BIPIN BIHARI SAHU Vs. RAJENDRA KUMAR SAHU

JUDGEMENT

(1.) THE present appellant Bipin Behari Sahu as plaintiff filed Title Suit No. 20 of 1993 in the Court of the Sub -ordinate Judge, Aska for partition and other reliefs against Harihar Sahu, the predecessor -in -interest of the present respondent Nos. 1 to 5 and respondents Nos. 6 to 9 (Defendant Nos. 2 to 5). During pendency of the suit Harihar Sahu, the defendant No. 1 died. The present appellant did not take any step for substituting the heirs of said Harihar Sahu. By order dated July 15, 2000, the trial Court recorded that the suit had abated against the defendants. Against the said order, the appellant has filed this present appeal. The Stamp Reporter has raised a question about maintainability of the appeal against the impugned order of abatement on the ground that the impugned order does not amount to a decree.

(2.) MR . Mohanty, learned Advocate for the appellant has submitted that as the suit has been ordered to abate against all the defendants, living as well as dead, such order amounts to a decree and is appealable. Mr. Mohanty has referred to a decision of the Calcutta High Court in Sabitribai Debi v. Jugal Kishore Das and others, AIR 1938 Calcutta 639, and a decision of the Jammu and Kashmir High Court in Achhar v. Koondi and others., AIR 1958 J and K 53.

(3.) IN Brij Jivan Lal and another v. Shiam Lal and others, AIR 1950 Allahabad 57. Allahabad High Court has referred to several earlier decisions including the decision in Sabitribai Debi and held that if entire suit abated as a result of the order of the Court such order amounted to a decree and was appealable.