LexMANGLURAM DEWANGAN versus SURENDRA SINGH AND ORS.
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[2011] 8 S.C.R. 129 MANGLURAMDEWANGAN v. SURENORA SINGH AND ORS. (Civil Appeal No. 4923 of 2011) JULY 4, 2011 [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.] Code of Civil Procedure, 1908: A B s. 2(2) - Decree - Essential requirements for an order to c be treated as decree - Discussed. ss.2(2), 96, 104, 115, Or.43 r.1 - Decree and appealable order - Distinction between - Held: Where the order is a 'decree' as defined u/s.2(2), an appeal would He u/s.96 (with 0 a provision for a second appeal uls.100) - When the order is not a 'decree', but is an order which is one among those enumerate~ in s. 104 or r. 1 of Or. 43, an appeal would lie u/ s. 104 or u/s. 104 r/w Or. 43, r. 1 (without any provision for a second appeal) - If the order is neither a 'decree', nor an appealable 'order' enumerated in s.104 or Or.43 r. 1, a revision E would lie uls. 115, if it satisfies the requirements of that section - The difference between a 'decree' appealable uls.96 and an, 'order' appealable uls.104 is that a second appeal is available in respect of decrees in first appeals uls. 96, whereas no further appeal fies from an order in an appeal uls. 104 and Or. 43, r. 1. F Or.22 r.9(2)-Appfication u/Or.22, r.9(2) can be filed only if there is abatement or dismissal u/Or.22 on account of no application being made - When an order is passed u/Or.22 ff.3 and 5 dismissing an application by a person claiming to G 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 ulr.9(2) of Or.22 which is amenable for an· appeal u/s. 104 rlw Or. 43 r. 1 (k) - It, therefore, follows that an 129 H 130 SUPREME COURT REPORTS [2011) 8 S.C.R. A order u/Or.22 rr.3 and 5 is not appealable u/s.104 or Or.43 r. 1. s. 115; Or. 22 r. 3 - Death of sole plaintiff - Application by appellant u/Or. 22 r. 3, for being added as a party to the suit 8 as legal representative of the deceased plaintiff - Rejected by trial court and consequently suit dismissed ir, the absence of any legal heir - Remedy available to the appellant - Held: Remedy available with the appellant was to file a revision and not appeal - Appellant in an application u/Or.22 r.3 was not party to the suit - When such an application by a non-party C 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 - Therefore, an order dismissing an application u!Or.22 r.3 after D an enquiry u/r.5 and consequently dismissing the suit, is not a decree - Moreover when an order passed u/Or. 22 rr. 3 and 5 dismissing an application on the ground that the applicant is not a legal representative and consequently dismissing the suit, it will not be a dismissal ulr.9(2) of Or.22 which is E amenable for an appeal uls. 104 rlw Or. 43 r. 1 (k) - It therefore follows that an order u/ Or.22 rr.3 and 5 is not appealable u/ s.104 or Or.43 r.1 - Trial court's order is neither a 'decree' appealable uls.96 nor an order appealable u/s.104 and Or.43 Rule 1 and, therefore, remedy of the appellant was to file a F revision - Revision. G H Or. 22 r. 3 - Death of sole plaintiff - Effect on continuation of suit when right to sue survives and when the right to sue does not survive - Discussed. Or. 22 r. 3 - Remedies available to an applicant whose application u/Or.22 Rule 3, for being added as a party to the suit as legal representative of the deceased plaintiff is rejected - Discussed. Or. 22 r. 3 - Death of sole plaintiff - Application by MANGLURAM DEWANGAN v. SURENDRA SINGH 131 AND ORS. appellant for being added as a party to the suit as legal A representative of the deceased plaintiff on the basis of Will - Trial court held that. Will was not proved - But appellate court held that appellant duly proved the execution of the Will - Appellate court gave cogent reasons for accepting the appellant to be the legal representative of the deceased B plaintiff, in pursuance of the Will - High Court, after holding that the appeal filed by appellant uls. 96 before the District Court was not maintainable, proceeded to consider the matte} on merits - Held: Not proper - High Court chose to examine the merits of the matter, in a brief and casual manner and held c that the finding of the trial court
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