MAYA RAM Vs. NANAK CHAND

JUDGEMENT

(1.) A suit for recovery of Rs. 2,500.00 was instituted against the appel-lant way back in 1968. During the trial, one of the plaintiffs-Battu Mal-died in or about 8-6-1972. His two sons the other two plaintiffs, were on record and no further steps were taken by them to bring other legal representa-tives on record. The trial Court vide order dated 12-7-1972 directed removal of deceas-ed-plaintiff from index and allowed the other two plaintiffs to continue the suit. The Court decreed the suit on 17-1-1974. In appeal, learned District Judge, Kathua remanded the suit to trial Court to find out whether it had abated in terms of Order XXII (3) of CPC. Upon this, plaintiffs filed an application on 20/05/1976 for substitution as legal representatives and on a fresh consideration of the matter, the Court held the suit to have abated as a whole after concluding that right to sue of surviving plaintiffs did not survive. Plaintiffs went in appeal against and the District Judge reversed the judgment holding that right to sue of the other two plaintiffs had survived in the facts and circumstances of the case and directed the trial Court to dispose of the suit on merit. Hence, this appeal by appellant-defendant.

(2.) The short and the point only canvassed that arises for consideration is whether or not the appeal before District Judge was com-petent ?

(3.) Mr. L K Sharma LC for appellant is emphatic that no appeal would lie against the order of abatement recorded by the trial Court, as no such appeal was provided under O. 43 of C.P.C. He says that an appeal could lie only against an order refusing to set aside order of abatement, which could only be passed on an application to be filed by plaintiffs under O. XXII, R. 9. Since they had made no such application and judgment of trial Court could not be treated to be an order refusing to set aside abatement, therefore, appeal before District Judge, Kathua was incompetent. According to him, it was neither a decree within the meaning of S. 2(2) and, therefore, no appeal could lie against it under S. 96. He relied upon AIR 1963 All 389 and AIR 1978 Cal 274 in support of his conten-tion.