'-\~ HI6H COURT QF CHHATTISSARH: BILASRUR S.B. HON'BLE SHRI yUAY KUMAR SHRIV^ST^V-A. J ^ISCELLANEOUSj4PPE4L N0.^288 of 2004 Appellants ABplicants E>efendants ResBondentff Non-^pplicants Plaintiff No.l Defencfan-t-Klo.2 Defendant No.3 to 5 are lega! represehtatives of Phuliabai 1) Lakshmi Narcyan S/o ©okulPrasad aged about-46 years 2) Shiv Narayan S/o SokulPrasod Aged about36 years Both resident of Talapara, Ma9ar'para Chowk, Bilaspur, Tah & Dist Bilaspur. Vs_ 1) Shyam Bai Wd/oBanshlal Aged about 76 yeaRS R/QJRajendraNagap: Bilaspur C6 2) StateofMPnow 5tcrte of Chhaft.isgarh, through the Collector, Bilaspur, C6 3) Oeyi Bdi agedabout 56 yrs 4) R<yjan aged about 41 years 5) Rajani aged aboyt 36 years ^ .. ' ' ; Respondents 3 to 5 are 5ons of Dwar'ikg Prasqd R/o Taliapara, Bi laspur PRESENT^' ' : , • :•• : ~ ' : . •: . ^ Shri Ram Kumar Tiwari, cpunselfortheappellants. -^ . . ... •• . . '• :.'•.' • " ^:": '.'•'•.;''.'.'' - ' ••' ' '. • : • . . •.'.' ••: . : Shrr Ahmed Hussain, counsel forrespondentsNp.l, 3|,4<&i5. ••ff • '•" •. . . ' ' ••'....'::.,: ••• '.. . .- Shri JD Bajpai,6overnmentAdvo<x(1^forj^sporidenl!Nc>.2. ••W%U .!f;?.lM •~"iss^sv.s'i: OR t> ER ( Passed on 24th february 2005) This appeal under Order 42 Rule (1) (k) of Code of Civil Procedure (henceforth "the Cdde") has been directed agdinst the order dated 24.09.2004 possed byThird Additional bistrict Judge Bilaspur in MJCNo.31/2002 whereby the applications filed by the appellants under Order 22 Rule 9 (2) of the Code and Section 5 of the Indioin Limitation Act has been clismissed. '^ I'-n-'-i' 2) Facts materia! for disposal of this appeal in brief compass are that owner of the sujit propertywas deceased JanMbai. Bansi 1^1, ^kul<& Dwarikgwere sons of Smt J^kibai and Bansi Lal and his wife Mainabai filed the suit on flie ground that they are entitled for half share of the suit propert/ aiong with Spkul. The appellantsare sons of deceased 6okul. During the pendency of the First Appeal, Dulara bai, wife of Sokul who was brought on record a!so died. The suit was also filed against Pltuliabai, wife of third son Dwarika Prasad of decedsed Janki bai. It was claimed in the suit thgt the will executed by Jouiki bai in favour of Laxmi Nardyan dnd Shiv Narayan, .^her6in the appeUcmts is invalid being contrary to law. Phuliabai also objeeted to the validityof ajleged willand claimectone third shdfe basis of will|executed by Janki bdi. in ttie suit property. Appellants defended the suiton the "^•es^'H^rl 3 3) The tria! Court decreed the claim of Bansi Lal and atso ^' that of Phuliabai. The trial Court held that not only Bansi Lal but also Phuliabai was entitled to one third share in the suit property and accordingly the decree wos passed that Bdnsi Lal, Sokul and Phuliabai are entitied to the extentof one third share in the suitproperty. 4) Appellants ond their father aggrieyed by the decree filed an cppeal bearing No.Sl-A/92, which wgs allowedpn 21.12.92. Thereafter Second Appeql numbered as 166/93 was preferred by Bansilal and Mainabai. In Second Appeal, 1-lon'ble the High Courtof MP by an order dated 12,09.1994 set aside the judginent and decree of the lower appelkrte Court and remanded the case to the lower appellate Court holding that Pbuliabai haddiedon 14.06.1986. She died during the pendency of the Fir'st Appeol; therefore, lower '-s • . • .• • • • • appellate Court was dir^cted to re-hear the cppeal and consider whetfier the appeal hasabnted onlyagainstPhuliabai or againstatl the respondents the learned lower Court after reconsidering dismissed thec^peal. . ^ -. ;. . ' . 5) The? lower dppellate Court dfter fflffording opporhjnit^ to both the parti^s considered the said issue and passed judgrBent and decree dated 07.1 abated agnihstall theresponclents.dismissedthe cipReal. .97 ih Ch/il Appeal Np.20-A^96 wherebyhotding the^dppeal "f^~:^;^}'^^^^.}' 6) Appellants a9grieved- by the said judgment <&. decree preferred an appeal under Section 100 of the CPC bsfore Hon'ble the High Court of AAP bearing Second Appeal No.195/97 confending that the appeal did not abatedgainstall respondents; therefore, itwas not necessary to bring the legat representatives of Phutiabai on record. Second Appedl No.195/97 uws dec.ided by 1-lon'ble the 1-ligh Court of AA.P vide order date3 15.04.1998 withan observdtion-riiat the appellant jnstead of adopting the straightforward approaGh i.e. filing an application for bringin9 legdl representatives on record tried to oyep reach the Court and failed in thfeir dttempt. Hon'ble the t-figh court of M.P also hetd that there is no question of reopening their case by furHier remand,therefore,dismis:sed theappeal. 