M. Narsinga Rao (Died) by Lr and anr. Vs. Mukundlal Misra - Court Judgment

Excerpt:
- - 569. 5. replying to the above contention, the learned counsel for the petitioner submitted that a plain reading of order 22, rule 9 of the code would clearly shows that the present application is maintainable and the petitioner need not file an appeal. it is well settled that appeal is continuation of the suit. 10 and 11 is extracted as under for better appreciation: 10. in this regard, it is necessary to look into order 22, rule 9 of the code and the same is extracted as under for better appreciation:orderg. chandraiah, j.1. heard both the counsel.2. s.a.m.p. no. 2191 of 2005 is filed under order 22 rule 3 read with section 151 of code of civil procedure (for short 'the code') to permit the petitioner to come on record as the legal representative of the deceased appellant. s.a.m.p. no. 2192 of 2005 is filed under order 22 rule 9 read with section 151 of the code to set aside the abatement order dated 13-4-2004 and restore the second appeal to file.3. the learned counsel for the petitioner submitted that the deceased appellant is a bachelor and the petitioner is his adopted son under a registered adoption deed and as he was pursuing the education at different places in the state and subsequently engaged in a job at united states of america for sometime and thereafter came to india, he was not aware of the pendency of the suit or the appeal and after the death of the appellant on 26-2-1999 who is his father, he wanted to develop his properties at karimnagar and therefore searched for papers and he found papers relating to the second appeal and immediately approached the advocate by name sri venugopal and came to know that he did no attend the court when the case was listed and as a result the appeal was abated and in that process a delay of 361 days has occurred in filing the present application for setting aside the abatement and this court by order dated 14-7-2006 has condoned the delay. for these reasons, he sought for setting aside the abatement and permit the petitioner to come on record.4. on the other hand the learned counsel for the respondent submitted that the order of dismissing the appeal as abated amounts to judgment and decree and the petitioner has to approach the supreme court and this court has no jurisdiction to permit the petitioner to come on record. in support of his contention that order of dismissal on account of abatement amounts to a decree, he relied on the judgments of the madras high court reported in suppu nayakan v. perumal air 1917 mad. 285 and gopalaratnam v. lakshmikantam air (30) 1943 mad. 569.5. replying to the above contention, the learned counsel for the petitioner submitted that a plain reading of order 22, rule 9 of the code would clearly shows that the present application is maintainable and the petitioner need not file an appeal. referring to order 20 of the code, he contended that the judgment must contain reasons and as the present order is an order of dismissal on account of the death of the appellant, it does not amount to a judgment.6. the learned counsel for the respondent submitted that order 22 rule 9 of the code applies only to pending suits and not the appeals.7. in view of the above rival contentions, first it is necessary to find out whether the order of dismissing the appeal as abated, would amount to a decree. though the learned counsel for the respondent relied on the judgments of the madras high court referred to above, they are all the judgments which were delivered prior to c.p.c. (amendment) act, 104 of 1976 and hence they cannot be relied upon. it is necessary to look into the definition of decree under section 2(2) of the code. the same is extracted as under:decree means 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-(a) any adjudication from which an appeal lies as an appeal from an order, or(b) any order of dismissal for default.explanation.-a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. it is final when such adjudication completely disposes of the suit. it may be partly preliminary and partly final;8. from the above definition it is clear that there must be a conclusive adjudication of the rights of the parties with regard to all or any of the matters in controversy in the suit and such adjudication may be either preliminary or final. so the basic covenant of the definition of the decree in that there must be a conclusive adjudication. it is well settled that appeal is continuation of the suit. in the present case, the appeal is dismissed as the legal representatives of the deceased appellant were not brought on record and thereby a default is caused. in my considered view, it squarely falls under clause (b) of sub-section (2) of section 2 of the code. at the cost of repetition it is to be noticed that there is no adjudication. in the decision reported in munnety khan v. kaushilya devi : air1981all240 , a learned single judge of allahabad high court held that order of abatement is a simple order and does not adjudicate upon rights of parties and hence it does not amount to a decree. the relevant portion of the judgment at paragraph nos. 10 and 11 is extracted as under for better appreciation:10. but contended mr. k.b.l. gaur, who, as observed above, appeared on behalf of bhagwat saran and rishi kumar, who claimed to be the heirs of mrs. har peari devi deceased, that