Mangluram vs Surredder Singh & Ors

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4923 OF 2011

[Arising out of SLP [C] No.15113 of 2008]

Mangluram Dewangan ... Appellant

Vs.

Surendra Singh & Ors. ... Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted.

2. One Prannath filed a suit against the respondents for declaration,

possession and damages on 4.8.1989 in regard to an immovable property.

Prannath died on 12.11.1994 during the pendency of the suit. The appellant

filed an application under Order 22 Rule 3 of the Code of Civil Procedure

(`Code' for short) on 27.1.1995 to be added and substituted as the legal

representative of Prannath, claiming that he was the sole legatee under the

registered will dated 10.10.1994 executed by Prannath. The said application

was contested by the respondents-defendants. They denied the allegation

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that deceased plaintiff Prannath had executed any will in favour of the

appellant. They contended that the appellant was not the legal heir nor

legatee of Prannath and therefore not entitled to be added as a party, as the

legal representative of the deceased plaintiff. In view of the contest to the

application, the appellant examined one Balwant who was an attesting

witness to the will. After considering the documentary and oral evidence, the

trial court (IV Civil Judge, Class II, Bilaspur) made an order dated

31.8.1996, holding that there was no acceptable evidence to prove the will

and therefore the appellant could not be held to be the legal representative of

the plaintiff. The trial court held that the application by the appellant under

Order 22 Rule 3 of the Code could not be entertained or accepted and

consequently in the absence of any legal heir of the plaintiff dismissed the

suit.

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

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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"

under section 2(2) of the Code. The appellate court therefore set aside the

order dated 31.8.1996 passed by the trial court, permitted the appellant to be

brought on record and continue the suit as legal representative of the

plaintiff and remanded the suit to trial court under Order 41 Rule 23 of the

Code for deciding the matter on merits.

3. Respondents 1 and 2 filed a miscellaneous appeal before the High

Court, under Order 43 Rule 1(u) of the Code against the said appellate

judgment. A learned Single Judge of the Chhattisgarh High Court, by the

impugned order dated 15.4.2008 allowed the said appeal and set aside the

order dated 28.1.1998 passed by the appellate court and restored the order

dated 31.8.1996 passed by the trial court. The High Court held that the order

dated 31.8.1996 of the trial court did not amount to a decree and therefore

the appeal by the appellant before the appellate court was not maintainable.

The High Court held that an order can be a "decree" if it conclusively

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determined the rights of parties, with regard to all or any of the matters in

controversy in the suit. The question whether Prannath executed a will in

favour of appellant and thus appellant was a legal representative of Prannath

was not an issue in controversy in the suit, but arose incidentally for

determination in view of the application of appellant for being brought on

record as the legal representative of Prannath. An order on such an

application did not decide all or any of the matters in controversy in the suit

and not a `decree' as defined under Order 2(2), and therefore, only a revision

would be a remedy against such an order and not an appeal. The High Court

after holding that the appeal was not maintainable also considered the matter

on merits and held that the trial court was justified in dismissing the

application under Order 22 Rule 3 of the Code by holding that the will was

not proved.

4. The said order of the High Court is challenged in this appeal by

special leave. The following questions arise for consideration on the

contentions urged :

(i) Whether an order of the trial court rejecting an application filed under

Order 22 Rule 3 of the Code, by a person claiming to be the legatee under

the will of the plaintiff and consequently dismissing the suit in the absence

of any legal heir, is an appealable decree?

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(ii) Whether the High Court was justified in upholding the decision of the

trial court that the will was not proved and rejecting the application under

Order 22 Rule 3 of the Code?

Re : Question (i)

5. Order 22 deals with death of parties. Rules 1, 3, 5 and 9 of order 22 of

the Code have a bearing on the issue and relevant portions thereof are

extracted below :

"1. No abatement by party's death if right to sue survives.--The death

of a plaintiff or defendant shall not cause the suit to abate if the right to

sue survives.

3. Procedure in case of death of one of several plaintiffs or of sole

plaintiff.--(1) Where one of two or more plaintiffs dies and the right to

sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole

plaintiff or sole surviving plaintiff dies and the right to the sue survives,

the Court, on an application made in that behalf, shall cause the legal

representative of the deceased plaintiff to be made a party and shall

proceed with the suit.

(2) Where within the time limited by law no application is made under

sub-rule (1) the suit shall abate so far as the deceased plaintiff is

concerned, and, on the application of the defendant, the Court may award

to him the costs which he may have incurred in defending the suit, to be

recovered from the estate of the deceased plaintiff.

