1980 Supreme(MP) 179

High Court Of Madhya Pradesh
M. L. Malik, C. P. Sen and S. S. Sharma, JJ.
MITTHULAL - Appellant
Versus
BADRI PRASAD - Respondents
Civil Revn. 504 Of 1976
Decided On : 08/12/1980

An order passed under Order 22, Rule 5 of the Code is not a decree and so no appeal would lie against such an order. The abatement of a suit or an appeal, being the automatic consequence of the failure of the legal representatives being brought on record within the period of limitation and no formal order being necessary, an abatement on that count will not amount to a decree, there being no adjudication of the rights of the parties. The abatement of a suit or an appeal on the ground of right to sue not surviving has been taken as amounting to a decree.

Headnote:

CIVIL PROCEDURE CODE - ORDER 22, RULES 3 AND 5 - ABATEMENT OF SUIT - APPEAL - REVISION - DECREE - LEGAL REPRESENTATIVES - SUBSTITUTION - ADJUDICATION OF RIGHTS - NECESSARY PARTIES - WILL - PROBATE - LETTERS OF ADMINISTRATION.

Fact of the Case:

The deceased plaintiff Parmabai filed a suit against the non-applicants-defendants for declaration of her title and for perpetual injunction restraining them from interfering with her possession of the property. Parmabai died on 24-10-1973. On 27-11-1973 the applicants filed an application under Order 22, Rule 3 of the Code of Civil Procedure for being substituted as legal representatives of the deceased plaintiff on the basis of a will executed in their favour by Parmabai. Though the application was opposed by the defendants, it was allowed tentatively on 28-6-1975 and the applicants were permitted to be substituted as plaintiffs in the case. However, on 28-11976 one Gendabai, claiming herself to be the daughter and sole representative of the deceased plaintiff, filed another application under Order 22, Rule 3 for being substituted in place of Parmabai. She also challenged the status of the applicants as legal representatives of the deceased plaintiff. The trial Court rejected this application as being barred by limitation and also on the ground that it is not tenable because of the triangular contest i. e. there would be two sets of plaintiffs making rival claims. Curiously enough, the trial Court also rejected the application for substitution made by the applicants which was tentatively allowed on 28-6-75 without going into the questions as to whether such a Will was made and whether the applicants are entitled to be substituted as legal representatives. The grounds for rejection are (i) that it is being 2 in one suit because apart from the claim made by the original plaintiff the Court will have to adjudicate the question regarding validity of the Will and it can be treated to be an application for probate or letters of administration. As the propounder of the Will has to disclose names of the nearest heirs of the testator and the applicants having not disclosed the names of Gendabai, daughter, and another son of the deceased plaintiff through her first husband, their application has to be rejected for non-inclusion of the necessary parties and (ii) the suit has abated under Order 22, Rule 3 (2) of the Code as the 2 legal representatives i. e. daughter and the son of the deceased plaintiff Parmabai ere not brought on record within the period of limitation. The suit having abated, it shall be consigned to the record. Against this order, revision has been preferred.

Finding of the Court:

The trial Court held that the suit has abated amounts to a decree. The operative part of the order that the suit has abated amounts to a decree. The second part of the order regarding abatement is consequent to the first order whereby the trial Court has rejected the application for substitution. The question is when one order is the foundation for another order which necessarily follows the former, and no appeal lies from the former part of the order, although an appeal lies from the latter part, whether revision will lie from the former part of the order. The Full Bench answered the questions as follows: (1) Where one part of the order is not appealable, while the other part of the same is appealable as a decree, but the same is followed as a necessary consequence of the former part of the order, no revision would lie from the former part. (2) Where it is held that by reason of some of the legal representatives of the deceased having not been brought on record, the suit cannot proceed and stands abated, no revision would lie from such an order, if in the latter part of the same order the suit is dismissed or is consigned to the record.

Issues: 1. Whether a revision lies from the former part of the order when one part of the order is not appealable, while the other part of the same is appealable as a decree, but the same is followed as a necessary consequence of the former part of the order? 2. Whether a revision lies from an order where it is held that by reason of some of the legal representatives of the deceased having not been brought on record, the suit cannot proceed and stands abated, if in the latter part of the same order the suit is dismissed or is consigned to the record?

Ratio Decidendi: Only those orders of abatement which follow the finding of the Court that the right to sue does not survive on the death of the sole plaintiff or one of the plaintiffs to the surviving plaintiffs, the orders are decrees and the remedy is to file appeal. Even an application under Order 22, Rule 9 for setting aside abatement does not lie because this Rule applies only to cases where a person had never before applied to be the legal representative within the prescribed time, and not to a person who has applied within the time but whose application has been rejected. This Rule has also no application where the Court holds that the suit has abated owing to the right to sue not surviving on the death of the sole plaintiff or one of the plaintiffs to the surviving plaintiffs, for in such a case there is a right of appeal.

Final Decision: The questions are answered accordingly.