THANGAMMAL Vs. AVANASHIAPPAN

JUDGEMENT

(1.) THIS Letters Patent Appeal is preferred against the order dated 5. 2. 1992 passed by a learned single Judge in C. M. P. Nos. 256 to 258 of 1993 filed in Second Appeal No. 1623 of 1984. Those C. M. Ps. have been filed for bringing the legal representatives of the deceased third appellant on record, on condoning the delay and setting aside the abatement. The learned single judge, having not been satisfied with the explanation offered for the delay, has rejected the petition filed for condoning the delay, and has consequently rejected the other two petitions filed for setting aside the abatement and bringing the legal representatives of the deceased third appellant on record.

(2.) THE office has raised an objection that as no Letters patent Appeal lies against the judgment and decree in the second appeal, as such the letters patent appeal preferred against the order refusing to set aside the abatement is not maintainable, in view of the provisions contained in scc. 100-A read with Sec. 106 of the Code of Civil Procedure. Learned counsel appearing for the appellant submits that as the order refusing to set aside abatement is passed in exercise of the original jurisdiction, because the proceeding under 0. 22 of the Code of Civil Procedure is an original proceeding, a Letters Patent Appeal lies under Clause 15 of the Letters Patent. Learned counsel has also placed reliance on a decision of the Supreme Court in Shah babulal Khimji v. Jayaben, A. I. R. 1981 S. C. 1786: (1981)4 S. C. C. 8.