GYANWARI Vs. JAI SINGH

JUDGEMENT

(1.) A suit was instituted by the respondents against one Swarupa. It was decreed ex parte on 25th August, 1980. About two years thereafter Swarupa died on 21st August, 1982. The applicants in the present revision who are the legal representatives of Swarupa, made an application for setting aside the ex parte decree dt 25th August, 1980 which was allowed on 14th April, 1983. The suit having been restored to its original number the respondents made an application on 3rd October, 1983 for amendment of the plaint by deleting the name of Swarupa as defendant and adding the names of his legal representatives namely the applicants. This application was allowed on the same date. Subsequently an application was made by the applicants for recalling the order dt 3rd October, 1983. On the ground that since no application to substitute the legal representatives of Swarupa had been made within 90 days of his death the suit had automatically abated and the order dt. 3rd October, 1983 allowing amendment of the plaint as aforesaid was thus illegal. By its order dt. 7th August, 1984 the trial Court allowed this application of the applicants and declared the suit to have abated. The respondents thereafter made an application under O.22, R. 9(2) read with S.151, C.P.C. with a prayer for recalling the order dt. 7th August, 1984 abating the suit and permitting the respondents to amend their plaint in pursuance of the application already made on 3rd October, 1983. This application has been allowed by the trial Court by the order against which the present civil revision has been preferred.

(2.) It was urged by counsel for the applicants that the trial Court has committed an error in passing the order sought to be revised inasmuch as no sufficient cause had been made out why application to substitute the legal representatives of Swarupa had not been made till 3rd October, 1983. I find it difficult to agree with this submission. As seen above, on 21st August, 1982 when Swarupa died the suit was not pending inasmuch as it had already been decreed ex parte on 25th August, 1980. Apparently therefore there was no occasion for making an application by the respondents to substitute the legal representatives of Swarupa within 90 days of 21st August, 1982. The ex parte decree passed in the suit on 25th August, 1980 was set aside by the trial Court on 14th April, 1983. Since the order setting aside the ex parte decree had been passed on the application made by the legal representatives of Swarupa namely, the applicants themselves had virtually already come on record and under these circumstances it was not necessary for the respondents to make any formal application under O.22, R.4 of the Civil P. C. to substitute them as legal representatives of the deceased Swarupa. What was required to be done by the respondents in these circumstances, in order to keep the record straight was to get the name of deceased Swarupa deleted from the plaint and to have the names of the applicants mentioned as defendants, they already having put in appearance by making an application to set aside the ex parte decree. This is precisely what was done by the respondents when they made the application dt.3rd October, 1983 for amendment of the plaint which was allowed. The subsequent order passed by the trial Court on 7th August, 1984 on the application of the applicants holding the suit to have abated was apparently an order without jurisdiction and suffered from a manifest error of law. On the said order being set aside by the order sought to be revised the mistake committed by the trial Court in passing the order dt. 7th August, 1984 has been rectified with the result that substantial justice has been done between the parties and no case for interference in the exercise of the powers of this Court under S. 115, C. P. C. has been made out.

(3.) Counsel for the applicants then urged that the order sought to be revised was essentially an order whereby the earlier order dt 7th August 1984 had been reviewed by the trial Court and consequently this order was appealable under O.43, R.1(w) of the Civil P.C. and that this memorandum of revision may be treated as that of a first appeal from order. As seen above, not only that the application had been made under O.22, R.9(2) read with S.151, C.P.C. and not for review of the order dt. 7th August, 1984,I am of the opinion that on the facts of the instant case that was the correct provision under which the application could have been made by the applicants. An order passed under O.22, R.9(2) read with S. 151, C.P.C is not an order against which an appeal has been prescribed under O.43, R.1 of the Civil P.C. The prayer for converting the memorandum of revision into that of a first appeal from order, therefore, does not deserve to be granted. Here it may also be pointed out that even if an appeal lay against the order sought to be revised, on the facts of the instant case and the legal position enumerated above, there would be no merit even in the appeal inasmuch as the order cannot be said to be in any manner illegal.