Case: Madan Naik  by Legal Representatives and Ors.  Vs.  Hansubala Devi and Ors.

made for setting aside abatement of appeal, an order refusing to set aside abatement is appealable as an order under Order 40, Rule 1 (k) CPC. There being a specific provision conferring a right of appeal one can resort to the same. 7. The first error occurred when after disposing of the appeal as having abated the learned Judge of the first appellate court proceeded to direct that the appeal is dismissed on contest. There was no contest. There was no adjudication of rights or adjudication of dispute on merits. The claim in the suit was with regard to title to a tank and its embankment. There was no formal complete and binding adjudication of the rights of the parties as canvassed in the appeal before the first appellate court. The appeal stood disposed of as having abated without the slightest reference to the rights of the parties. In this situation there was no question of the drawing up the decree. 8. Section 2, sub-section (2) of the Code of Civil Procedure defines decree to mean the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144 but shall not include any adjudication from which an appeal lies as an appeal from an order When an appeal abates for want of substitution as envisaged by sub-rule (1) of rule 9 of Order 22, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits section 11 of CPC would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 9 (1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing of the first appeal only course open is to move the court for setting aside abatement. An order under Order 22. Rule 9 (2), CPC refusing to set aside abatement is specifically appealable under Order 43, Rule 1 (k). Such an adjudication if it can be so styled would not be a decree as defined in section 2 (2), CPC. Section 100 provides for second appeal to the High Court from every decree passed in appeal by any court subordinate to the High court on the grounds therein set out. What is worthy of notice is that a second appeal lies against a decree passed in appeal. An order under Order 22, Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent. 9. It would thus appear that the second appeal preferred by the original defendants was incompetent. But the appeal from order refusing to set aside abatement was competent. If the second appeal was incompetent, its dismissal cannot have any impact on the disposal on merits of the appeal from order, and that was rightly done by the learned Single Judge. The learned Single Judge admitted the appeal from order and dismissed the second appeal. In fact, in order to avoid this prolonged litigation upto this Court, it could have been mentioned that the second appeal is dismissed as incompetent or as having become infructuous as the appeal from order was preferred. In any event, the legal position would not change merely because an incompetent second appeal was preferred which came up for hearing and was dismissed in the circumstances clearly showing that it was dismissed as incompetent. It could have no impact on merits or validity of the decision of the learned Single Judge in the appeal from order. 10. It may be recalled that the appeal from order was allowed holding that the appellants in the first appellate court were prevented by sufficient cause from seeking substitution within the prescribed period of limitation and an acceptable case was made out for condoning the delay, setting aside the abatement and granting substitution. This decision of the learned Single Judge in appeal from order remains unimpaired unaffected and inviolable by the dismissal of the second appeal on the ground that it was either incompetent or infructuous. 11. After the learned Single Judge allowed the appeal from order and remitted the case to the first appellate court original plaintiffs preferred Letters patent appeal. Frankly speaking no appeal would lie under Letters Patent against a decision rendered by the High court in an appeal from order under Order 43, Rule 1. This is one good ground to quash the decision of the High court in Letters Patent appeal But assuming without deciding that Letter Patent appeal was competent even on merits the High Court was not justified in interfering with the decision of the learned Single Judge. The Division Bench hearing the Letters Patent appeal was clearly in error in holding that the dismissal of the second appeal had rendered the appeal from order infructuous. We are unable to appreciate how this conclusion is arrived at by the High Court and it is wholly unsustainable.12. The High Court was equally in error in holding that the second appeal was not incompetent because the first appellate court had also made an order dismissing the appeal on contest. That part of the order of the first appellate court was contrary to law and without jurisdiction and non est, once the learned Judge held the appeal before him had abated. For these reasons we are satisfied that the Division Bench of the High Court was in error in allowing the Letters Patent appeal and its decision is contrary to law and unsustainable and must be quashed and set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. When an appeal is disposed of having abated and thereafter an application is made for setting aside abatement of appeal, an order refusing to set aside abatement is appealable as an order under Order 40, Rule 1 (k) CPC. There being a specific provision conferring a right of appeal one can resort to the same7. The first error occurred when after disposing of the appeal as having abated the learned Judge of the first appellate court proceeded to direct that the appeal is dismissed on contest. There was no contest. There was no adjudication of rights or adjudication of dispute on merits. The claim in the suit was with regard to title to a tank and its embankment. There was no formal complete and binding adjudication of the rights of the parties as canvassed in the appeal before the first appellate court. The appeal stood disposed of as having abated without the slightest reference to the rights of the parties. In this situation there was no question of the drawing up the decreen (2) of the Code of Civil Procedure defines decree to mean the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144 but shall not include any adjudication from which an appeal lies as an appeal from an order When an appeal abates for want of substitution as envisaged bye (1) of rule 9 of Order 22, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits section 11 of CPC would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 9 (1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing of the first appeal only course open is to move the court for setting aside abatement. An order under Order 22. Rule 9 (2), CPC refusing to set aside abatement is specifically appealable under Order 43, Rule 1 (k). Such an adjudication if it can be so styled would not be a decree as defined in section 2 (2), CPC. Section 100 provides for second appeal to the High Court from every decree passed in appeal by any court subordinate to the High court on the grounds therein set out. What is worthy of notice is that a second appeal lies against a decree passed in appeal. An order under Order 22, Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent9. It would thus appear that the second appeal preferred by the original defendants was incompetent. But the appeal from order refusing to set aside abatement was competent. If the second appeal was incompetent, its dismissal cannot have any impact on the disposal on merits of the appeal from order, and that was rightly done by the learned Single Judge. The learned Single Judge admitted the appeal from order and dismissed the second appeal. In fact, in order to avoid this prolonged litigation upto this Court, it could have been mentioned that the second appeal is dismissed as incompetent or as having become infructuous as the appeal from order was preferred. In any event, the legal position would not change merely because an incompetent second appeal was preferred which came up for hearing and was dismissed in the circumstances clearly showing that it was dismissed as incompetent. It could have no impact on merits or validity of the decision of the learned Single Judge in the appeal from order10. It may be recalled that the appeal from order was allowed holding that the appellants in the first appellate court were prevented by sufficient cause from seeking substitution within the prescribed period of limitation and an acceptable case was made out for condoning the delay, setting aside the abatement and granting substitution. This decision of the learned Single Judge in appeal from order remains unimpaired unaffected and inviolable by the dismissal of the second appeal on the ground that it was either incompetent or infructuous11. After the learned Single Judge allowed the appeal from order and remitted the case to the first appellate court original plaintiffs preferred Letters patent appeal. Frankly speaking no appeal would lie under Letters Patent against a decision rendered by the High court in an appeal from order under Order 43, Rule 1. This is one good ground to quash the decision of the High court in Letters Patent appeal But assuming without deciding that Letter Patent appeal was competent even on merits the High Court was not justified in interfering with the decision of the learned Single Judge. The Division Bench hearing the Letters Patent appeal was clearly in error in holding that the dismissal of the second appeal had rendered the appeal from order infructuous. We are unable to appreciate how this conclusion is arrived at by the High Court and it is wholly unsustainable12. The High Court was equally in error in holding that the second appeal was not incompetent because the first appellate court had also made an order dismissing the appeal on contest. That part of the order of the first appellate court was contrary to law and without jurisdiction and non est, once the learned Judge held the appeal before him had abated. For these reasons we are satisfied that the Division Bench of the High Court was in error in allowing the Letters Patent appeal and its decision is contrary to law and unsustainable and must be quashed and set aside.