AKKAS MIA Vs. ABDUL AZIZ BEPARI

JUDGEMENT

(1.) This is an appeal by the heirs of the appellant in the Court of appeal below against the order passed by that Court under Order 22, Rule 9, Civil P.C., refusing to set aside the abatement of the appeal pending in that Court. The original suit was for some money valued at less than 500 and the decree was passed against the appellant in the trial Court. Against that decree there was an appeal to the lower appellate Court. During the pendency of the appeal the original appellant died and the appeal abated under the provisions of Order 22, Rule 11, Civil P.C. which provides that Rule 4 of that order should apply in the case of an appeal. A preliminary objection has been taken as to the maintainability of the appeal on behalf of the respondents on two grounds. It is first urged that there would have been no appeal against the final decree made by the lower appellate Court, if the appeal itself had been heard, under Section 102, Civil P.C. There should therefore be no appeal against an order passed by the lower appellate Court. It is next urged that under Order 43, Rule 1(k) an appeal is allowed against an order under Rule 9, Order 22 refusing to set aside the abatement of a suit.

(2.) There is no provision under the Code for an appeal against an order refusing to set aside the abatement of an appeal made by the Court in the exercise of its appellate jurisdiction. The learned advocate for the appellants argues that the expression suit in Rule 1(k), Order 43 includes an appeal and reference is made to the provisions of Order 22. Rule 11, Civil P.C., which provides that in the application of Order 22 to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal; and he contends that as in that rule the word suit" is said to include an appeal, the same construction should be put to the word suit in the rule of Order 43. We do not think that this contention is sound. Order 22, Rule 11 only provides for the application of that order to appeals and in doing so states that the word suit shall be held to include an appeal. There is nothing in Order 43(1)(k) which enables us to apply the word suit to an appeal. Moreover, by reference to Section 105, Sub-section (1) of the Code it would appear that no appeal is allowed against an order such as this made by the Court in its appellate jurisdiction: That Sub-section runs as follows: Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction

(3.) Nothing has been shown to us which can be considered as an express provision that an order such as this made by a Court in its appellate jurisdiction is appealable. It is argued on behalf of the appellants that if the lower appellate Court makes an order refusing to set aside an abatement in an appeal, the party against whom the order is made if not allowed an appeal from it would be left absolutely without a remedy; but the remedy is provided in the last part of Sub-section (1), Section 105, Civil P.C., where any order affecting the decision of the case may be attacked by an appeal from the decree. As we are of opinion that there is no appeal against the order made by the lower appellate Court, this appeal must stand dismissed with costs; hearing fee, two gold mohurs.