SAT PAL L RAMESHWAR DIAL Vs. BUDHA LALJI

JUDGEMENT

(1.) THIS appeal is directed against the order of the District Judge Sangrur, dated 22nd October 1963, whereby he rejected the application of the appellant under Order 22, Rules 4, 9 and 11 of the Civil Procedure Code for setting aside the abatement of the appeal between the parties and holding that the appeal had partially abated qua Hazari Lal, deceased, as well as Niranjin Lal and Banwari Lal, respondents. Shri R. N. Sanghi, one of the respondents, has taken a preliminary objection that no appeal lies against the impugned order. He argues that the order refusing to set aside abatement of an appeal is not one of the orders against which appeal is provided under Order 43 of the Civil Procedure Code or any other provisions of law. Referring to Clause (k) of Rule 1 of Order 43 of the Civil Procedure Code, Shri Sanghi contends that the right of appeal under this clause is against an order made under Order 22, Rule 9 of the Civil Procedure Code refusing to set aside the abatement or dismissal of a suit only and not against an order refusing to set aside abatement or dismissal of an appeal. Shri Rule N. Mittal, appearing for the appellants, has, however, urged that Clause (k) of Rule 1 of Order 43 of the Civil Procedure Code applies to orders passed in appeal as well under Order 22, Rule 9 of the Civil Procedure Code as Order 22, Rule 9 has been expressly made applicable to questions of abatement in appeal by virtue of that specific provision contained in Rule 11 of Order 22, which provides :-

(2.) HE argues that since an application for setting aside an abatement or dismissal of an appeal has to be deat with by the Court under Order 22, Rule 9 of the Civil Procedure Code, any order passed under that rule would obviously be covered by Clause (k) of Rule 1 of Order 43 of the Civil Procedure Code, which reading with the opening words of Rule 1 of Order 43 provides; -

(3.) ACCORDING to the submission of Mr. Mittal, this Clause (k) of Order 43, Rule 1 of the Civil Procedure Code must cover all orders under Order 22, Rule 9 whether passed in appeal or in a suit. In support of his submission, he has relied upon the decisions of the Patna High Court in Hari Saran Singh v. Mohommad Eradat Hussain, AIR 1925 Pat 162, Wajid Ali v. Fagoo Mandal, AIR 1938 Pat 125, and Ram Ranbijaya Prasad Singh v. Madho Turha. AIR 1939 Pat 623, besides the decision of the Nabpur High Court in Ganpat Bapuji v. Maruti Deosthan, AIR 1952 Nag 181. These authorities certainly support his submission that the present appeal is competent under Order 43, Rule 1 (k) of the Civil Procedure Code. The decision of this Court in Smt. Chando Devi v. Municipal Committee, Delhi, AIR 1961 Punj 424, to which Shri Mittal has also referred, is not directly in point. There the question for consideration before the Bench was whether an appeal under Clause 10 of the Letters Patent of this Court lay against an order refusing to set aside the abatement of an appeal pending before a learned Single Judge of this Court. The Bench held that no such appeal was competent. The decision proceeded primarily on the finding that an order refusing to set aside an abatement was not a judgment against which an appeal under Clause 10 of the Letters Patent could lie. In dealing with this matter, Chopra j. , who delivered the judgment of the Court, however, observed as follows:-