the second appeals in this court are not maintainable inasmuch as the impugned order is not a decree.11. having heard learned counsel for all the parties on this point, it does not appear to me that the preliminary objection raised by mr. gaur must prevail. mr. v.k. barman learned counsel for the defendant - appellant relied on brij jivan lal v. shim lal : air1950all57 , in this context. it was held by this court in that case that where one of the plaintiffs died during the pendency of the suit and no application was made within limitation to bring his heirs on the record and the court ordered on an application made on behalf of the contesting defendants that the suit had abated in its entirety on the ground that the right to sue did not survive to the remaining plaintiffs alone and in the result dismissed the suit, the order of abatement amounted to a decree. that is not the situation in the present case. firstly it was the defendant who had appealed against the decree passed by the trial court in favour of both the plaintiffs; secondly both the plaintiff-respondents had died before the impugned order was passed and further the impugned order proceeds on the basis that no application for substitution was made in respect of both the deceased plaintiffs-respondents. the impugned order is a simple order declaring the three appeals to have abated on the ground that no application for substitution has been made within limitation after the death of either of the two respondents. the impugned order does not adjudicate upon the rights of the parties in any manner. in my opinion it does not amount to a decree. (emphasis added)9. as already stated above there shall be an adjudication with regard to the rights of the parties in a lis and then only it falls within the definition of a 'decree' otherwise if there is no adjudication and the appeal is dismissed on account of default in bringing the legal representatives of the deceased appellant, it does not amount to a decree and as per section 2(9) 'judgment' means the statement given by the judge on the grounds of a decree or order. a reading of section 2(9) and order 20 of the code would indicate that 'judgment' means determination of the rights of the parties. so in the present case, there is no adjudication and determination of the rights of the parties and it is a simple order of abating the appeal on the ground of not bringing the legal representatives on record.10. in this regard, it is necessary to look into order 22, rule 9 of the code and the same is extracted as under for better appreciation:9. effect of abatement or dismissal.-(1) where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.(2) the plaintiff or the person claiming to be the legal representatives of the deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.11. so as per the above provision it is clear that if a suit abates or is dismissed under order 22, no fresh suit can be brought on the same cause of action. here it is to be conspicuously noted that the order of abatement or dismissal shall be under order 22, which deals with death, marriage and insolvency of parties. in the present case, the appeal was abated as no legal representative of the deceased appellant was brought on record within the stipulated period as prescribed under article 120 of the limitation act and, therefore, the appeal was abated and in such a case, as fresh suit is barred. as per sub-rule (2) the person claiming to be the legal representative of the deceased may apply for setting aside the order of abatement by showing sufficient cause.12. the next question that arises for consideration is whether the petitioner who is alleged to be the adopted son of the appellant could show sufficient cause for condoning the delay. the case of the petitioner, as already stated above is that he was pursuing education at different places and thereafter was engaged in employment for sometime at united states of america and subsequently in india and thus could not know about the us and only after the death of his father, he came to know about the pendency of the second appeal. i am of the considered view that this forms a sufficient cause. further this court by order dated 14-7-2006 in s.a.m.p. no. 2190/2005 has already condoned the delay of 361 days in filing the appeal on the very same reasons and the said order has become final, as having not been appealed. hence, the present petitions for setting aside the order of abatement and permit the petitioner to come on record as the legal representative of the deceased appellant, have to be allowed. though the learned counsel for the respondent disputed that the petitioner is not legal representative of the deceased, the learned counsel for the petitioner produced copy of an adoption deed and also sought to point out the finding of the courts below with regard to the relation of the petitioner with the deceased appellant. in view of the same, i do not propose to go into that aspect and it is made clear that the petitioner is only permitted to prosecute the appeal.13. for the foregoing reasons, both the petitions are allowed with costs and the order dated 14-4-2004 dismissing the appeal as abated is set aside and the appeal is restored to file and the petitioner is permitted to come on record as the legal representative of the deceased appellant. registry shall post the second appeal after two weeks for hearing.

