BRIJ JIVAN LAL Vs. SHIAM LAL

JUDGEMENT

(1.) This is a second appeal by Goswami Brij Jiwan Lal and another against the order of the Civil Judge of Mathura.

(2.) The facts are that a suit was brought by Goswami Brij Jiwan Lal and another against Goswami Chagan Lal and others in 1933 in the Court of the Munsif of Mathura which was numbered as suit No. 319 of 1933. One of the plaintiffs of that suit died and no application was made, within ninety days of the death of the deceased plaintiff, to bring his heirs on the record. One of the defendants also died and in his case as well no application was made within the time allowed by law to bring his heirs on the record. Thereupon an application was made, on behalf of the main contesting defendants in the suit, pointing out that the suit had abated. The fact that one of the plaintiffs and one of the defendants had died more than ninety days before the application was made and that their heirs had not been brought on the record is not in dispute. The Munsif, after hearing both, parties on the application of the defendants, held that the suit had abated in its entirety on, the ground that the right to sue did not survive of the remaining plaintiff alone. He, therefore, dismissed the suit on the ground of abatement with costs to the contesting defendants. On appeal, the Civil Judge, held that no appeal lay and, therefore, dismissed it. The plaintiffs appellants have come up in appeal from this order The only point for decision, therefore, in this appeal is whether an appeal lies in such circumstances. If that is so, the matter will have to be remanded to the lower appellate Court for decision of the appeal on merits.

(3.) It is admitted, on behalf of the appellants, that there are certain authorities of this Court which lay down that no appeal lies in a case where the suit has been dismissed on the ground of abatement. It is, however, urged that the facts of the present case are distinguishable from the facts of the cases decided by this Court and that, in any case, the matter requires review in view of the pronouncements of the other High Courts on the earns question. There is, of course, no provision under Order 43, Rule 1, Civil P. C. for an appeal against an order dismissing the suit on the ground that it has abated. The contention, on behalf of the appellants, is that the order of the trial Court amounted to a decree and, therefore, an appeal would lie under Section 96, Civil P. C. Learned counsel urges that a distinction has to be made between those orders dismissing the suit for abatement, which are merely orders and, therefore, cannot be appealed against in view of the fact that there is no provision in Order 43, Rule 1, and those orders of abatement which amount to a decree and are, therefore, appealable, It is contended that there exists a distinction which has been drawn by other High Courts and which does not appear to have been considered in the reported cases of this Court.