Under provisions of Order XLIII Rule 1(k) of the Code, an appeal
is maintainable against an order refusing to set aside the abatement or
dismissal of a suit. In Madan Naik (supra) a somewhat identical situation
was considered by the Honourable Supreme Court and in paragraph 8
thereof it was held as under :
“ 8. …. 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 the first appeal, only
course open is to move the Court for setting aside abatement. An order
under Order 22, Rule 9(2) C.P.C. 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) C.P.C.
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 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.”
In view of aforesaid, it is clear that once such application filed
under provisions of Order XXII Rule 9 of the Code is rejected, the remedy of
an appeal under provisions of Order XLIII Rule 1(k) of the Code would be
available.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.184 OF 2014
Mahadeo s/o Champatrao Karluke
vs
State of Maharashtra
CORAM : A.S.CHANDURKAR, J.
DATE : April 25, 2016
Citation: 2016(3) ALLMR 825
This appeal filed under Section 100 of the Code of Civil
Procedure, 1908 (for short, the Code) is by the original plaintiffs who are
aggrieved by the order passed by the Appellate Court rejecting the
application that was filed for bringing on record the legal representatives of
respondent No.4. The appellants are also aggrieved by the order passed
below Exhibit1 by the Appellate Court disposing of the said appeal as having
abated.
The appellantsoriginal plaintiffs had filed R.C.S. No.160 of 2003
for cancellation of sale deed dated 20/04/2003 along with a prayer for
permanent injunction. The trial Court dismissed the suit by judgment dated
19/04/2004. Being aggrieved, the plaintiffs filed Regular Civil Appeal
No.160 of 2010. During pendency of said appeal, the appellants learnt on
19/10/2013 the respondent No.4 had expired on 12/08/2011. Hence, an
application for bringing on record the legal representatives came to be filed.
On 17/01/2014, the Appellate Court rejected said application on the ground
that simlicitor application for bringing on record the legal representatives of
respondent No.4 without any prayer for condoning delay was not
maintainable. It therefore dismissed the said application. Thereafter a
consequential order came to be passed that the appeal stood abated as the
legal representatives of respondent No.4 were not brought on record. Being
aggrieved by disposal of the appeal as having abated, the original plaintiffs
have filed the present second appeal.
2. Shri S. K. Bhoyar, the learned counsel for respondent Nos.2 and 3
at the outset raised a preliminary objection to the maintainability of appeal
on the ground that the Appellate Court had refused to set aside the
abatement of appeal against respondent No.4. Against said order, it was
submitted that the remedy of appeal under provisions of Order XLIII Rule
1(k) of the Code was available. The learned counsel by placing reliance on
the judgment of Honourable Supreme Court in AIR 1983 Supreme Court
676 Madan Naik (dead) by Lrs) and ors v. Mst. Hansubala Devi and ors.,
submitted that disposal of an appeal as having abated did not result in any
decree being passed and therefore a second appeal against such adjudication
was not maintainable.
3. Shri S. V. Sohoni, the learned counsel for the appellants submitted
that as the appeal was disposed of as having abated, the only remedy
available was by way of filing an appeal under Section 100 of the Code. He
submitted that as the Appellate Court did not condone the delay in bringing
on record the legal representatives of respondent No.4 and rejected said
application, the present appeal was maintainable. The learned counsel
placed reliance on the judgment of Honourable Supreme Court in 2005 (1)
MhLJ Shyam Sunder Sarma v. Pannalal Jaiswal and ors. to urge that
against an order passed by the Appellate Court refusing to condone delay,
the remedy by way of second appeal was available.
4. Having heard the respective counsel for the parties, the following
question requires determination :
“ When the Appellate Court rejects an application for bringing on
record the legal representatives of a deceased respondent and
thereafter consequently disposes the appeal as having abated,
whether a second appeal under Section 100 of the Code would be
maintainable ?”
Certain facts are not in dispute. During the pendency of Regular
Civil Appeal No.160 of 2010, the appellants learnt about the death of
respondent No.4 and hence an application for bringing on record the legal
representatives was filed on 13/11/2013 under the provisions of Order XXII
Rule 4 of the Code. This application came to be rejected by the Appellate
Court by order dated 17/01/2014. The prayers made by the appellants
included a prayer for setting aside the abatement and for bringing on record
the legal representatives. The respondent No.4 had expired on 12/08/2011
and therefore as his legal representatives were not brought on record within
a period of 90 days, the proceedings abated against the said respondent. In
effect the application below Exhibit16 was for bringing on record the legal
representatives of respondent No.4 and for setting aside the abatement of the
appeal.
At this stage it is necessary to refer to the provisions of Order XXII
Rule 11 of the Code. As per said provision, while applying Order XXII to
appeals, a respondent in an appeal would stand included. In view thereof
provisions of Order XXII of the Code would also apply to an appeal.
Reference in this regard can be made to the decision of the Nagpur High
Court in Ganpat vs. Shri Maruti Sansthan, AIR 1952 Nagpur 181. Hence,
the application below Exhibit16 moved by the appellants would have to be
treated as one filed under provisions of Order XXII Rule 4 read with
provisions of Order XXII Rule 9(2) of the Code.
