The time deciding the maintainability of the appeal in civil suit shall be decided solely on the provisions of CPC and the facts of the said case- High Court of Karnataka.

 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY 2021 THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR FIRST APPEAL NO. 11 OF 2012SMT. KALAMMA SINCE DEAD BY TESTAMENTARY LEGAL REPRESENTATIVE B.H. PALAKSHACHAR SON OF LATE KAMMAR HANUMANTHACHAR AGED ABOUT 44 YEARS R OF ALUR VILLAGE AND POST DAVANAGERE TALUK AND DISTRICT 577 512. BY SRI.CHANDRAIAH. ADVOCATE) 1. SMT PREMAMMA @ PREMAKKA W O LATE TULAJACHARI AGED ABOUT 57 YEARS SMT RATHNAMMA @ NAGARATHNAMMA W O SHASHIDHARACHARY AGED ABOUT 31 YEARS SRI. PRABHU S O TULAJACHARY AGED ABOUT 27 YEARS 2. 3. ... APPELLANT 2 THE RESPONDENTS NO. 1 TO 3 ARE PERMANENT RESISDENTS OF ALUR VILLAGE DAVANAGERE TALUK 577 512. ... RESPONDENTS BY SRI. B.K.MANJUNATH. ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 AND 2 READ WITH SECTION 96 OF CPC AGAINST THE ORDER DATED 08.09.2011 PASSED ON I.A. NO. 18 IN O.S.168 2009 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE DAVANAGERE DISMISSING THE I.A. NO.18 FILED UNDER ORDER XXII RULE 1 AND 2 OF THIS REGULAR FIRST APPEAL COMING ON FOR HEARING THIS DAY THE COURT DELIVERED THE On 25.01.2021 this appeal was disposed of after hearing the learned counsel for the parties by dictating orders in the open Court. However while correcting the draft of the judgment the decision of the Hon’ble Supreme Court in Mangluram Dewangan v. Surendra Singh and Others1 is noticed and therefore the appeal is listed for ‘being spoken to’. The learned counsel for the parties are 112 SCC 773 3 heard again and this time on maintainability of the appeal in the light of the aforesaid decision. 2. This appeal is filed impugning the order dated 8.9.2011 passed by the I Additional Sessions and District Judge Davanagere dismissing IA.18 filed by the appellant under Order XXII Rule 1 of Code of Civil Procedure and consequentially dismissing the suit as not surviving for consideration on merits. The plaintiff Smt. Parvathamma has filed the suit in O.S.No.168 2009for declaration that she is the absolute owner of the land in Sy.No.102 P measuring 10 acres 24 guntas of Alur Village Anagodu Hobli Davanagere Taluk and for possession with other consequential relief of mandatory injunction. Smt.Parvathamma who had examined herself as PW.1 has died during the pendency of the suit. The appellant who asserts that she is the wife of Smt. Parvathamma’s 4 husband’s brother has filed IA 18 for leave to come on record as the legal representative. 3. The civil Court has allowed this application by the order dated 22.12.2009 and when this order is impugned before this Court in W.P.No.2097 2010 the order dated 22.12.2019 is quashed and IA is restored for reconsideration after necessary enquiry. The petitioner has examined herself and two other witnesses. The Civil Court on appreciation of the evidence on record has rejected the application and the present appeal is filed calling in question the said order. The Hon’ble Supreme Court in Mangluram Dewangan v. Surendra Singh and Others supra while considering the question whether an order of the trial Court rejecting an application filed under Order XII of the Code of Civil Procedure by a person claiming as legatee and consequentially dismissing the suit in the absence of any legal representative would be an appealable decree has 5 concluded that such order would not be a decree as contemplated under the Code of Civil Procedure against which an appeal would lie under Order XLIII Rule 1 of CPC. Hence the appropriate remedy for the parties would be to file a revision petition. The Hon’ble Supreme Court has observed as follows: “Having found that the order dated 31.8.1996 under Order 22 complied with Requirements(ii) andwhat remains to be considered is whether it fulfils Requirement also so that it will answer the definition of decree in Section 2(2) of the Code. Requirement iii) is that the adjudication must determine the rights of the parties with regard to all or any of the matters in controversy in the suit. 21. The applicant in an application under Order 22 Rule 3 is not a party to the suit. An application under Order 22 Rule 3 is by a non party requesting the court to make him a party as the legal representative of the deceased plaintiff. Necessarily unless the application under Order 22 Rule 3 is allowed and the applicant is 6 to come on record as 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 in controversy the suit. determination of a collateral issue as to whether the applicant who is not a party should be to come on record as representative of the deceased. 