ALPHONSO NAZARATH Vs. KAVIEER DIAS

JUDGEMENT

(1.) The principal question that arises for determination in this appeal is Whether an appeal will lie from an order declining to set aside the statement of an appeal. The appellant herein was also the appellant in R.A. No.104 of 1965 on the file Of the Civil Judge at Udipi. During the pendency of that appeal, respondent 1 therein died on 7-2-1967. On 5-6-1967 the appellant made an application under Or.22, R.4 read with R.11 CPC., for bringing on record the legal representatives of deceased respondent 1. Along with that application he made an application under Or.22, R.9 CPC. praying for setting aside the abatement of the appeal and another application under S.5 of the Limitation Act purporting to be for condonation of delay in presenting the application for setting aside such abatement.

(2.) The learned Civil Judge dismissed the application under S.5 of the Limitation Act, holding that there were no sufficient grounds for condonation of delay. He further held that consequently the application for setting aside the abatement of the appeal and the application to bring on record legal representatives of deceased respondent 1, did not survive and that the appeal had already abated under Or.22, R.3 CPC. Against the orders of the learned Civil Judge on these three applications, the appellant has preferred this appeal purporting to be under Cl. (k) of R.1 of Or.43 CPC. Mr. K. R. D. Karanth, learned Counsel for respondents 2 & 4 to 8, raised a preliminary objection that this appeal is not maintainable under Or.43, R.1(k) CPC. Elucidation his contention, Mr. Karanth submitted that an appeal lies under Or.43, R.1(k) CPC., only from an order refusing to set aside the abatement of a suit and not from an order declining to set aside abatement of an appeal.

(3.) On the other hand, Mr. B. P. Holla, learned Counsel for the appellant, contended that an appeal is maintainable under Or.43, R.1(k) CPC. from an order refusing to set aside the abatement of an appeal also. In order to appreciate these rival contentions, it is useful to set out the relevant provisions of the CPC. The material part of sub-sec. (1) of S.104 reads: