatchi Achi v. Ananthanarayana Ayyar 12 M.L.J. 380, following Bhikaji Ramchandra v. Purshotam 10 B.k 220, that an order declaring a suit to have abated is a decree from which an appeal lies. The appellant's learned Vakil, Mr. K.S. Jayarama Aiyar, has called our attention to the fact that whereas under Section 366 of the old Code, when a plaintiff died the Court had to pass an order that the suit shall abate if no application is made within the time limited by law, etc., under Order XXII, Rule 3, of the new Code the suit abates without a formal order of the Court that the suit shall abate. But I do not think that this makes any difference in principle. Under the old Code, Section 368, when a defendant died and the right to sue survived but the plaintiff failed to make a proper application within the period prescribed, the suit abated without any formal order. It was only to make the wording of the provisions prescribed for the two sets of circumstances to conform with one another as far as possible that Order XXII, Rule 3, has used the words 'the suit shall abate' instead of the expression in the old Section 366 ''the Court may pass an order that the suit shall abate.' The practice in the Madras Courts so far as I know is that when the suit has abated, the Court also ipso facto dismisses the suit, that is, it takes it off from the file of the pending suits. Though Order XXII, Rules 3 and 4, do not expressly state that the abatement of a suit is of the same effect as the dismissal of the suit, I think that that is the meaning of the Legislature and in Subbayya v. Saminadayyar 5 M.L.J. 63 there was a decree dismissing the suit drawn up on the abatement of the suit and against that decree the learned Judges held that an appeal lay. Again the analogous Order XXII, Rule 8, (old Section 370) states in Clause (1) that the insolvency of a plaintiff shall not cause the suit to abate if the assignee or Receiver wishes to continue the suit. And then in Clause (2) it is said that if the assignee or Receiver neglects or refuses to continue the suit and the defendant applies for the dismissal of the suit, the Court may, make an order dismissing the suit. Thus the abatement of the suit and the passing of an order which has the force of a decree dismissing the suit are treated as closely connected, if not identical, proceedings. I might, however, suggest that the Rule Committee might make it clear by the enactment of a rule that in cases where suits have abated without the necessity of a formal order, a decree dismissing the suit should be drawn up as on the date of the abatement, unless of course the abatement is set aside by appropriate proceedings. In Subramania Iyer v. Venkataramier 31 Ind. Cas. 4 myself and Napier, J., held that an order of the Court declaring that the suit has abated owing to the cause of action not surviving, was a decree as it determined that the rights of the plaintiff ceased to exist on his death and, therefore, it fell within the definition of a decree, 'there being no appeal provided for in the Code from that order as an appeal from an order. See exception (a), Section 2, Clause (2), Civil Procedure Code.' Mr. Jayarama Iyar, however, argued that the definition of a decree in Section 2, Clause 2, applied only where the orderdisposing of the suit contained an express adjudication on the defences raised by the defendant or the rights set up by the plaintiff, (defences not only on the merits but on technical questions like limitation or res judicata) but that where he adjudication of the suit had proceeded on mere questions of procedure (such as where the suit is dismissed for default, etc.) the order is not a decree within the definition. He relied upon several cases decided by the other High Courts for the establishment of this proposition. But as I said before this High Court has held that where the suit is finally determined by the order it is a decree, unless it is excepted specially or unless an appeal is provided for by the Coda itself from such an order as an appeal from an order. In fact, the new Code when it says that the definition of a decree 'shall not include any Order of dismissal for default', clearly implies that but for the exception so expressly enacted an order of dismissal for default would be a decree as it determines the rights of the parties with regard to the matters in controversy in the suit. The controversy as to preliminary and final decrees in the Bombay High Court which was set at rest finally by Chanmalswami v. Gangadharappa 26 Ind. Cas. 885, which was relied on by Mr. Jayarama Aiyar, has not ranch relevancy on this question of the definition of a decree. 1, therefore, hold that Ayling, J., was right in dismissing the revision petition before him. We were asked to interfere finally under Section 5 of the Charter Act, but the power under that section can only be exercised in extraordinary cases and subject to the enactments of the Indian Legislature. I, therefore, dismiss the Letters Patent Appeal with costs.
7. I agree. The question raised by this appeal is whether the District Munsif's order dismissing the suit on the ground that it had abated under Order XXII, rule 4 (3), of the Code of Civil Procedure, by reason of the application which had been made under Sub-rule (1) of Order XXII, rule 4, of the Code to make the legal representative of the deceased defendant a party not having been re-presented within the time fixed by law, is a decree and appealable as such.
8. In Subbayya v. Swaminadayyar 5 M.L.J. 63 following Bhikaji Ramchandra v. Pursetham 10 B.d 220, it was held that an appeal lay against an order rejecting an application under section. 366 of the Code of 1882 to bring on record a person claiming to be the legal representative of a deceased plaintiff and dismissing the suit on the ground that it had abated, and also against the dismissal of the suit. In Bhikaji Ramchandra v. Purshotam 10 B.d 220 Sargent, C.J., and Bird wood, J., held that an order under Section 366 of the Code of Civil Procedure that a suit does abate, was virtually a decree within the meaning of Section 2 of Act XIV of 1882 as it disposed of the plaintiff's claim as effectually as if the suit had been dismissed, and appealable. In a recent case, Subramania Iyer v. Venkataramier 31 Ind. Cas. 4, my Jearned brother and Napier, J., ruled that an order declaring that a suit had abated owing to the cause of action not surviving was a decree as it determined that the right of the plaintiff ceased to exist on his death and, therefore, came within the definition of decree in Section 2 (2) of the Code of Civil Procedure.
9. I respectfully follow these decisions It is true the words 'the suit shall abate' in Sub-rule (2) of Order XXII, Rule 3, of the Code of Civil Procedure have been substituted for the words the Court may make an order that the suit shall abate' which occurred in Section 560 of Act XIV of 1882.
10. The latter words gave rise to a conflict of opinion as to whether an order that a suit shall abate was appealable, the Madras and Bombay High Courts holding that such an order was a decree, and, therefore, appealable, while the Allahabad High Court took a different view. It is probable, I think, that the alteration in the wording was made in order to give effect to the Madras and Bombay rulings and bring the language of the two rulings into conformity. Under the present rule it is not necessary to make an order that the suit shall abate. The suit abates ipso facto if no application is made under Sub-rule 3, Rule 4, of Order XXII of the Code of Civil Procedure within the time fixed by law, and must be dismissed.
11. As pointed out by my learned 'brother although Rules 3 and 4 of Order XXII of the Code of Civil Procedure do not expressly state that the abatement of a suit has the same effect as the dismissal of a suit, this appears to have been the intention of the Legislature. Upon a suit abating under Rule 3 or rule 4 of Order XXII of the Code of Civil Procedure, a decree dismissing the suit must follow.