MAHARAJ SINGH Vs. BISHAMBHAR DAYAL

JUDGEMENT

(1.) AGGRIEVED against a partition decree passed by the trial court, the defendants went up in appeal. During the pendency of the appeal in the court of the Civil Judge, one Ram Chandra who was the respondent in that appeal died. The defendant-appellants filed an application for substitution which was opposed. The learned Civil Judge held that there was delay which had not been sufficiently explained. The substitution application was dismissed and the appeal was declared to have abated. Thereafter the defendant-appellants moved an application for setting aside the abatement. This was also dismissed by an order of 13th March, 1976. AGGRIEVED, the defendants have filed this First Appeal From Order in this Court.

(2.) AT the hearing of the appeal before a learned single Judge, a preliminary objection was taken on behalf of the plaintiff-respondents that the appeal was not maintainable. In support reliance was placed upon a decision in Mt. Umatur Rabab v. Mahadeo Prasad, 1941 AWR (HC) 251 where it was observed that no appeal lies from an order dismissing an application for setting aside the abatement of an appeal. The learned single Judge hearing this appeal felt that this decision requires reconsideration. He accordingly referred the following question of law to a larger Bench :

(3.) CLAUSE (k) refers to an order passed under Rule 9 of Order XXII. Order XXII. Rule 9 refers to an order of abatement of a suit. In view of Rule 11 of Order XXII, the provisions of Rule 9 are applicable to an appeal. An order of abatement or dismissal of an appeal can validly be passed under Rule 9. CLAUSE (k) of Order XLIII, Rule 1, however, refers to a "suit". It is well settled that an appeal is continuation or rehearing of a suit-Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540. In case of an appeal against the decree deciding a suit, the appeal is in law a rehearing of the suit, such an appeal is co-extensive with a suit. It should be included in the terra "suit". In our opinion the term "suit" has been used in clause (k) of Order XLIII, Rule 1 CPC in that sense.