IMPORTANT POINT
Order under O.XXII, r. 3 and 5 is neither a decree appealable under section 96, nor an order appealable under section 104 and Order 43 Rule 1. Remedy lies in filing revision.

Judgment :-

R.V. RAVEENDRAN, J.

1. Leave granted.

2. One Prannath filed a suit against the respondents for declaration, possession and damages on 4.8.1989 in regard to an immovable property. Prannath died on 12.11.1994 during the pendency of the suit. The appellant filed an application under Order 22 Rule 3 of the Code of Civil Procedure (`Code' for short) on 27.1.1995 to be added and substituted as the legal representative of Prannath, claiming that he was the sole legatee under the registered will dated 10.10.1994 executed by Prannath. The said application was contested by the respondents-defendants. They denied the allegation that deceased plaintiff Prannath had executed any will in favour of the appellant. They contended that the appellant was not the legal heir nor legatee of Prannath and therefore not entitled to be added as a party, as the legal representative of the deceased plaintiff. In view of the contest to the application, the appellant examined one Balwant who was an attesting witness to the will. After considering the documentary and oral evidence, the trial court (IV Civil Judge, Class II, Bilaspur) made an order dated 31.8.1996, holding that there was no acceptable evidence to prove the will and therefore the appellant could not be held to be the legal representative of the plaintiff. The trial court held that the application by the appellant under Order 22 Rule 3 of the Code could not be entertained or accepted and consequently in the absence of any legal heir of the plaintiff dismissed the suit.

2A. Feeling aggrieved the appellant filed an appeal in the court of the V Additional District Judge, Bilaspur. The appellate court allowed the appeal by order dated 28.1.1998. It held that the registered will was proved by examining one of the attesting witnesses; that deceased Prannath himself had submitted an application in court in the pending suit on 25.10.1994 referring to the execution of his will dated 10.10.1994 and praying that his evidence may be recorded without delay; and that therefore the appellant was entitled to be impleaded as the legal representative of the deceased plaintiff. The appellate court rejected the contention of the respondents-defendants that the appeal was not maintainable. It held that the order of the trial court dismissing the suit as a consequence of the rejection of the application under Order 22 Rule 3 of the Code would fall within the definition of “decree” under section 2(2) of the Code. The appellate court therefore set aside the order dated 31.8.1996 passed by the trial court, permitted the appellant to be brought on record and continue the suit as legal representative of the plaintiff and remanded the suit to trial court under Order 41 Rule 23 of the Code for deciding the matter on merits.

3. Respondents 1 and 2 filed a miscellaneous appeal before the High Court, under Order 43 Rule 1(u) of the Code against the said appellate judgment. A learned Single Judge of the Chhattisgarh High Court, by the impugned order dated 15.4.2008 allowed the said appeal and set aside the order dated 28.1.1998 passed by the appellate court and restored the order dated 31.8.1996 passed by the trial court. The High Court held that the order dated 31.8.1996 of the trial court did not amount to a decree and therefore the appeal by the appellant before the appellate court was not maintainable. The High Court held that an order can be a “decree” if it conclusively determined the rights of parties, with regard to all or any of the matters in controversy in the suit. The question whether Prannath executed a will in favour of appellant and thus appellant was a legal representative of Prannath was not an issue in controversy in the suit, but arose incidentally for determination in view of the application of appellant for being brought on record as the legal representative of Prannath. An order on such an application did not decide all or any of the matters in controversy in the suit and not a `decree' as