SUKHRAM ATMARAM Vs. SAMBHAJI MULUJI

JUDGEMENT

(1.) The appellant herein is the heir of the original creditor who had filed an application under the Saurashtra Agricultural Debtors Relief Act before the Board constituted under that Act. The application was originally filed by creditors. One Dayaram Kalubhai and others had the Act and that appeal was disposed of by the learned Assistant Judge Surendranagar on October 31 1961 Dayaram as stated above was one of the appellants in the said appeal. It subsequently came to light that Dayaram Kalubhai had expired on May 19 1961 but the fact of his death had not been brought to the notice of the learned Assistant Judge Surendranagar; and thus one of the appellants was dead at the time when the appeal was decided. No application for bringing the heirs on record had been made in time and after the decision of the appeal a Civil Revision Application was preferred by Sukhram Atmaram claiming to be the nephew and legal representative of the deceassed Dayaram along with the other persons who were co-appellants with Dayaram before the learned Assistant Judge. Sukhram Atmaram applied to the learned District Judge Surendranagar for setting aside the abatement of the appeal pointing out in his application that when the facts regarding the date of the death of Dayaram Kalubhai and the date on which the learned Assistant Judge delivered his judgment had been brought to the notice of the High Court the advocate appearing on behalf of Sukhram requested the High Court to give him time to apply to the District Court Surendranagar for setting aside the abatement of the appeal so far as Dayaram Kalubhai was concerned and it was under these circumstances that the application filed to the trial Court for setting aside the abatement and for condoning the delay in making the application which was preferred before the learned District Judge on November 12 1962 The learned District Judge dismissed the application for condoning the delay and also the application for setting aside the abatement and the present appeal from order has been filed against this decision of the learned District Judge.

(2.) When the appeal reached hearing before me Mr. S. K. Jhaveri on behalf of the appellant was asked as to whether the order refusing to set aside the abatement of the appeal fell under Order 43 Rule 1 clause (k). Clause (k) of that rule provides that an appeal shall lie from an order under Order 22 Rule 9 refusing to set aside an abatement or dismissal of a suit. It is true that under Order 22 Rule 11 provisions of Order 22 are to be applied to appeals and in such application the word plaintiff is to be held to include appellant the word defendant a respondent and the word suit an appeal. But the question still remains for consideration whether an order refusing to set aside abatement of an appeal falls within the four corners of Order 43 Rules 1(k).

(3.) There is a conflict of judicial opinion on the question whether an appeal lies under this clause against an order refusing to set aside abatement of an appeal. The Calcutta High Court has held in Akkas Miya v. Abdul Aziz A.I.R. 1929 Cal. 532(2) that there is no appeal against an order under 0. 22 R. 9 refusing to set aside an abatement of an appeal and the reason for this decision is that the word suit occurring in Order 43 Rule 1(k) does not include an appeal. The Calcutta High Court was of the opinion that there is no provision under the Code for an appeal against an order refusing to set aside the abatement of an appeal in the exercise of its appellate jurisdiction. The learned Judges of the Calcutta High Court pointed out that under sec. 105(1) no appeal is allowed against an order such as this made by the Court in its appellate jurisdiction. Under sec. 105(1) it has been provided:-