Mangluram vs Surredder Singh & Ors

2. Feeling aggrieved the appellant filed an appeal in the court of the V Additional District Judge, Bilaspur. The appellate court allowed the appeal by order dated 28.1.1998. It held that the registered will was proved by examining one of the attesting witnesses; that deceased Prannath himself had submitted an application in court in the pending suit on 25.10.1994 referring to the execution of his will dated 10.10.1994 and praying that his evidence 3 may be recorded without delay; and that therefore the appellant was entitled to be impleaded as the legal representative of the deceased plaintiff. The appellate court rejected the contention of the respondents-defendants that the appeal was not maintainable. It held that the order of the trial court dismissing the suit as a consequence of the rejection of the application under Order 22 Rule 3 of the Code would fall within the definition of "decree"

party requesting the court to make him a party as the legal representative of the deceased plaintiff. Necessarily unless the applicant in the application under Order 22 Rule 3 allowed and the applicant is permitted to come on record as the legal representative of the deceased, he will continue to be a non-party to the suit. When such an application by a non-party is dismissed after a determination of the question whether he is a legal representative of the deceased plaintiff, there is no adjudication determining the rights of parties to the suit with regard to all or any of the matters in controversy in the suit. It is determination of a collateral issue as to whether the applicant, who is not a party, should be permitted to come on record as the legal representative of the deceased. Therefore an order dismissing an application under Order 22 Rule 3 after an enquiry under Rule 5 and consequently dismissing the suit, is not a decree.

(*what is referred as `six months' is three months, under Article 120 of Limitation Act, 1963).

(emphasis supplied)

(emphasis supplied) Re: Question (ii)

Conclusion

15. In view of the above, the finding of the High Court that the order dated 31.1.1996 passed by the trial court, was not appealable is upheld. The finding of the High Court that the will was not proved and therefore, the appellant was not a legal representative is set aside as the said finding was not warranted without consideration of the entire evidence. As a consequence, it will be open to the appellant to challenge the order dated 31.8.1996 in a revision petition before the High Court and if such a revision is filed, the period spent till now in bona fide litigation, shall have to be excluded for purposes of limitation.

16. We accordingly allow this appeal in part and set aside the finding of the High Court on the merits of the matter. As we have upheld the finding of the High Court that the order dated 31.8.1996 was not a decree and not appealable, we uphold the setting aside of the judgment dated 28.1.1998 of the appellate court, but reserve liberty to the appellant to challenge the order dated 31.8.1996 in revision. If a revision is filed within 90 days from today, the High Court will condone the delay in view of pendency of the matter till now.