RADHEYLAL Vs. KALAWATI

JUDGEMENT

(1.) THIS is a defendants' ap plication in revision against an order pass ed in appeal. The suit had been instituted by one Smt. Yashoda Devi for a permanent injunction to restrain the defendant from interfering with her possession over the house in dispute. During the pendency of the suit the plaintiff died on 25-3-68. On 13-5-68 Smt. Kalawati filed an application under Order XXH, Rule 3, C.P.C. for her being brought on record as plaintiff in place of Smt. Yashoda Devi. An objection was filed by the defendant to the effect that Smt. Kalawati had re-married and was, therefore, not an heir to the plaintiff. The trial Court held that she had re-married and, therefore, Was not an heir of her daughter and refus ed substitution. The order was passed on 9th of September, 1968. Against this order Smt. Kalawati filed an appeal. The appel late Court held that Smt. Kalawati had not been proved to have re- married and was, therefore, entitled to be substituted as an heir of Smt. Yashoda Devi. On this find-tog the appeal was allowed. Against that order the defendant has filed the present revision.

(2.) LEARNED counsel for the appli cants has contended that the court below exercised its jurisdiction not vested in it by law because no appeal was maintainable against the order of the trial Court. There is no force in this contention. Order 43, Rule 1 (k) provides that an appeal shall lie from an order under Rule 9 of Order XXII refusing to set aside the abatement or dis missal of a suit. Where the Court refuses the application for substitution, in effect it declares the suit as abated, because the effect of the order is nothing else than what will follow if no application for substitution was made by the heir within the time limit ed by law. Rule 3 (2) of Order XXII will thus be attracted and the suit shall be deem ed to stand abated. As the effect of the order passed by learned Munsif, in sub stance was to declare the suit abated, appeal was maintainable.

(3.) ACCORDINGLY the revision is dis missed but, in the circumstances of the case, there will be no order as to costs. Revision dismissed.