K R SUBRAMANIA IYER Vs. VENKATARAMIER

JUDGEMENT

(1.) We think that when a Court treats a suit having abated owing to the cause of action not surviving, there is no right in the plaintiff s legal representative to apply under Order XXII, Rule 9, Clause (2), of the Civil Procedure Code to set aside that abatement. Clause (2) of Rule 9 applies only to cases where the abatement takes place in consequence of an application not having been made "within the time limited by law" to bring in the legal representatives. This seems to us to be quite clear from the second sentence in Clause (2) of Rule 9 which refers to the setting aside of "the abatement" (that is, the abatement mentioned in the 1st sentence) if it be proved that he (the legal representative) was prevented by any sufficient cause from continuing the suit.

(2.) We think that an order of the Court declaring that a suit has abated owing to the cause of action not surviving is a decree, as it determines that the right of the plaintiff ceased to exist on his death and, therefore, it falls within the definition of a decree, there being no appeal provided for in the Code from that order "as an appeal from an order" [see exception (a) to Section (2) of the Civil Procedure Code].

(3.) The District Munsif, therefore, acted illegally in entertaining and adjudicating on the incompetent application filed under Order XXII, Rule 9, and the District Judge also acted illegally in adjudicating upon such an application on appeal. Both Courts ought to have rejected the petition filed under Rule 9 in March 1912, leaving the plaintiff s legal representatives to appeal against the prior order and decree of 19th December 1911 which dismissed the suit as having abated and on the ground that the right to sue did not survive.