7) Appetlants thereafter filed an opplication under Order 22 Rule 9 (2) read with Section 151 of the Code along with another apptication under Section 5 of the Indinn Limitation ^cton 22.06.98 foron order to set aside the aba'tetnent and fop bringing the 1890) representatives of decgased Phuliabalon record contending that they were not negligent and the application is bonafide. The application was op^osed by respondentsNo.1,3,4 & 5. 8) Hon'ble the High courtof'MPat Jc^lpurde^ •-•'.- • . .". ': ••• •'; '••• • '.' " ••• •• .:• Second Appwl No.166/93 ,oh t2.0?.19N [holtiingH^ resjKmdent|?Sm*iPhuliabc!ti,iwielow;:o^^:&warakci'ffru^aieB pei^n<^;of'1^e;)Firsf!Appi^lo il^;()6^l98'6<,.-3ltere^ S^SI^^:i»^<^"1;.'*W f-wfeife^i'si-^ pronounced by the lower appelfate Court was nullity hence the judgment ond decree of lower cypellq-l'e court was set dside and the Third Additioncl bistrict Judge Bilaspur was directed to rehear the appeal and to consider whether the appeal is abated only against -the fourth respondent or against all the reapondents. Admittedly, lecimed lower appellate Court considered the dispute and decided Civil appeoil No.20-A/96 on 07.02.1997 and held that, legal representatiyes of Phuliabai have not been brought on record; therefore, the appeal abates. The said judgment and decree was challenaed in Second Appeal No.195/97 before Hon'ble the High Court of M.P and Hon'ble the High Courtdismissed the sameon 15.04.98. I. 1 9) Order 22 daats with the procedure to be fotlowed where death, marridge insolvencyof the pdrtieshappen&during the pendency of the suit. The provisionsjire also applicable to appeals. Order 22 Rule 3 of the Code prescribes that in case:[ ; one of the plaintiffs or sole plaintiff dies and right to sue survives, the Court- on an application being moved within time preswibed for it, shallcause the legal representatives of-the deceased to be roade a party and prbceed with the syit, more pr less, same procedure is prescribed jri case of /:••'•" . . :' • • '"•• . ' . ':. . •: ' deathof one of the defendantsorsoledefendantuhder rule4. 10) suryive. it If the Court tlecides that •1-he pi9h-t' Jto sue does not is a^formal adjudication which cohclusiyBl<jr determmes "I'hje rights of the partjesjwith regard to qll or any &f the contrwver^v, i':fa H'U ae^itei^S 1 !'•?.1SS¥'^3.^?.as^'i'-*rr therefore, theorder amounts to decree and is appealable. But in cqse the Court comes to theconclusion that right to sue survive; in that case, it is for the party to move appropriate application for bringin9 the le9al representatives on record ond if the concerned party fails to bring legal representatlveson record within stipulated time, the suit or appeal as the case may and pursuant to that abate. Order of abatemsnt or dismissal are passed. Consequent to default caused by a party, the orderis passed and for setting aside the same, procedure has been prescfibed under Order 22 Rule9 of the Code. In case application for quashing abatement or dismissal of suit is rejected that order is appeaiable as an appecil against orders in accordance with Order 43 Rule 1 (k) of the cocle,'t'herefope, the orderofabatementbr dismissal passed as a'resul-t' of default eommitted by parties is not dn adjudication of righte therefore is not a decree and no appeal lies -j? against those orders. 11) Here in the instant cose the first appellate Court after receiving the case on rengand.considered the death of Phuliabai,who died on 14.06.1986 during the pendency of the appeal and held that no / ' • : ' • ' ' . .' • • "..'• . : . legal repcesentatives have been brought by the appellonts 6n record .'