Judgment

DESAI, J.:- One Jogendra Naik and two others filed a suit bearing No. 81/11 of 1952/54 against one Madan Naik and 5 others for a declaration of title and confirmation of exclusive possession in respect of a tank and its embankment in village Dahiari in the Court of Additional Munsif, Giridih. The suit ended in a decree in favour of the plaintiffs on June 25, 1954. The defendants in the suit Madan Naik and others preferred First Appeal in the Court of Subordinate Judge, Hazaribagh. The appeal came up for hearing before First Additional Subordinate Judge, Hazaribagh who by his judgment and order dated September 24, 1955 dismissed the appeal and confirmed the decree passed by the trial Court The original defendants carried the matter in Second Appeal No. 1872 of 1955 to the High Court of judicature at Patna. During the pendency of the appeal, it transpired that Jogendra Naik - respondent No. 1 in the appeal had died on July 10, 1955 when the matter was pending in the First Appellate Court. An application was made on May 14, 1956 for setting aside, the abatement and bringing the heirs And legal representatives of deceased Jogendra Naik on record. The High Court by its judgment and order dated July 26, 1957 set aside the decree passed by the First Appellate Court and remitted the appeal to the first Appellate Court with a direction that the application for setting aside the abatement and substitution and the counter-affidavit opposing the same be considered by the First Appellate Court and dispose of the same in accordance with law. When after the remand the appeal came up for hearing before the First Additional Sub-Judge, Hazaribagh. The learned judge took up the application for setting the abatement and for substitution. The learned Judge was of the opinion that no case was made out for condoning the delay in making the application for substitution and accordingly declined to condone the delay. Consequently, the learned Judge rejected the application for substitution as time-barred. The learned Judge further held that in view of the failure of the appellants to bring heirs and legal representatives of deceased Jogendra Naik. on record in time the first appeal abated as a whole. While making this order, the learned Judge articulated the final order as under which gave precedence to procedural clap-trap without any adjudication of the dispute on merits. The order made by the learned Judge reads as under :

"11. I, therefore, hold that the entire appeal has abated. It is, therefore, not necessary to hear the appeal again on merits.

12. It is, therefore, ordered that the appeal be dismissed on contest. I do not award any cost to any party considering the circumstances of the case."

Pursuant to this final order, a decree was drawn-up incorporating therein the aforementioned final order. Original defendants filed Second Appeal No. 566 of 1958 on May 5, 1958 in the High Court. When the Second Appeal came up for admission, it probably dawned upon the appellants that as the first appeal was disposed of as having abated and an order refusing to set aside the abatement is made under O. 22, R. 9 Civil P. C., an appeal from that order would lie under O. 43, R. 1 (k) too the High Court and accordingly an appeal from the Order was filed numbered as M.A.E. No. 55 of 1959. As this appeal from order was filed beyond the period of limitation, an application under Sec. 5 of the Limitation Act was made praying for condonation of delay in filing the appeal. Another application was made to hear the appeal from order along with the Second Appeal. Pursuant to this order both, the appeal from order and the second appeal came up together, for admission. The learned single Judge admitted the appeal from order and dismissed the Second Appeal making the confusion worse confounded.

2. The learned single Judge who heard the appeal from order was of the opinion that the appellants in the appellate court had successfully made out sufficient cause for condoning