5. Under provisions of Order XLIII Rule 1(k) of the Code, an appeal
is maintainable against an order refusing to set aside the abatement or
dismissal of a suit. In Madan Naik (supra) a somewhat identical situation
was considered by the Honourable Supreme Court and in paragraph 8
thereof it was held as under :
“ 8. …. 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 the first appeal, only
course open is to move the Court for setting aside abatement. An order
under Order 22, Rule 9(2) C.P.C. 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) C.P.C.
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 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.”
In view of aforesaid, it is clear that once such application filed
under provisions of Order XXII Rule 9 of the Code is rejected, the remedy of
an appeal under provisions of Order XLIII Rule 1(k) of the Code would be
available.
The judgment of the Honourable Supreme Court in Shyam
Sunder Sarma (supra) which was relied upon by the learned counsel for the
appellants is with regard to the remedy available when the delay in filing an
appeal under Section 96 of the Code is not condoned. In paragraph 10 of
aforesaid judgment it has been observed thus :
“10. …. An appeal registered under rule 9 of Order 41 of the Code had to
be disposed of according to law and a dismissal of an appeal for the reason
of delay in its presentation, after the dismissal of an application for
condoning the delay, is in substance and effect a confirmation of the decree
appealed against. Thus, the position that emerges on a survey of the
authorities is that an appeal filed along with an application for condoning
the delay in filing that appeal when dismissed on the refusal to condone the
delay is nevertheless a decision in the appeal.”
6. From the aforesaid, it is clear that if the delay in filing the appeal
is not condoned, a second appeal under Section 100 of the Code would be
maintainable. However, when the Appellate Court refuses to set aside the
abatement under provisions of Order XXII Rule 9(2) of the Code and rejects
such application, remedy under provisions of Order XLIII Rule 1(k) of the
Code would be available.
7. In view of aforesaid, it is held that against the order passed by the
Appellate Court below Exhibit16 dated 17/01/2014 as well as the order
passed below Exhibit1 on the same day, the remedy of appeal under
provisions of Order XLIII Rule 1(k) of the Code would be available to the
appellants. In that view of the matter, the preliminary objection raised on
behalf of respondent Nos.2 and 3 is upheld. It is held that the second appeal
against aforesaid order is not maintainable. It is open for the appellants to
avail the appropriate remedy under provisions of Order XLIII Rule 1(k) of the
Code. It is made clear that this Court has not examined the correctness of
the impugned orders. Order accordingly. No costs.
JUDGE
Print Page
is maintainable against an order refusing to set aside the abatement or
dismissal of a suit. In Madan Naik (supra) a somewhat identical situation
was considered by the Honourable Supreme Court and in paragraph 8
thereof it was held as under :
“ 8. …. 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 the first appeal, only
course open is to move the Court for setting aside abatement. An order
under Order 22, Rule 9(2) C.P.C. 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) C.P.C.
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 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.”
In view of aforesaid, it is clear that once such application filed
under provisions of Order XXII Rule 9 of the Code is rejected, the remedy of
an appeal under provisions of Order XLIII Rule 1(k) of the Code would be
available.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.184 OF 2014
Mahadeo s/o Champatrao Karluke
vs
State of Maharashtra
CORAM : A.S.CHANDURKAR, J.
DATE : April 25, 2016
Citation: 2016(3) ALLMR 825
This appeal filed under Section 100 of the Code of Civil
Procedure, 1908 (for short, the Code) is by the original plaintiffs who are
aggrieved by the order passed by the Appellate Court rejecting the
application that was filed for bringing on record the legal representatives of
respondent No.4. The appellants are also aggrieved by the order passed
below Exhibit1 by the Appellate Court disposing of the said appeal as having
abated.
The appellantsoriginal plaintiffs had filed R.C.S. No.160 of 2003
for cancellation of sale deed dated 20/04/2003 along with a prayer for
permanent injunction. The trial Court dismissed the suit by judgment dated
19/04/2004. Being aggrieved, the plaintiffs filed Regular Civil Appeal
No.160 of 2010. During pendency of said appeal, the appellants learnt on
19/10/2013 the respondent No.4 had expired on 12/08/2011. Hence, an
application for bringing on record the legal representatives came to be filed.
On 17/01/2014, the Appellate Court rejected said application on the ground
that simlicitor application for bringing on record the legal representatives of
respondent No.4 without any prayer for condoning delay was not
maintainable. It therefore dismissed the said application. Thereafter a
consequential order came to be passed that the appeal stood abated as the
legal representatives of respondent No.4 were not brought on record. Being
aggrieved by disposal of the appeal as having abated, the original plaintiffs
have filed the present second appeal.
