Achhar vs Koondi and Others

This is an appeal against the order of the Additional District Judge dismissing the application filed by the appellant for setting aside the abatement

order. The facts which gave rise to this appeal briefly stated are these: Against the decree of the Munsiff Ramnagar dated 32-3-2009 Achhar filed

an appeal in the Court of the District Judge Jammu. The appeal was transferred to the Court of the Additional District Judge Jammu on the 22nd

Besakh 2011 and defendant No. 1 was reported to have died and the counsel for the appellant wanted to get his legal representatives brought on

the record. The respondents' counsel raised an objection that Massu defendant No. 1 had died more than six months ago and the substitution

application was not made within time. The appellant's counsel submitted that he had no knowledge of the death of Massu defendant and wanted

time to take steps to bring the legal representatives on record. No application was made by the appellant for substitution and the Court ordered on

15-4-2011 that the appeal abated as against all the respondents because the decree was indivisible.

The appellants made an application under Order 22, Rule 9 praying for setting aside the order of abatement. A preliminary objection was raised

that the order was appealable and application under Order 22, Rule 9 did not lie. This preliminary objection raised found favour with the

Additional District Judge and he dismissed the application made by the appellants. Achhar has appealed against that order.

The sole question for determination in this appeal is whether or not application under Order 22, Rule 9, for setting aside the abatement would lie

before the Additional District Judge.

The counsel for the appellant has argued that the Additional District Judge had passed an order that the appeal had abated as the legal

representatives of Massu were not brought on the record within the prescribed time and that the appellants had two remedies available to them,

namely, to apply for setting aside the order of abatement under Order 22, Rule 9, or go up in appeal against that order; and it is submitted that the

Additional District Judge has erred in law in holding that the application under Order 22, Rule 9 would not lie.

We have carefully considered the argument of the learned Counsel for the appellant and have examined the record. Order 22, Rule 4, sub-rules

(1) and (3) are as follows:

(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole

defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal

representative of the deceased defendant to be made a party and shall proceed with the suit.

(3) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant.

If the application to bring the legal representatives of the deceased defendant on record is not made within the prescribed time and the suit is

ordered to abate against the deceased defendant alone in that case Order 22 Rule 9 Sub-rule (2) will apply and if the plaintiff shows 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. But if the Court finds that the decree is indivisible and the legal representatives of the deceased defendant are not brought

on record within the prescribed time and the suit is ordered to abate against all the defendants, living as well as dead, in that case there is a formal

adjudication made by the Court determining the right of the appellants to continue the appeal against the surviving respondents and it amounts to a

decree and so appealable as such. In support of this view reliance may be placed on Brij Jivan Lal and Another Vs. Shiam Lal and Others, in

which it is held that

In determining whether an order of abatement is open to appeal a distinction should be drawn between those cases of abatement where it is due to

the failure of the heirs being brought on the record within the period allowed by law or due to the Court deciding that a particular applicant is not

the legal representative, and those cases where the abatement is due to the Court deciding that the right to sue does not survive. In the latter class

of cases, there is a decree meaning thereby a formal adjudication which conclusively determines the rights of the parties with regard to all or any of

the matters in controversy in the suit.

In the present case the appeal was ordered to abate not against Massu defendant respondent but against all the respondents in view of the fact

that the decree was not divisible. In these circumstances appeal lay against the order of abatement and not an application under Order 22, Rule 9

for setting aside the abatement. The learned Additional District Judge has rightly dismissed the application made by Achhar and we find no force in

this appeal which is dismissed but we make no order as to costs.