IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13055 of 2011 Bimal Prasad Singh & Anr Versus Urmila Devi @ Anita Devi & Ors ---------------------------------- O R D E R 12. 30.09.2011 1. Heard the learned senior counsel Mr. S.S. Dvivedi appearing on behalf of the petitioners. Nobody appears on behalf of the respondents inspite of service of notice. 2. This application under Article 227 of the Constitution of India has been filed by the petitioners against the order dated 17.7.2007 passed by District Judge, Munger in Misc. Appeal No. 24 of 2006 allowing the appeal and setting aside the order dated 9.11.2006 passed by Subordinate Judge, 1st Munger in Title Suit No. 60 of 2002. 3. The short fact is that one Vishnu Yadav filed Title Suit No. 60 of 2002. The said sole plaintiff died on 8.5.2004. One Badri Vishal Yadav filed application for substitution in place of sole plaintiff. The petitioners raised objection on the ground that Badri Vishal Yadav is not the legal representative of sole plaintiff Vishnu Yadav. The trial court held inquiry under Order 22 Rule 5 C.P.C. and found that Badri Vishal is not the nephew of plaintiff and, therefore, dismissed the suit as abated. Against the said order the said Badri Vishal filed Misc. Appeal No. 24 of 2006. Before the appellate court the 2 objection was raised by the petitioners herein that the order passed under Order 22 Rule 5 C.P.C. is not appealable. The learned appellate court overruled the objecting on the ground that no doubt the order under Order 22 Rule 5 C.P.C. is not appelable but in the impugned order the trial court after giving finding that Badri Vishal is not nephew dismissed the suit as abated and, therefore, the order is appealable. The trial court also found that in the written statement the present petitioners have pleaded that the suit is bad for non- joinder of necessary party i.e. the said Badri Vishal and, therefore, it was not necessary to enquire into the matter under Order 22 Rule 5 C.P.C. On these findings the appellate court allowed the appeal and set aside the order passed by the court below. 4. The learned senior counsel Mr. S.S. Dvivedi submitted that the order passed by the appellate court is without jurisdiction as the order passed by the trial court was not appealable. In such circumstances the appellate order is required to be set aside. 5. From perusal of the trial court’s order it appears that the learned trial court decided the heirship of Badri Vishal and held that the petitioner is not nephew of the deceased and no other person came to say that he is legal representative of the deceased and hence the suit is abated. No doubt, the order passed by the trial court under Order 22 Rule 5 is not appealable 3 but in the present case consequential order has been passed abating the suit. In other words, the learned court below refused to set aside the abatement. In such circumstances that part of the order whereby the right of the appellant regarding his right to be substituted was not appealable but the order whereby it has been held that the suit abated is appealable as it will amount to deciding the rights and controversy between the parties in the suit. It appears that the learned lower appellate court considered all aspects of the matter and the points raised by the petitioners and held that the trial court abated the suit which is consequential order and, therefore, the appeal is maintainable and decided the appeal. 6. In supervisory jurisdiction under Article 227 of the Constitution of India, I find no reason to interfere with the impugned order. Therefore, this writ application is dismissed. S.S. (Mungeshwar Sahoo, J.)