^' : . ' . •"'"••'•. ' • ' • ' '. therefore appeal abates. Theorder'rpassed by the fiFSt|appe]|ate Court dated 07.02.97 inCivilAppeaiNa.20-A/96 wasriQt a decree. In .spite of thaf, thecppellants preferred | seconct j agpea beqring No.195/97 but ifailed to succeed in ! ^ »ir attempt. .'i.,^. .KiS.MS'MW •^^''^'^t^^'""} ^^:'^.E After dismissal ofSecond AppealNo.195/97 on 15.04.98, the appellants filed the instdnt application under Order 22 Rule 9(2) of the Code ond Section 5 of theIndianLimitationActon 22.06.1998. ^- ••'-^ d 12) Smt Phulidbai in whose fwour partial decree was there, died on 14.06.1986. Therefore,within stipulatedtime from 14.06.1986 i.e. within 90 days appellants were required to file an application for bringing her legal representatives on record. Again when Hon'ble the Hi9h Cour'tof AAP in second appeal No.166/93 vide order dated 12.09.94 set aside the jud9ment ouid decree of first uppellate Court and remanded the case to first appellate Court to consider whether theappeal abates ds a whoteQr partly as a result pf death of respondent No.4 Phuliabai who died on 14.06.86 during pendenc/ of the First appeal. Again the appellants had- opportunity -s "• • ' • • .' ".. ' • , '.• .. to file application under Order22 Rule 9 (2) of the Code for bringing legal representatives on record. Learned first dppellate Court delivering the judgment and decree dated 07.02.97 in Civil Appeal No.20-A/96 held thatvfor want of bringing legal representatives of Phuliabai, the suit abates as a whole. The order was not dppealable. Insteaid availing the opportunity of filing appiication under Order 22 ^ • • . : '^ • ' '' '. . . '•'. :'.. • Rule 9 (2) of the Code, appeiiants filed second appeal before Hon'bte the High Court of MP. Mon'bte the High Cburtof JWP passed jydgment on 15.04.98 with following observations :- " Merely tjecaaj^ the lower eppeflwts Court wwnglf fran]ecl'ti'y&jssi&on_ i^ !:i,.;Si<E;,. ^i;i«jirii.^.;»!i^,Lri>ss,£.a:y^sip ;^r:i;:: ",!fi •:Ws. .ss ^.•-:-\^S.:M jii^i%L';:ri^ IJI^il ^- ws 8 v^- o-f date of {featti.'itcannot tie said liial- Ihe appe/lants wers preyentsd form filing Ifie applicatmns under Ofdef 22 rule 9 of Ihe Code of Civil Prowdwe and under Section 5 of ihe Umilwtmn Acf, for sett'ing aside ihe abatement^ conditiori of deby m do'mg so emd brmging ihe kgal represenistwes of Phuliabai on record, Jhe appellwits diould^iot have ftatew new stand. They coukf haw at kast taken Ihe Stmd in the al-tematiye -fhat abatement of first'cfipeal is liable -Iv be set aside and filed the neesssaryeyfplleeil-lwia fwp setfi'na aside'the ybatement condorwtion of delay for bringing ihe iega! reprewniviiiyes of Phu/tabeif on ivcotvf. Sistead of adopting the s+rviightforward apprwsch, ihey +riecl iw over-t^ach the Cowt and failed in their atiempt. JTiere is no quesl-ion of re-opening •theirca^by further remand." 13) From the facts and cjrcumstances stated above.it can -.y safely be inferped that appellatrts fcnowingly cfid not file the application under Order 22 ftule % (2) of the CPC within prescribed time limit, therefore, neith^r it wasestablished that they were not ne9li9e"t nor their filing of instant application with detay is bonafide.^ It is evident that oppellants willfullv not fotlowed the appropriate provisions to be appliec! at ap^ropriate stages. There is -^ . . • • '. nothing toshow that they were prevented frpm filin9 the oipplication at any stag^. Neither there is any pleading to the effect that the ^ . • • ' .' '. .. " ' • . . . .. . . • : • appellants were pi-evented, by sufficient cause frQ continuing the oppeal, nor factual mdtrtx as stated above supporfe 1-hejr bonoFficle. •-••'. •• •'..••• • . - 14) , Hon'ble the Hjgh Court of MP in Second Appeal Np.l95/97jFi.itsjud3mentdated 15.04:98 hasheldltl'iat itcannotbel said.;tharl- tKe appellants were preMa-ited^from •filing^ the ^tlication SSKiK?~;:3~ padma 9 under Order 22 Rule 9 (2) of the CPC and under Section 5 of the Indian Limitation Act for setting aside the abatementon condonation of delay in doing so and bringing the legal representativesof Phuliabai on record. The said finding also cannot be ignored. 15) I am of the opihibn that learned Court below on appropriate reasoning correctly dismissed the application filed by the appellant vide impugned order and that order does not cal! for interference by this Court in its appelldnt jurisdiction. 16) 17) In the result, the appeal is disniissed. Taking into consideration the factsand circums'tancesof the case, parties shall hear their own casJy-^J Sd/- V.K. Shrivastava Judge ^gs^i^^^^^^^•^^^