The main legal point established in the judgment is that an appeal would not lie from an order rejecting an application to set aside abatement of an appeal under the relevant provisions.

1. A.S.No.17/78 is an appeal from a decree in a suit. The respondent in the appeal passed away on 12-12-1981 and as his legal representatives were not impleaded in time the appeal abated. The appellant thereafter filed C.M.P.Nos. 6533/82 and 6534/82 for impleading legal representatives and for setting aside abatement, but these were dismissed by a learned single Judge. C.M.A. 185/84 is an appeal against that dismissal, and the question is whether an appeal would lie to a Bench of two judges of this Court, from an order of a single judge refusing to set aside the abatement of a First Appeal. According to counsel, such an appeal would lie either under 0.43 Rule 1(k) of the Code of Civil Procedure read with S.104 thereof, or under S.5(ii) of the Kerala High Court, Act, 1958.

2. S.104(1) of the Code conceives of appeals against certain classes of orders, and one such order, under 0.43 Rule 1(k) is "an order under R.9 of 0.22 refusing to set aside the abatement or dismissal of a suit".

Rule 9 of 0.22 provides for an application to set aside the abatement or dismissal of a suit and the combined effect of these provisions is that an appeal would lie from an order refusing to set aside the abatement of a suit. Since R.11 of 0.22 further provides that the word 'suit' in that order shall be held to include an appeal, an application to set aside abatement of an appeal is also possible. But these are insufficient to hold that an appeal would lie from an order rejecting such an application. A right of appeal is a creature of statute; and so long as the fiction in 0.22 R.11 does not extend to 0.43, it is not easy to suggest that the Code creates a right of appeal from an order rejecting an application to set aside abatement of an appeal. That is the view taken by the High Courts of Punjab, Calcutta and Gujarat(1), and unless there are compelling reasons, we would not be persuaded to adopt the contrary view expressed by some other courts. Sub-section (2) of S.104 and sub-section (1) of S.105 also indicate that the former view is preferable.

3. As for the contention based on S.5 (ii) of the Kerala High Court Act it will be useful to extract the whole of the Section:

5. Appeal from judgment or order of Single Judge.- An appeal shall lie to a Bench of two judges from

(i) a judgment or order of a Single Judge in the exercise of original jurisdiction; or

(ii) a judgment of a Single Judge in the exercise of appellate jurisidic-tion in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court; or

(iii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate court, if the judge who passed such judgment certifies that the case is a fit one for appeal."

(1) See Sat Pal v. Budha Lalji (AIR 1968 Punjab 70).

Ignoring the impact of S.100A of the Code (introduced by the amending Act of 1976) on S.5 (iii) above, and keeping in mind that the contention regarding maintainability is founded on the word 'judgment' in S.5 (ii), it is necessary to examine whether that word could be construed to include an 'order' of the kind we are here concerned with. Even a cursory examination of clauses (i) and (ii) brings out the distinction that while Sec.5(i) contemplates an appeal both from a judgment and an order of a single judge in exercise of original jurisdiction, S.5 (ii) provides only for an appeal from a judgment (and not an order) of a single judge in exercise of appellate jurisdiction. Where the legislature has taken care to speak of judgments and orders separately in clause (i), and where it confines clause (ii) to judgments alone, it will not be reasonable to infer that the word 'judgment' in the latter would include an order also.

4. Counsel for the appellant seeks to get over these difficulties by leaning heavily on the decision of the Supreme Court in Bhabulal Khimji v. Jayaben (AIR 1981 SC 1786) where the