SURENDRA SINGH Vs. MANGLURAM DEWANGAN

JUDGEMENT

(1.) IN this Misc. Appeal, the following questions arise for determination:

(2.) LEARNED Counsel for the parties were heard at length. Order 22 Rule 5, CPC is as under:

(3.) IN determining whether an order of abatement is open to appeal a distinction should be drawn between those cases of abatement where it is due to the failure of the heirs being brought on the record within the period allowed by law or due to the Court deciding that a particular applicant is not the legal representative, and those cases where the abatement is due to the Court deciding that the right to sue does not survive. In the latter class of cases, there is a decree meaning thereby a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The order whereby an application under Order 22 Rule 3 is dismissed on the ground that the applicant was not the legal representative of the deceased sole plaintiff would, therefore, fall in the first category of the cases as mentioned above. The Full Bench of the Madhya Pradesh High Court in Mithulal and Ors. v. Badri Prasad and Ors. 1981 JLJ 21, has held that an order refusing substitution is not appealable. The facts in that case were that no enquiry as contemplated by Order 22 Rule 5 of CPC was conducted by the Trial Court before rejecting the application under Order 22 Rule 3 of CPC for being substituted in place of the original plaintiff on the basis of a Will. In the present case, although a summary enquiry was conducted by the Trial Judge by allowing the parties to lead evidence on the question of execution of Will by late Prannath in favour of the applicant Mangluram, a finding was recorded by the Trial Court that execution of Will in favour of Mangluram by the deceased sole plaintiff Prannath was not proved in accordance with law and on such a finding it was held that Mangluram was not the legal representative of Prannath, and therefore, not entitled to be substituted as plaintiff.