5. Determination of question as to legal representative.--Where a

question arises as to whether any person is or is not the legal

representative of a deceased plaintiff or a deceased defendant, such

question shall be determined by the Court: x x x x x

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 representative of a

deceased plaintiff or the assignee or the receiver in the case of an insolvent

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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".

x x x x x

(emphasis supplied)

A combined reading of the several provisions of Order 22 of the Code makes

the following position clear:

(a) When the sole plaintiff dies and the right to sue survives, on an

application made in that behalf, the court shall cause the legal representative

of the deceased plaintiff to be brought on record and proceed with the suit.

(b) If the court holds that the right to sue does not survive on the death of

the plaintiff, the suit will abate under Rule 1 of Order 22 of the Code.

(c) Even where the right to sue survives, if no application is made for

making the legal representative a party to the suit, within the time limited by

law (that is a period of 90 days from the date of death of the plaintiff

prescribed for making an application to make the legal representative a party

under Article 120 of the Limitation Act, 1963), the suit abates, as per Rule

3(2) of Order 22 of the Code.

(d) Abatement occurs as a legal consequence of (i) court holding that the

right to sue does not survive; or (ii) no application being made by any legal

representative of the deceased plaintiff to come on record and continue the

suit. Abatement is not dependant upon any formal order of the court that the

suit has abated.

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(e) Even though a formal order declaring the abatement is not necessary

when the suit abates, as the proceedings in the suit are likely to linger and

will not be closed without a formal order of the court, the court is usually to

make an order recording that the suit has abated, or dismiss the suit by

reason of abatement under Order 22 of the Code.

(f) Where a suit abates or where the suit is dismissed, any person

claiming to be the legal representative of the deceased plaintiff may apply

for setting aside the abatement or dismissal of the suit under Order 22 Rule 9

(2) of the Code. If sufficient cause is shown, the court will set aside the

abatement or dismissal. If however such application is dismissed, the order

dismissing such an application is open to challenge in an appeal under Order

43 Rule 1(k) of the Code.

(g) A person claiming to be the legal representative cannot make an

application under rule 9(2) of order 22 for setting aside the abatement or

dismissal, if he had already applied under order 22 Rule 3 for being brought

on record within time and his application had been dismissed after an

enquiry under Rule 5 of Order 22, on the ground that he is not the legal

representative.

6. We may next consider the remedies available to an applicant whose

application under Order 22 Rule 3 of the Code, for being added as a party to

the suit as legal representative of the deceased plaintiff, has been rejected.

The normal remedies available under the Code whenever a civil court makes

an order under the Code are as under:

8 (i) Where the order is a `decree' as defined under section 2(2) of the

Code, an appeal would lie under section 96 of the Code (with a

provision for a second appeal under section 100 of the Code).

(ii) When the order is not a `decree', but is an order which is one

among those enumerated in section 104 or Rule 1 of Order 43, an

appeal would lie under section 104 or under section 104 read with

order 43, Rule 1 of the Code (without any provision for a second

appeal).

(iii) If the order is neither a `decree', nor an appealable `order'

enumerated in section 104 or Order 43 Rule 1, a revision would lie

under section 115 of the Code, if it satisfies the requirements of

that section.

When a party is aggrieved by any decree or order, he can also seek review as

provided in Section 114 subject to fulfillment of the conditions contained in

that section and Order 47 Rule 1 of the Code. Be that as it may. The

difference between a `decree' appealable under section 96 and an `order'

appealable under section 104 is that a second appeal is available in respect of

decrees in first appeals under section 96, whereas no further appeal lies from

an order in an appeal under section 104 and Order 43, Rule 1 of the Code.

The question for consideration in this case is whether the order dated

31.8.1996 of the trial court dismissing an application under Order 22 Rule 3

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and consequently dismissing the suit is an order amenable to the remedy of

appeal or revision. If the remedy is by way of appeal, the incidental question

would be whether it is under section 96, or under section 104 read with

Order 43, Rule 1 of the Code.

7. Section 96 of the Code provides that save where otherwise expressly

provided in the body of the Code or by any other law for the time

being in force, an appeal shall lie from every decree passed by any

court exercising original jurisdiction to the court authorized to hear

appeals from the decision of such court. The word `decree' is defined

under section 2(2) of the Code thus:

"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;"

1 A reading of the definition of decree in Section 2(2) shows that the

following essential requirements should be fulfilled if an order should be

treated as a `decree' :

(i) there should be an adjudication in a suit;

(ii) the adjudication should result in a formal expression which is

conclusive so far as the court expressing it;

(iii) the adjudication should determine the rights of parties with regard

to all or any of the matters in controversy in the suit; and

(iv) the adjudication should be one from which an appeal does not lie

as an appeal from an order (under section 104 and order 43

Rule 1 of the Code) nor should it be an order dismissing the suit

for default.