2. Shri S. K. Bhoyar, the learned counsel for respondent Nos.2 and 3
at the outset raised a preliminary objection to the maintainability of appeal
on the ground that the Appellate Court had refused to set aside the
abatement of appeal against respondent No.4. Against said order, it was
submitted that the remedy of appeal under provisions of Order XLIII Rule
1(k) of the Code was available. The learned counsel by placing reliance on
the judgment of Honourable Supreme Court in AIR 1983 Supreme Court
676 Madan Naik (dead) by Lrs) and ors v. Mst. Hansubala Devi and ors.,
submitted that disposal of an appeal as having abated did not result in any
decree being passed and therefore a second appeal against such adjudication
was not maintainable.
3. Shri S. V. Sohoni, the learned counsel for the appellants submitted
that as the appeal was disposed of as having abated, the only remedy
available was by way of filing an appeal under Section 100 of the Code. He
submitted that as the Appellate Court did not condone the delay in bringing
on record the legal representatives of respondent No.4 and rejected said
application, the present appeal was maintainable. The learned counsel
placed reliance on the judgment of Honourable Supreme Court in 2005 (1)
MhLJ Shyam Sunder Sarma v. Pannalal Jaiswal and ors. to urge that
against an order passed by the Appellate Court refusing to condone delay,
the remedy by way of second appeal was available.
4. Having heard the respective counsel for the parties, the following
question requires determination :
“ When the Appellate Court rejects an application for bringing on
record the legal representatives of a deceased respondent and
thereafter consequently disposes the appeal as having abated,
whether a second appeal under Section 100 of the Code would be
maintainable ?”
Certain facts are not in dispute. During the pendency of Regular
Civil Appeal No.160 of 2010, the appellants learnt about the death of
respondent No.4 and hence an application for bringing on record the legal
representatives was filed on 13/11/2013 under the provisions of Order XXII
Rule 4 of the Code. This application came to be rejected by the Appellate
Court by order dated 17/01/2014. The prayers made by the appellants
included a prayer for setting aside the abatement and for bringing on record
the legal representatives. The respondent No.4 had expired on 12/08/2011
and therefore as his legal representatives were not brought on record within
a period of 90 days, the proceedings abated against the said respondent. In
effect the application below Exhibit16 was for bringing on record the legal
representatives of respondent No.4 and for setting aside the abatement of the
appeal.
At this stage it is necessary to refer to the provisions of Order XXII
Rule 11 of the Code. As per said provision, while applying Order XXII to
appeals, a respondent in an appeal would stand included. In view thereof
provisions of Order XXII of the Code would also apply to an appeal.
Reference in this regard can be made to the decision of the Nagpur High
Court in Ganpat vs. Shri Maruti Sansthan, AIR 1952 Nagpur 181. Hence,
the application below Exhibit16 moved by the appellants would have to be
treated as one filed under provisions of Order XXII Rule 4 read with
provisions of Order XXII Rule 9(2) of the Code.
5. Under provisions of Order XLIII Rule 1(k) of the Code, an appeal
is maintainable against an order refusing to set aside the abatement or
dismissal of a suit. In Madan Naik (supra) a somewhat identical situation
was considered by the Honourable Supreme Court and in paragraph 8
thereof it was held as under :
“ 8. …. 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 the first appeal, only
course open is to move the Court for setting aside abatement. An order
under Order 22, Rule 9(2) C.P.C. 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) C.P.C.
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 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.”
In view of aforesaid, it is clear that once such application filed
under provisions of Order XXII Rule 9 of the Code is rejected, the remedy of
an appeal under provisions of Order XLIII Rule 1(k) of the Code would be
available.
The judgment of the Honourable Supreme Court in Shyam
Sunder Sarma (supra) which was relied upon by the learned counsel for the
appellants is with regard to the remedy available when the delay in filing an
appeal under Section 96 of the Code is not condoned. In paragraph 10 of
aforesaid judgment it has been observed thus :
“10. …. An appeal registered under rule 9 of Order 41 of the Code had to
be disposed of according to law and a dismissal of an appeal for the reason
of delay in its presentation, after the dismissal of an application for
condoning the delay, is in substance and effect a confirmation of the decree
appealed against. Thus, the position that emerges on a survey of the
authorities is that an appeal filed along with an application for condoning
the delay in filing that appeal when dismissed on the refusal to condone the
delay is nevertheless a decision in the appeal.”
6. From the aforesaid, it is clear that if the delay in filing the appeal
is not condoned, a second appeal under Section 100 of the Code would be
maintainable. However, when the Appellate Court refuses to set aside the
abatement under provisions of Order XXII Rule 9(2) of the Code and rejects
such application, remedy under provisions of Order XLIII Rule 1(k) of the
Code would be available.
7. In view of aforesaid, it is held that against the order passed by the
Appellate Court below Exhibit16 dated 17/01/2014 as well as the order
passed below Exhibit1 on the same day, the remedy of appeal under
provisions of Order XLIII Rule 1(k) of the Code would be available to the
appellants. In that view of the matter, the preliminary objection raised on
behalf of respondent Nos.2 and 3 is upheld. It is held that the second appeal
against aforesaid order is not maintainable. It is open for the appellants to
avail the appropriate remedy under provisions of Order XLIII Rule 1(k) of the
Code. It is made clear that this Court has not examined the correctness of
the impugned orders. Order accordingly. No costs.
JUDGE
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