AYYA MUDALI VELAN Vs. VEERAYEE

JUDGEMENT

(1.) This appeal is appeal against the decision of the Lower Appellate Court that no appeal lay to it against the District Munsif s order refusing to implead the appellant as legal representative of the deceased plaintiff.

(2.) The Lower Appellate Court s main ground of decision is that the appeal should be against the order of abatement or dismissal of the suit. It is not possible understand how appellant could appeal against an order, to which he would not be a party and on this ground, without deciding whether under he present Code an order of abatement is in any respect equivalent to or appealable as a decree dismissing the suit and without expressing any opinion as to the propriety of some portions of the language used in the Judgments in Suppu Nayakan v. Perumal Chetty (1916) 80 M.L.J. 486, I must reject this ground of decision.

(3.) The correct view of the law is in my opinion that indicated in Rama Rao v. Rajah of Pittapur (1919) I.L.R. 42 Mad. 219. The Order appealed against in the Lower Appellate Court was a decree because it negatived the appellant s right to the relief, which the original plaintiff had sought in the suit, and was an adjudication on appellant s claim within the definition Section 2(2) of the Civil Procedure Code; and as decree such an order is appealable. Some argument to the contrary was founded on Lakshmi Achi v. Subramania Iyer (1915) ILR 39 Mad. 219 and the dictum on page 493 that the legislature has given no right of appeal against orders under Order XXII Rule 3, I am content to read this as referring only to the fact that no appeal has been given against those orders as such or excent in cases which they also have the character of decrees. That was Sufficient for the decision of the case before the learned Judges one in Which no abatement was in question the appeal being against a refusal to make the appellant a plaintiff, when one representative of the deceased plaintiff, who could prosecute the litigation in succession to him, was already on the record and the refusal involved only an adjudication between that representative and appellant not between the appellant and the defendants in the suit.