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TMI Blog1983 (4) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... died on July 10, 1955 when the matter was pending in the First Appellate Court. An application was made on May 14, 1956 for setting aside the abatement and bringing the heirs and legal representatives of deceased Jogendra Naik on record. The High Court by its judgment and order dated July 26, 1957 set aside the decree passed by the First Appellate Court and remitted the appeal to the First Appellate Court with a direction that the application for setting aside the abatement and substitution and the counter-affidavit opposing the same be considered by the First Appellate Court and dispose of the same in accordance with law. When after the remand, the appeal came up for hearing before the First Additional Sub-Judge, Hazaribagh. The learned Judge took up the application for setting the abatement and for substitution. The learned Judge was of the opinion that no case was made out for condoning the delay in making the application for substitution and accordingly declined to condone the delay. Consequently, the learned Judge rejected the application for substitution as time-barred. The learned Judge further held that in view of the failure of the appellants to bring heirs and legal repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to be dismissed as having become infructuous. Negativing this contention, the learned Judge held that as the second appeal was incompetent, "it may be deemed to have never been filed, since no second appeal lay, and, therefore, the order-dismissing the appeal would be treated as ineffective". The original plaintiffs preferred Letters Patent Appeal No. 48 of 1961 against the decision of the learned Single Judge. A Division Bench of the Patna High Court held that the dismissal of the second appeal would render the appeal from order infructuous. The Division Bench was further of the opinion that if the appeal from order is allowed and the matter is remitted for re-hearing on merits conflicting decrees would come into existence which is impermissible. Accordingly, the Letters Patent Appeal was allowed and the decision of the learned Single Judge in appeal from order was set aside. The High Court at the instance of the original defendants granted a certificate under Article 133(1)(c) of the Constitution as in the opinion of the High Court the matter is of sufficient importance to deserve consideration by the Supreme Court. 3. Frequently, it appears that procedural provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abate. Sub-rule (2) Rule 9 of Order 22 enables the party who is under an obligation to seek substitution to apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit which would include an appeal, the Court shall set aside the abatement. Now where an application for setting aside an abatement is made, but the Court having not been satisfied that the party seeking setting aside of abatement was prevented by sufficient cause from continuing the appeal, the Court may decline to set aside the abatement. Then the net result would be that the appeal would stand disposed of as having abated. It may be mentioned that no specific order for abatement of a proceeding under one or the other provision of Order 22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under Order 22 Rule 9, C. P. C. for setting aside the abatement. 6. When an appeal is disposed of having abated and thereafter an application is made for setting aside abatement of appeal, an order refusing to set aside abatement is appealable as an order under Order 40 Rule 1(k) C.P.C. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 9. It would thus appear that the second appeal preferred by the original defendants was incompetent. But the appeal from order refusing to set aside abatement was competent. If the second appeal was incompetent, its dismissal cannot have any impact on the disposal on merits of the appeal from order, and that was rightly done by the learned Single Judge. The learned Single Judge admitted the appeal from order and dismissed the second appeal. In fact, in order to avoid this prolonged litigation upto this Court, it could have been mentioned that the second appeal is dismissed as incompetent or as having become infractions as the appeal from order was preferred. In any event, the legal position would not change merely because an incompetent second appeal was preferred which came up for hearing and was dismissed in the circumstances clearly showing that it was dismissed as incompetent. It could have no impact on merits or validity of the decision of the learned single Judge i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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