(emphasis supplied)

8. There is no dispute that the order dated 31.8.1996 made on the

application under Rules 3 and 5 of Order 22 of the trial court satisfies

requirements (i) and (ii). The question is whether it satisfies the third and

fourth requirements. We may first consider the fourth requirement. No

appeal is provided against an order under Order 22 Rule 3 and 5 of the Code,

either under section 104 or Order 43 Rule 1 of the Code. Clause (k) of Rule

1 of Order 43 of the Code however provides that an appeal shall lie under

Section 104 of the Code, from an order under Rule 9 of Order 22 refusing to

set aside the abatement or dismissal of a suit. Sub-Rule (2) of Rule 9 of

Order 22 permits a legal representative of a deceased plaintiff to apply for an

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order to set aside the abatement or dismissal under Order 22 of the Code. An

order under Rule 9(2) refusing to set aside an abatement or dismissal of the

suit is contemplated, only where there is abatement or dismissal under order

22 and an application has been made by a legal representative to set aside

such abatement or dismissal. But where a person claiming to be the legal

representative had already filed an application under Order 22 Rule 3 within

the period of limitation, and such application has been dismissed on the

ground that he is not a legal representative, there is no question of such

applicant under Order 22 Rule 3, filing an application under Rule 9(2) for

setting aside the abatement or dismissal. An application under Rule 9(2) can

be filed only if there is abatement or dismissal under Order 22 on account of

no application being made. Therefore when an order is passed under Order

22 Rules 3 and 5 of the Code, dismissing an application by a person

claiming to be a legal representative on the ground that he is not a legal

representative and consequently dismissing the suit, it will not be a dismissal

under Rule 9(2) of Order 22 which is amenable for an appeal under section

104 read with Order 43 Rule 1(k) of the Code. It therefore follows that an

order under Order 22 Rule 3 and 5 is not appealable under section 104 or

Order 43 Rule 1 of the Code.

1 9. Having found that the order under Order dated 31.8.1996 complied

with requirements (i), (ii) and (iv), what remains to be considered is whether

it fulfils requirement (iii) 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. 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 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.

1 10. As the order dated 31.8.1996 is neither a `decree' appealable 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 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 not a decree and therefore the remedy of the

applicant was to file a revision.

11. The appellant submitted that even if the rejection of an application

under Order 22 Rule 3 after an enquiry under Rule 5, may not amount to a

decree, the consequential dismissal of the suit on the ground that there is no

legal representative, is a denial of the substantive rights claimed by the

plaintiff against the defendant in the suit. This contention is clearly flawed.

If the court orders that suit has abated or dismissed the suit as having abated,

as a consequence of rejection of an application under Order 22 Rule 3 of the

Code, as noticed above, there is no determination of rights of parties with

regard to any of the matters in controversy in the suit and therefore the order

is not a decree. But if an order declares that the suit has abated, or dismisses

a suit not as a consequence of legal representatives filing any application to

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come on record, but in view of a finding that right to sue does not survive on

the death of sole plaintiff, there is an adjudication determining the rights of

parties in regard to all or any of the matters in controversy in the suit, and

such order will be a decree. But that is not the case here. Similar contention

raised before various High Courts have repeatedly negatived by different

High Courts. It is sufficient to refer to two of them with which we

respectfully agree.

12. A full Bench decision of the Lahore High Court in Niranjan Nath v.

Afzal Hussain - AIR 1916 Lahore 245 held as follows:

"After examining the matter carefully we consider that if a court passes a

purely formal order recognizing the abatement, which is a fait accompli,

such an order, though virtually disposing of the suit, does not adjudicate

upon any rights, and cannot be treated as a decree. An order of this nature,

as observed already, merely records an abatement, which has already taken

place by reason of the lapse of six months*, after the death of the plaintiff,

and does not contain any decision arrived at by the court. In a case of this

kind Order 22, Rule 9 allows the legal representative to make an application

for the revival of the suit, and the only question the court is thereupon

required to determine is whether the applicant was prevented by any

sufficient cause from continuing his suit, and if the decision is in the

negative, the aggrieved party is entitled to prefer an appeal against that order

under Order 43 Rule 1(k). The decision of the appellate court is, however,

made final and a second appeal is not competent.

