IMPORTANT POINT
The main legal point established in the judgment is that unless there is a decree, there cannot be any second appeal.

JUDGMENT :

MALASRI NANDI, J.

1. Heard Mr. B. Sarkar, learned counsel for the appellants. Also heard Mr. P.K. Roy, learned counsel for the respondents.

2. This appeal under Section 100 of CPC has been preferred by the appellants on being highly aggrieved with the order dated 21.07.2009 passed by the learned Additional District Judge, FTC, Karimganj in Title Appeal No. 2/2008, dismissing the appeal on the ground of abetment.

3. This appeal was admitted on the following substantial question of law:

(i) Whether the findings of the learned trial court in the impugned order dated 21.07.2009 are perversed?

4. The facts leading to the case is that the appellants who are legal heirs of original plaintiff Amir Ali. The said Amir Ali as plaintiff filed a suit before the Assistant District Judge, Karimganj, vide Title Appeal No. 21/1996 praying for declaration of plaintiffs’ land holder right, title, interest and possession along with proforma defendant Nos. 15 and 16 in respect of the suit property and also for recovery of khass possession of the same against the respondents/defendants. After conclusion of trial, the suit was decreed in favour of the plaintiff/appellants.

5. On being aggrieved and dissatisfied with the judgment of the then Civil Judge(Senior Division), Karimganj in Title Suit No. 21/1996, the respondents/defendants preferred an appeal before this Court which was first appellate court at that time. Subsequently, the appeal had been transferred to the court of District Judge, Karimganj due to enhancement of pecuniary jurisdiction.

6. It is further stated that the appellants are virtually day labourers who somehow could engage lawyer with their hard earned money to conduct the appeal before this Court. During pendency of the appeal before this Court, respondent Amir Ali died on 27.12.2007, the appellant No. 1 Pakhi Bibi died on 17.01.2006 and the appellant No. 3 Abdul Hoque died on 22.10.2002. The appellants and respondents informed their respective engaged lawyers of this Court over phone on the death of the aforesaid persons within time for necessary substitution of legal heirs of the deceased.

7. It is pertinent to say here that the Title Suit No. 21/1996 was conducted before the court of learned Civil Judge (Senior Division), Karimganj and the against the judgment and decree of aforesaid Title Suit, one Pakhi Bibi filed an appeal vide R.F.A. No. 60/2000 before this Court. Later on, this Court passed an order dated 26.05.2000 in M.C. No. 151/2000 arising out of R.F.A. No. 60/2000 in connection with stay application for depositing cost of Rs. 6,841.55/- within one month. But the appellant failed to deposit the said amount within one month as per direction given by this Court. Thereafter, due to enhancement of pecuniary jurisdiction of District level Civil Court, the appeal was transmitted to the learned Civil Court, Karimganj and the said record was received on 30.09.2008 and R.F.A. No. 60/2000 was renumbered as Title Appeal No. 2/2008. The Court notice was also duly served upon the appellant and accordingly, the appellants filed vakalatnama on 07.01.2009.

8. In connection with the said appeal, while the above case (R.F.A. No. 60/2000) was pending before the High Court, the sole respondent, Amir Ali expired and regarding the death of said Amir Ali was duly intimated to the appellants’ lawyer at Gauhati High Court within 90 days of his death on 11.03.2008 and Amir Ali expired on 29.12.2007. But the appellants have not made any attempt for the substitution of legal heirs of the deceased i.e. sole respondent Amir Ali within 90 days from the date of his death. Under such circumstance, the said appeal has already been abated as stated by the learned counsel for the original plaintiff.

9. Accordingly, the learned counsel for the appellants submits that there was no leaches or delay on the part of the appellants in informing to substitute the heirs of the aforesaid deceased and delay, if any, was beyond the knowledge and control of the app