( 1 ) HEARD Shr. Shiv Sagar Singh, the learned counsel for the applicant and sr. N. C. Rajvanshi, the learned Senior counsel for the respondents.

( 2 ) THE suit was dismissed by the trial court. The plaintiff filed an appeal and during its pendency, the plaintiff died. The applicant filed an application to substitute himself as the legal heir of the deceased on the ground that he is the adopted son of the plaintiff by virtue of a registered adoption deed dated 31 -1 -1984. The defendants filed their objections. The lower Appellant Court, after considering the matter, rejected the application on the ground that the adoption deed had not been validly executed and simultaneously dismissed the appeal as abated. Aggrieved, the petitioner filed the present application under Article 227 of the constitution of India.

( 3 ) THE learned counsel for the respondents Sr. N. C. Rajvanshi raised preliminary objection that the application under article 227 of the Constitution of India was not maintainable, inasmuch as the impugned order was a decree within the meaning of Section 2 (2) of the C. P. C. , and therefore, only an appeal would lie against the said order under Section 100 of the C. P. C. The learned counsel for the respondents placed reliance upon the provision of Section 2 (2) of the C. P. C. and submitted that the lower Appellate Court had determined the rights of the applicant/petitioner while holding that the adoption deed had not been validly executed. The order of the lower Appellate Court was passed in consonance with the provision of Order 22, Rule 5 of the c. P. C. which finally determined the question of the legal representative of the deceased plaintiff/appellant. Consequently, such determination conclusively determined the rights of the party with regard to the matter in controversy in the suit.

( 4 ) THE learned counsel for the respondents further submitted that upon the dismissal of the application under Order 22, rule 5 of the C. P. C. , the lower Appellate court also simultaneously dismissed the appeal as abated. Consequently, against the said order, only an appeal could be filed, inasmuch as the said order amounted to a decree under Section 2 (2) of the C. P. C.

( 5 ) IN support of his submission, the learned counsel placed reliance upon a decision in the case of Brij Jivan Lal and another v. Shiam Lal and others, AIR 1950 allahabad 57 on the proposition that a Court deciding that the suit abated in its entirety amounted to decree and was appealable under Section 96 of the C. P. C. The learned counsel for the respondents further placed reliance upon the decision in the case of vidya Wati v. Chambeli, AIR 1935 Lahore 47 (2) and in the case of Udmi and others v. Hira and others, AIR 1920 Lahore 338 and the case of Dumi Chand v. Arja Nand and others, 1915 ILR (XXXVII) (All) 272.

( 6 ) IN my opinion, the judgment cited by the learned counsel for the respondents are totally distinguishable and are not applicable to the facts and circumstances of the present case.

( 7 ) IN the present case, an application under Order 22 of the C. P. C. has been dismissed on the ground that the adoption deed was not executed in accordance with the hindu Adoptions and Maintenance Act, 1956. The adjudication made by the trial court, in my opinion, does not amount to a decree as contemplated under Section 2 (2) of the C. P. C. nor does it finally determine the question as to who is the legal representative of the deceased under Order 22, rule 5 of the C. P. C. In any case, an enquiry under Order 22, Rule 5 of the C. P. C. is only summary in nature and is not an appealable order. The question whether a person could be permitted to be brought on the record as a legal representative of the deceased is only for the purpose of continuing with the proceedings that had already begun and any adjudication arrived in the course of such enquiry under Order 22, Rule 5 of the C. P. C. is not an adjudication contemplated under Section 2 (2) of the c. P. C.

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