HUKUMCHAND Vs. BIHARILAL

JUDGEMENT

(1.) The defendant aggrieved of the order dated 9-7-1992 passed in Civil Appeal No. 29/1991 by the District Judge, Vidisha, refusing to set aside the order of abatement of the appeal, has preferred this appeal under O. 43, R. 1(k), Civil P.C., for short, the 'C.P.C.'

(2.) A preliminary objection has been raised by Shri K. B. Chaturvedi, learned counsel for the respondents/plaintiffs that in view of S. 104(2), C.P.C. the order of refusing to set aside the abatement, passed in the appeal, cannot be construed to have been passed in exercise of the original jurisdiction therefore, no appeal will lie under O. 43, R. 1(k). Counsel pressed into service Sat Pal v. Budha Lalji, AIR 1968 Punj and Har 70; Babubhai Ratanchand v. Motilal, AIR 1974 Guj 152 and C. Kalahasti v. P.C.M. Chetti, AIR 1975 Mad 3.

(3.) On the other hand, Shri M. M. Kaushik, learned counsel for the appellant/defendant, submitted that O. 43, R. 1(k) has to be interpreted along with O. 22, R. 11, C.P.C. and, accordingly, the word 'suit' under O. 43, R. 1(k) has to be interpreted so as to include an appeal and, therefore, an appeal shall lie against the order passed under O. 22, R. 9, C.P.C., refusing to set aside the abatement of the appeal. Reliance was placed on Ganpat Bapuji v. Shri Maruti Deosthan, AIR 1952 Nagpur 181; Mir Walid Ali v. Fagoo Mandal, AIR 1938 Pat 125 and Alphonso Nazareth v. Xavier Dias, AIR 1971 Mys 79. It was also submitted that an appeal is continuation of the suit; therefore, if an order is passed in an appeal refusing to set aside the abatement, an appeal will lie.