The Court's powers in a revision matter are restricted to the question of jurisdiction, and the merits of a decision cannot be considered in such a proceeding.

Mudholkar, J—This order will also govern the decision of Miscellaneous (First) Appeals Nos. 132. and 133 of 1948. Each of these three appeals has been preferred by Babulal against different Respondents from an order passed by the lower appellate Court in three appeals tiled by one Kaluram, now deceased, rejecting the application of the Appellant for substitution of his name in. place of Kaluram as his legal representative.

2. A preliminary objection is taken before me by Shri Sita Charan Dube who appears for the Respondent to the effect that the appeals are incompetent because there is no provision in law whereunder an order refusing to bring on record a person as legal representative of a deceased party can be appealed from.

3. The objection is a good one. The order in question is not one which falls under Order 43 of the Code of Civil Procedure and is not made appealable thereunder; nor does this order amount to a decree.

4. The learned Counsel for the Appellant says that the consequence of this order is abatement of the appeal and therefore the order must be deemed to be an order of abatement and so appeasable a decree. In support of his contention that an order of abatement is appealable as a decide he refers to a decision in-Purushottamdas v. Devkaran Kesheoji,1939 AIR(Nag) 39. whether an order of abatement is appealable as a decree or not is to my mind not relevant to the present case because the present appeals are not against an order of abatement but against a different kind of order altogether. It may be that as a consequence of that order abatement has taken place but that is entirely a different matter.

Moreover, even so far as the order of abatement is concerned, it could only be the person who is a party to a suit or appeal who can appeal and not one whose right to continue a suit or appeal has been held to be not established. In this view I hold that the appeals are not tenable. I would, therefore treat these three appeals as revision applications. Treating them thus the learned Counsel for the Appellant is faced with a great difficulty. The powers of this Court in a revision matter are restricted to the question of jurisdiction and so the merits of a decision cannot be considered by it in such a proceeding.

5. According to Shri Badkas, the Court below was bound to bring on record the Appellant as the legal representative of Kaluram because there was no other contestant. In support of this he relies on Order 22 Rule 5. That provision reads thus: Where a question arises as to whether any person is or is not the legal representative of a deceased Plaintiff or a deceased Defendant, such question shall be determined by the Court. It is clear from the language of the provision that in every case, whether there is one Appellant or there are several, the Court is charged with the duty of making an enquiry and determining whether some or any of the persons applying to be brought on record are or is entitled to be brought on record.

6. Shri Badkas then says that the Court below has refused to take into consideration some evidence which was adduced by the Appellant and has thus committed an error in the exercise of its jurisdiction. What the Court below has done is that it has refused to treat as relevant the evidence of certain witnesses on the ground that it is hearsay. It was open to the Court to decide whether the particular evidence adduced before it was admissible or not. Even though its decision on the point may be wrong that is not a question of jurisdiction and therefore its finding is not open to challenge in revision.

7. In this view I dismiss each of the appeals with costs. Counsel's fee Rs. 25/- in each case.

Final Result : Dismissed