( 1 ) THIS appeal preferred under Or. 43, R. 1 (k) CPe arises out of an order made by the Civil Judge, Karwar on I. A. Nos. I to IV in C. A. 571 of 1965 holding that the appeal has abated consequent on the failure of the appellants to bring on record the legal representatives of one of the respondents therein.

( 2 ) THE facts leading up to the appeal are these: ayyad Hanif Shah and his wife Imanbu executed two mortgage deeds in respect of certain property on 28th Feb, 1882 and 25th Jan, 1883. They died before redeeming the mortgages. The dispute arose among the persons claiming to be the legal heirs of the mortgagors as to who should redeem the mortgages. A suit for declaration was instituted in the Munsiff Court, haliyal stating that the plaintiffs together with defendants 5 to 7 are the heirs entitled to redeem the mortgages. The appellants before me resisted the said suit contending, inter alia, that the plaintiffs are not the heirs of the mortgagors. The trial Court decreed the suit declaring that the plaintiffs alone are thq heirs entitled to redeem the mortgages. Aggrieved by the decree, defendants 1 to 4 preferred an appeal in thq Court of the Civil judge, N. Kanara. During the pendency of the appeal, respondents 3 and 6 therein (that is plaintiff-3 and defendant 5) died. The applications to bring their legal representatives were filed by the appellants therein after one year from the date of death of the said respondents. The appellate Court refused to condone the delay on the ground that the cause shown by the appellants was not sufficient. The result was disastrous. The Court dismissed the applications and held that the appeal against the deceased respondents abated. It further held that if the appeal against the remaining respondents was allowed, it would lead to inconsistent and contradictory judgments in respect of the same subject matter in the suit and so the entire appeal has abated.

( 3 ) SOME of the defendants challenging the correctness of the appellate order, have preferred the Miscellaneous Second Appeal to this Court.

( 4 ) THIS Court while registering the appeal, has kept open the question of its maintainability to be decided at the time of final hearing. So, it is now necessary for me to decide that question before proceeding to consider the merits of the appeal.

( 5 ) FOR the respondents, it was urged that the miscellaneous appeal is not maintainable. According to them, a Regular Second Appeal ought to have been preferred under Sec. 100 of the CPC as the lower appellate court has dismissed the entire appeal on the ground that it has abated.

( 6 ) THE question raised turns on the scope of S. 100 CPC which so far as it is relevant provides : "100. (1) Save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court, on any of the following grounds, namey: - it is seen from the above provisions that a Regular Second Appeal lies from every decree passed in appeal by any Court. The question is whether the appellate Court dismissing the appeal on the ground that) the appeal stands abated, or to put it properly that the appeal stands abated, amounts to a "decree passed in the appeal" as provided by S. 100 of CPC. If it was a decree made 'in appeal', the objection raised is tenable and the appellants ought to have preferred a Second Appeal; if it was not, the Miscellaneous Appeal should be held to be maintainable.

( 7 ) IT seems to me that there is considerable difficulty in accepting the preliminary objection. The, meaning of the expression 'passed in appeal' was the subject matter of several decisions of different High Courts. The line of authorities is to the effect that the appeal should be dealt with judicially and thereafter a judgment should be delivered. Mere dismissing the appeal for want of prosecution or on any other technical ground cannot be construed as an order or

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