An order under Order XXII, Rule 5, is not a decree and is not appealable as such.

1. This is an appeal by Thakur Bhagwansingh under Order XLIII, Rule 1, Code of Civil Procedure, against the order of the lower Court dated the 20th July 1951.

2. Thakur Kalusingh instituted a suit for a declaration that the relinquishment deed dated the 5th January 1939 executed by him in favour of his son Vishwanathsingh (Defendant) was void and inoperative. During the pendency of this suit Kalusingh died. He is alleged to have left a will dated the 21st October 1948, bequeathing all his property including the property in suit to his brother Bhagwansingh who is the Appellant here. Bhopalsingh, another son of Kalusingh, and Bhagwansingh both made applications for being brought on record as the legal representatives of the Plaintiff Kalusingh. The lower Court had to decide this contest under Order XXII, Rule 5, Code of Civil Procedure. After an exhaustive enquiry it found that Kalusingh executed the will in favour of Bhagwansingh on the 21st October 1948, that the will was not duly attested, that Bhagwansingh was in a position to dominate the will of Kalusingh and that he used that position to obtain an unfair advantage over him by getting the will executed. For these reasons the will was held to be inoperative. The application of Bhagwansingh was dismissed and that of Bhopalsingh was allowed and his name was brought on record as Plaintiff. Bhagwansingh appeals.

3. The learned Counsel for Respondent 1 has raised a preliminary objection that no appeal lies against this order under Order XXII, Rule 5, Code of Civil Procedure, refusing to bring on record the Appellant as the legal representative of the deceased. This contention must prevail. Order XLIII, Rule 1 does not provide for an appeal against an order passed under this rule.

4. While conceding that Order XLIII does not provide for an appeal against this order as an order, the learned Counsel for the Appellant submits that the adjudication has conclusively determined the rights of the Appellant and the two Respondents with regard to matters in controversy in the suit and amounts to a decree. Reliance was placed on - Ayya Mudali Velan v. Veerayee, 1920 39 MadLJ 218. Though this ruling was overruled by a Full Bench of the Madras High Court in - Venkatakrishna Reddi v. Krishna Reddi, 1926 AIR(Mad) 586, the learned Counsel submits that it is the correct view and should be adopted.

5. In Gangadhara Rama Rao v. Raja of Pittapur , it was held that an order striking out the Defendant from the record on the ground that there was no cause of action against him was decree and was appealable. That order was passed on an application under Order I, Rule 10, Code of Civil Procedure, to strike off the name of Defendant 1 and to amend the plaint. The principle of that decision was followed in - Ayya Mudali Velan v. Veerayee, 1920 39 MadLJ 218. There the Plaintiff sued Defendants 1 and 2, his illegitimate daughter and son respectively, for declaration that a decree obtained by Defendant 1 in respect of the property in suit was not binding on him. The Plaintiff died during the pendency of the suit. Defendant 2's application for being allowed to continue the suit, on transposition as Plaintiff was dismissed. The learned Judges held that this order finally deprived the Defendant of all his rights in the suit and had the effect of putting an end to the litigation altogether. The order was therefore a decree within the meaning of Section 2(2), Code of Civil Procedure, and appealable as such.

In - Venkatakrishna Reddi v. Krishna Reddi, 1926 AIR(Mad) 586 the alleged legal representative claimed the properties in suit as a legatee of the Plaintiff. The trial Court having found that the will was not genuine, dismissed the application. It was held that even where there was no rival claimant such an order did not amount to a decree. The last two and other decisions were considered by a Full Bench of the Lahore High Court in - Ram Charan Das v. Hira Nand,1946 ILR(Lah) 427 which held that an order unde