M.P.VARMA, J.

1. This appeal has been referred to a Division Bench by Hon ble Mr. Justice S. Ali Ahmad, who is now a member of the present Division Bench hearing the appeal. The plaintiffs have filed this Second Appeal against the judgements of the courts below.

2. On perusal of the original order, dated 31-1-1969 passed by the Munsif, it appears that the same was passed on a petition framed and preferred under O.22, R.9(2) of the Civil P.C. (hereinafter referred to as the Code) for setting aside the abatement of the main suit. The said suit was for a declaration of title and recovery of possession of some land on the ground that the plaintiffs were dispossessed by the defendants and that the defendants were all members of one joint Hindu family.

3. The trial court took a view that the plaintiffs have failed to establish sufficient cause and has also held that in view the plaintiffs case the suit had abated as a whole and not only against the deceased defendants. An appeal in the court below was preferred as against the order, dated 31-1-1969 and also against the decree dated 19-2-1969, which followed as a consequence to the dismissal of the suit ordered by the original court while disposing of the petition for setting aside the abatement. In effect, therefore, the appeal before the court below was a composite one, i.e. both against the order refusing to set aside the abatement as also dismissal of the suit.

4. The question which arises for our consideration is whether a second appeal could be preferred against the appellate order, which was passed in an appeal against the trial courts order refusing to set aside the abatement. Undoubtedly such an appeal could be preferred under O.43, R.1 clause (k) of the Code. The matter is very elementary and it needs hardly to be reiterated that no second appeal lies from an order as provided in S.104(2) of the Code, which says that "no appeal shall lie from any order passed in an appeal under this section." The dismissal of a petition under O.22, Rule 9(2) of the Code, which enables a plaintiff to apply to the court to set aside the abatement or dismissal of suit under O.22 of the Code, is appealable as an appeal from an older under O.43 of the Code and the order of the first court clearly specifies that "the petition dated 2-8-1968 for setting aside the abatement of the suit be dismissed." In no circumstance, therefore, the appeal before the court below can be treated as against dismissal of the suit itself. It seems that after the order, dated 31-1-1969, passed by the first court, a formal consequential decree was prepared by the said court on 19-2-1969 which was also made a subject of attack in the appeal before the appellate court below and I feel that under that misconception, the appeal which should have been described and filed as a Miscellaneous appeal was preferred as a Title appeal. I further find that even the lower appellate courts order concludes by saying that "it further follows that the learned Munsif was justified in holding that the suit abated as a whole and rightly refused to set aside the abatement thereof." Such a finding clearly establishes that the appeal was being heard against the dismissal of the petition for setting aside abatement and definitely not against the dismissal of the suit itself. In my opinion, if the plaintiffs had any grievance against the dismissal of the suit followed by a decree, it was open for the plaintiffs to prefer an independent appeal against the said decree, if the same was permissible in law. But that having been not done, the appeal before the court below cannot but be treated as an appeal under Order 43, Rule 1(k) of the Code. In that view, the present Second Appeal becomes incompetent as barred by Sec.104(2) of the Code. The first appeal filed in the court below must be held to have been preferred under Order 43, Rule 1(k) of the Code which is directly covered by Sec.104(1)(i) of the Code.

5. However, if the appeal before th