Judgment:
ORDER

G. Chandraiah, J.

1. Heard both the Counsel.

2. S.A.M.P. No. 2191 of 2005 is filed under Order 22 Rule 3 read with Section 151 of Code of Civil Procedure (for short 'the Code') to permit the petitioner to come on record as the legal representative of the deceased appellant. S.A.M.P. No. 2192 of 2005 is filed under Order 22 Rule 9 read with Section 151 of the Code to set aside the abatement order dated 13-4-2004 and restore the second appeal to file.

3. The learned Counsel for the petitioner submitted that the deceased appellant is a bachelor and the petitioner is his adopted son under a registered adoption deed and as he was pursuing the education at different places in the State and subsequently engaged in a job at United States of America for sometime and thereafter came to India, he was not aware of the pendency of the suit or the appeal and after the death of the appellant on 26-2-1999 who is his father, he wanted to develop his properties at Karimnagar and therefore searched for papers and he found papers relating to the second appeal and immediately approached the Advocate by name Sri Venugopal and came to know that he did no attend the Court when the case was listed and as a result the appeal was abated and in that process a delay of 361 days has occurred in filing the present application for setting aside the abatement and this Court by order dated 14-7-2006 has condoned the delay. For these reasons, he sought for setting aside the abatement and permit the petitioner to come on record.

4. On the other hand the learned Counsel for the respondent submitted that the order of dismissing the appeal as abated amounts to judgment and decree and the petitioner has to approach the Supreme Court and this Court has no jurisdiction to permit the petitioner to come on record. In support of his contention that order of dismissal on account of abatement amounts to a decree, he relied on the judgments of the Madras High Court reported in Suppu Nayakan v. Perumal AIR 1917 Mad. 285 and Gopalaratnam v. Lakshmikantam AIR (30) 1943 Mad. 569.

5. Replying to the above contention, the learned Counsel for the petitioner submitted that a plain reading of Order 22, Rule 9 of the Code would clearly shows that the present application is maintainable and the petitioner need not file an appeal. Referring to Order 20 of the Code, he contended that the judgment must contain reasons and as the present order is an order of dismissal on account of the death of the appellant, it does not amount to a judgment.

6. The learned Counsel for the respondent submitted that Order 22 Rule 9 of the Code applies only to pending suits and not the appeals.

7. In view of the above rival contentions, first it is necessary to find out whether the order of dismissing the appeal as abated, would amount to a decree. Though the learned Counsel for the respondent relied on the judgments of the Madras High Court referred to above, they are all the judgments which were delivered prior to C.P.C. (Amendment) Act, 104 of 1976 and hence they cannot be relied upon. It is necessary to look into the definition of decree under Section 2(2) of the Code. The same is extracted as under:

Decree means 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-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

8. From the above definition it is clear that there must be a conclusive adjudication of the rights of the parties with regard to all or any of the matters in controversy in the suit and such adjudication may be either preliminary or final. So the basic covenant of the definition of the decree in that there must be a conclusive adjudication. It is well settled that appeal is continuation of the suit. In the present case, the appeal is dismissed as the legal representatives of the deceased appellant were not brought on record and thereby a default is caused. In my considered view, it squarely falls under Clause (b) of Sub-section (2) of Section 2 of the Code. At the cost of repetition it is to be noticed that there is no adjudication. In the decision reported in Munnety Khan v. Kaushilya Devi : AIR1981All240 , a learned Single Judge of Allahabad High Court held that order of abatement is a simple order and does not adjudicate upon rights of parties and hence it does not amount to a decree. The relevant portion of the judgment at Paragraph Nos. 10 and 11 is extracted as under for better appreciation:

10. But contended Mr. K.B.L. Gaur, who, as observed above, appeared on behalf of Bhagwat Saran and Rishi Kumar, who claimed to be the heirs of Mrs. Har Peari Devi deceased, that the second appeals in this Court are not maintainable inasmuch as the impugned order is not a decree.