22. Therefore an order dismissing an application under Order 22 Rule 3 after an enquiry under Rule 5 and dismissing the suit is not a decree. 23. As the order dated 31.8.1996 neither a “decree” appealabe under Section 96 of the Code nor an order appealable under Section 104 and Order 43 Rule 1 the remedy of the applicant under Order 22 Rule 3 is to file a revision. The High Court was therefore right in its view that the adjudication of the question 7 whether an applicant in an application under Order 22 Rule 3 was a legatee under a valid will executed by the deceased plaintiff in his favour was not a decree and therefore the remedy of the applicant was to file a revision” The learned counsels for the parties in the light of this decision submit in unison that the appellant can be permitted to convert this ‘Regular First Appeal’ into a ‘Revision Petition’. Therefore the appellant is permitted to convert this ‘Regular First Appeal’ into a ‘Revision Petition’. The learned counsel for the appellant shall take necessary steps in this regard within four weeks from today. For the statistical purposes the appeal stands disposed of. SD 

Summary: The time deciding the maintainability of the appeal in civil suit shall be decided solely on the provisions of CPC and the facts of the said case- High Court of Karnataka. In this case the appeal was disposed of after hearing the learned counsel for the parties by dictating orders in the open Court. The plaintiff, Smt. Parvathamma has filed the suit in O.S.No.168/2009 (originally numbered as O.S.No.151/2000) for declaration that she is the absolute owner of the land and for possession with other consequential relief of mandatory injunction. Smt.Parvathamma, who had examined herself as, has died during the pendency of the suit. The appellant, who asserts that she is the wife of, the brother of her husband had for leave to come on record as the legal representative. This case was decided in KALLAMMA VS PREMAMMA (REGULAR FIRST APPEAL NO. 11 OF 2012)by the single bench THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD  The civil Court has allowed this application and when this order is impugned before this Court in W.P.No.2097/2010, the order dated 22.12.2019 is quashed and IA is restored for reconsideration after necessary enquiry. The petitioner has examined herself and two other witnesses. The Counsel for the petitioner stated that on appreciation of the evidence on record, has rejected the application and the present appeal is filed calling in question the said order.  The Hon’ble Supreme Court in Mangluram Dewangan v. Surendra Singh and Others supra while considering the question whether an order of the trial Court rejecting an application filed under Order XII of the Code of Civil Procedure by a person claiming as legatee and consequentially dismissing the suit in the absence of any legal representative would be an appealable decree, has concluded that such order would not be a decree as contemplated under the Code of Civil Procedure against which an appeal would lie under Order XLIII Rule 1 of CPC. The counsel for the respondent stated an application under Order 22 Rule 3 is not a party to the suit. An application under Order 22 Rule 3 is by a non-party requesting the court to make him a party as the legal representative of the deceased plaintiff. Necessarily unless the application under Order 22 Rule 3 is 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. After noting the facts and arguments of both the parties the High Court of Karnataka , “right in its view that the adjudication of the question whether an applicant in an application under Order 22 Rule 3 was a legatee under a valid will executed by the deceased plaintiff in his favor, was not a decree and therefore, the remedy of the applicant was to file a revision” The learned counsels for the parties in the light of this decision submit in unison that the appellant can be permitted to convert this ‘Regular First Appeal’ into a ‘Revision Petition’ Therefore, the appellant is permitted to convert this ‘Regular First Appeal’ into a ‘Revision Petition’. The learned counsel for the appellant shall take necessary steps in this regard within four weeks from today. For the statistical purposes, the appeal stands disposed of”