Back
2020 Supreme(Gau) 34
IN THE HIGH COURT OF GAUHATI
MIR ALFAZ ALI, J.
Babu Ram Goala and Ors. – Appellant
Versus
Samir Kanti Bhowal and Ors. – Respondents
RSA 41 of 2006
Decided On : 24-01-2020
Advocate Appeared:
For the Appellant :S. Senapati, Advocate
For the Respondents:P. Borah, Advocate
Headnote:
Code of Civil Procedure – Sections 100, 144, 2(2), 104 – Order 22 Rule 11 – Order 22 Rule 9 – Order 43 Rule 1(k) –Issue on Abatement – Learned Sr. Counsel submitted that the appeal could not have been dismissed in to, inasmuch as, for non-substitution of the legal heirs of the appellant No. 8, at best, the appeal qua the deceased appellant No. 8 could be abated –However, learned Civil Judge wrongly passed the order rejecting the application for setting aside abatement and substitution of legal heir of appellant No. 8 and dismissed the entire appeal as having been abated –Held, on factual matrix of the present case, ratio laid down in all the above authorities relied by the learned counsel for the appellant are distinguishable, because question of finality of a decision and whether a decision/order is amenable to appeal or second appeal is not the same thing –It must be borne in mind that right to appeal or 100 CPC being a statutory right, no appeal would lie save as provided by the statute –In view of the above position, this court constrained to hold that this second appeal is not maintainable, for the reasons that the impugned order is not a decree of the first appellate court and secondly, such an order is amenable to appeal as an appeal from an order –Having said so, Court feel it unnecessary to discuss the substantial question of law raised in this second appeal, as the same would be a mere academic exercise –Appeal disposed of
JUDGMENT :
Mir Alfaz Ali, J.
1. This second appeal was admitted to be heard on the following substantial question of law.
A. Whether the learned appellate court was right in dismissing the entire appeal as having been abated for not impleading the legal heirs of appellant No. 8 therein, Mewalal Goala on the ground that it appeared to the learned appellate court that the decree passed in favour of the plaintiffs was joint and indivisible?
B. Whether the appellate court below erred in treating the decree of the trial court against the appellant as joint and indivisible when the trial court itself dismissed the suit for 8-K, 14-Ch. out of 18-K, 14-Ch. against some other defendants?
2. The facts leading to the present second appeal may be stated thus:
3. The respondents herein and/or their predecessor-in-interest filed Title Suit No. 338/1981 for declaration of right, title, interest and recovery of possession against the appellant herein. Learned Munsiff decreed the suit in favour of the plaintiffs. The defendants (appellants herein) preferred the first appeal before the learned Civil Judge, which was registered as T.A. No. 1/1987. During the pendency of the appeal, one of the appellant (appellant No. 8), namely, Mewalal Goala died. Later on, an application was filed by the legal representative of Mewalal Gowala, the appellant No. 8, for impleadment/substitution and also for setting aside abatement. However, learned Civil Judge, by the impugned order dated 07.12.2005 rejected the petition for setting aside abatement and substitution of the legal heirs of the appellant No. 8, Mewalal Gowala and consequently dismissed the entire appeal as having been abated. Aggrieved by the said order dated 07.12.2005, passed by the learned Civil Judge, Silchar in T.A. No. 1/1987, the appellant has preferred the instant second appeal.
4. Learned Sr. Counsel, Mr. G.N. Sahewalla, for the appellant and learned counsel Mr. A. Sattar for the respondents were heard.
5. Learned Sr. Counsel Mr. Sahewalla submitted that the appeal could not have been dismissed in toto, inasmuch as, for non-substitution of the legal heirs of the appellant No. 8, at best, the appeal qua the deceased appellant No. 8 could be abated. However, learned Civil Judge wrongly passed the order rejecting the application for setting aside abatement and substitution of legal heir of appellant No. 8 and dismissed the entire appeal as having been abated.
6. Per contra, learned counsel for the respondent Mr. A. Sattar supporting the impugned order submitted that the decree passed by the learned trial court was a joint and indivisible decree and therefore, the entire appeal stood abated for death of the appellant No. 8 and for not substituting the legal heirs of the appellant No. 8 within time. Mr. Sattar also raised objection regarding maintainability of the appeal and placing reliance on a decision of the Apex Court in Madan Nayak (dead) by LRS Vs. Hansubala Devi & Ors. reported in (1983) 3 SCC 15 contended that the impugned order is appealable under Order 43 Rule 1(K) CPC and therefore second appeal is not maintainable.
7. Refuting the above submission, Mr. Sahewalla, learned counsel for the appellant contended that though, dismissal as a consequence of abatement may not amount to adjudication of a decree on merit of the appeal, it brings finality to the decision rendered by the trial court by way of dismissal of the appeal and therefore, the appellant had no option, but to file a second appeal under Section 100 of the CPC. Mr. Sahewalla further contended in the alternative, that in the event of the second appeal is not found to be maintainable, the second appeal be converted to an appeal against order. To buttress his submission on the maintainability of the second appeal, Mr. Sahewalla placed reliance on the following authorities.
(i) (2005) 1 SCC 436 (Shyam Sundar Sarma Vs. Pannalal Jaiswal & Ors.)
(ii) (2007) 11 SCC 285 (Bhag Mall @ Ram Bux & Ors. Vs. Munshi (dead) by LRS & Ors.)
(iii) AIR 1956 S