11. Having heard learned Counsel for all the parties on this point, it does not appear to me that the preliminary objection raised by Mr. Gaur must prevail. Mr. V.K. Barman learned Counsel for the defendant - appellant relied on Brij Jivan Lal v. Shim Lal : AIR1950All57 , in this context. It was held by this Court in that case that where one of the plaintiffs died during the pendency of the suit and no application was made within limitation to bring his heirs on the record and the Court ordered on an application made on behalf of the contesting defendants that the suit had abated in its entirety on the ground that the right to sue did not survive to the remaining plaintiffs alone and in the result dismissed the suit, the order of abatement amounted to a decree. That is not the situation in the present case. Firstly it was the defendant who had appealed against the decree passed by the trial Court in favour of both the plaintiffs; secondly both the plaintiff-respondents had died before the impugned order was passed and further the impugned order proceeds on the basis that no application for substitution was made in respect of both the deceased plaintiffs-respondents. The impugned order is a simple order declaring the three appeals to have abated on the ground that no application for substitution has been made within limitation after the death of either of the two respondents. The impugned order does not adjudicate upon the rights of the parties in any manner. In my opinion it does not amount to a decree.

(Emphasis added)

9. As already stated above there shall be an adjudication with regard to the rights of the parties in a lis and then only it falls within the definition of a 'decree' otherwise if there is no adjudication and the appeal is dismissed on account of default in bringing the legal representatives of the deceased appellant, it does not amount to a decree and as per Section 2(9) 'judgment' means the statement given by the Judge on the grounds of a decree or order. A reading of Section 2(9) and Order 20 of the Code would indicate that 'judgment' means determination of the rights of the parties. So in the present case, there is no adjudication and determination of the rights of the parties and it is a simple order of abating the appeal on the ground of not bringing the legal representatives on record.

10. In this regard, it is necessary to look into Order 22, Rule 9 of the Code and the same is extracted as under for better appreciation:

9. Effect of abatement or dismissal.-(1) Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representatives of the deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

11. So as per the above provision it is clear that if a suit abates or is dismissed under Order 22, no fresh suit can be brought on the same cause of action. Here it is to be conspicuously noted that the order of abatement or dismissal shall be under Order 22, which deals with death, marriage and insolvency of parties. In the present case, the appeal was abated as no legal representative of the deceased appellant was brought on record within the stipulated period as prescribed under Article 120 of the Limitation Act and, therefore, the appeal was abated and in such a case, as fresh suit is barred. As per Sub-rule (2) the person claiming to be the legal representative of the deceased may apply for setting aside the order of abatement by showing sufficient cause.

12. The next question that arises for consideration is whether the petitioner who is alleged to be the adopted son of the appellant could show sufficient cause for condoning the delay. The case of the petitioner, as already stated above is that he was pursuing education at different places and thereafter was engaged in employment for sometime at United States of America and subsequently in India and thus could not know about the Us and only after the death of his father, he came to know about the pendency of the second appeal. I am of the considered view that this forms a sufficient cause. Further this Court by order dated 14-7-2006 in S.A.M.P. No. 2190/2005 has already condoned the delay of 361 days in filing the appeal on the very same reasons and the said order has become final, as having not been appealed. Hence, the present petitions for setting aside the order of abatement and permit the petitioner to come on record as the legal representative of the deceased appellant, have to be allowed. Though the learned Counsel for the respondent disputed that the petitioner is not legal representative of the deceased, the learned Counsel for the petitioner produced copy of an adoption deed and also sought to point out the finding of the Courts below with regard to the relation of the petitioner with the deceased appellant. In view of the same, I do not propose to go into that aspect and it is made clear that the petitioner is only permitted to prosecute the appeal.

13. For the foregoing reasons, both the petitions are allowed with costs and the order dated 14-4-2004 dismissing the appeal as abated is set aside and the appeal is restored to file and the petitioner is permitted to come on record as the legal representative of the deceased appellant. Registry shall post the second appeal after two weeks for hearing.