LEKH RAJ Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THIS is an appeal by one of the defendants purporting to be one under Or. 43 Rule 1(k) of the Code of Civil Procedure. The impugned order was passed on the application moved by the defendant for abatement of the suit for non -impleadment of the heirs of one of the deceased defendant. The order also disposes of some applications moved by the plaintiff for substitution and for setting aside abatement etc. All those applications have been disposed of by a common order.

(2.) IN order to appreciate the controversy it will be proper to have the facts giving background of the controversy. The respondent -bank instituted a suit for the recovery of certain amount loaned to the three original defendants on the basis of equitable mortgage executed by them. The aforesaid suit was filed on 26 -3 -1985. As is usually done in such cases the defendant avoided service and the notice sent by the respondents came back unserved. It is said that one of the defendant Hansraj had died and the notice sent to him by registered post came back with the postal remark dated 29 -9 -1985 that 'Hansraj has expired'. It appears that the court passed an order dated 29th Oct., 1985 directing the plaintiff to take steps within seven days. Thereafter the plaintiff applied for effecting substituted service on the defendants and the same was allowed by the court and that the notice was published in the local Newspaper. This service was proved to be sufficient and ultimately the court proceeded to pass ex parte order on 24 -12 -1985.

(3.) ORDER 43 Rule 1(k) provides for an appeal when an order is passed under Rule 9 of Or. XXII refusing to set aside the abatement or dismissal of a suit. The preliminary question, therefore, arises whether the appeal is maintainable under the order in question. The order impugned in this appeal is neither an order refusing to set aside the abatement nor one refusing to set aside dismissal of the suit. In fact the court has allowed the application after condoning the delay and also allowed the abatement of the suit and has allowed the application for substitution. Such an order is not subject to an appeal under Or. 43 at all.