The language of Order 22, Rule 9(2) when carefully examined, leads us to

the conclusion that it is confined to cases in which the abatement takes place

by reason of an application not having been made within the time permitted

by law to implead the legal representative of the deceased plaintiff or the

deceased defendant, and that it has no applicability to cases in which the suit

has abated on account of some other cause. This view receives support from

the decision of the Madras High Court in Subramania Iyer v. Venkataramier 1

(1915) 31 I.C. 4. Suppose, the sole plaintiff in a suit dies, and in spite of an

application within six months* by his legal representative the court holds

that the right to sue does not survive, and consequently directs the

abatement of the suit. An abatement of this character obviously stands on a

different footing. It does no take place ipso facto. The court does not record

a merely formal order reciting a past event, as in the case of an abatement in

consequence of an application not having been made within the prescribed

period to implead the legal representative, but it exercises its mind in the

determination of a matter in controversy. The decision of the court directing

the abatement of the suit is, in our opinion, a decree, because the right to

represent the deceased is a point in controversy between the claimant and

the opposite party, and the adjudicator determines their rights with respect

thereto, and puts an end to the case, there being no appeal from the

adjudication as an appeal from an order. An application under Rule 9 is, as

observed above, incompetent and it is difficult to believe that the Legislature

intended that the decision of a matter, which concludes the suit, should be

final and that the aggrieved party should have no remedy whatever.

(*what is referred as `six months' is three months, under Article 120 of

Limitation Act, 1963).

(emphasis supplied)

13. In Mitthulal vs. Badri Prasad - AIR 1981 Madh. Pradesh 1, a full

Bench of the Madhya Pradesh High Court held as follows :

"There seems to be a general consensus of judicial opinion that all orders

of abatement are not decrees. Only those orders of abatement are decrees

in which the Court comes to the conclusion that the right to sue does not

survive on the death of the sole plaintiff or on the death of one of the

plaintiffs to the surviving plaintiffs. The orders of abatement which follow

consequent on the failure of the legal representative of plaintiff to be

brought on record within the period allowed by law or due to the Court

deciding that a particular applicant is not the legal representative, such

orders do not amount to decree. The reason being that the abatement is

automatic consequent on the failure of the legal representative to be

brought on record within the period of limitation and no formal order is

necessary. So there is no adjudication on the rights of the parties in the suit

or appeal by such an order. An order under Order 22, Rule 5 cannot

obviously be said to fall within the definition of decree for the following

reasons (i) the order is made only for the purpose of determining who

should continue the suit as brought by the original plaintiff. It is not

intended to determine and it does not, in fact, determine the rights of the

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parties with regard to any of the matters in controversy in suit. The

question that arises for decision and actually decided is not one arising in

the suit itself but is one that arises in a collateral proceeding and has to be

got decided before the suit can go on; and (ii) In order to operate as a

decree, the adjudication must be one between the parties to the original

suit or their legal representatives, and with regard to only matters in

controversy between the original parties and, therefore, cannot include a

decision of the question as to whether certain individual is or is not

entitled to represent one of such parties. In cases where the Court comes to

the conclusion that the right to sue does not survive consequent on the

death of the sole plaintiff or one of the plaintiffs to the surviving plaintiffs,

there is final adjudication of the rights of the parties and the order amounts

to decree."

(emphasis supplied)

Re: Question (ii)

14. The trial court concentrated upon the evidence of the attesting witness

(Balwant) to the will, and found it inadequate and therefore held that the will

not proved. But the appellate court, in addition relied upon the fact that

deceased plaintiff himself, when he was alive, had filed an application on

25.10.1994 where he referred to the execution of the will. The appellate

court concluded that the evidence of the attesting witness when read with

statement/admission of the deceased plaintiff himself, established due

execution of the will and that the appellant was the legatee under the will of

plaintiff. Thus, the appellate court had given cogent reasons for accepting

the appellant to be the legal representative of the deceased plaintiff, in

pursuance of the will. The High Court, after holding that the appeal filed by

appellant under section 96 of the Code before the District Court was not

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maintainable, should not have proceeded to consider the matter on merits.

But the High Court chose to examine the merits of the matter, in a brief and

casual manner and held that the finding of the trial court was preferable and

finding of the first appellate court was erroneous. The High Court failed to

consider all the facts and circumstances considered by the appellate court.

Having held that the appellate court could not have entertained the appeal,

the High Court was not required to examine the matter on merits. If it chose

to do so, it ought to have done in thoroughly, which it did not.

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.

1 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.

................................J.

(R V Raveendran)

New Delhi; ................................J.

July 4, 2011. (A K Patnaik)