M/s. Ramkumar Harishankar And Ors. vs Rajesh Kasera And Ors.

The petitioners are aggrieved of order dated 12.12.2006 passed in Title Appeal No. 17 of 1994 by which legal heirs and representatives of the

original landlord have not been substituted in the pending appeal. Â

The petitioners are defendants in Title (Eviction) Suit No. 58 of 1989. The suit was decreed by judgment dated 16.10.1993, against which Title

Appeal No. 17 of 1994 was preferred by the defendants. On dismissal of the appeal vide judgment dated 22.04.1996 the petitioners preferred

S.A.No. 42 of 1996 which was allowed and the matter was remanded to the lower Appellate Court. After remand, during pendency of Title Appeal

No. 17 of 1994, the original   plaintiff-Gopal Kasera died on 25.01.2002. He was the rent collector on behalf of the landlord and owner namely,

Hari Bux Poddar. The petitioners filed an application under Order XXII Rule 4 C.P.C read with Section 151 C.P.C for substitution of the sole

respondent in Title Appeal No. 17 of 1994 through the legal heirs and representatives of the original landlord-Hari Bux Poddar. The respondent nos.

1 and 2 who are the adopted son and daughter of the    plaintiff-Gopal Kasera, claiming themselves legal heirs and successors of the original

plaintiff have also filed an application under Order XXII Rule 3(1) C.P.C for their substitution in place of the original plaintiff. By the impugned order

dated 12.12.2006 the application filed by the petitioners for substitution of the original plaintiff through legal heirs and successors of the original

landlord has been dismissed and the application filed by the respondents who claim themselves legal heirs and successors of the original plaintiff has

been allowed.Â

Order XXII C.P.C provides procedure for substitution in case of death, marriage and insolvency of the parties. Rule 1 declares that death of

plaintiff or defendant shall not cause the suit to abate if the right to sue survives. An order passed under Order XXII Rule 4 C.P.C or under Order

XXII Rule 3 C.P.C, after an enquiry under Rule 5, is not appealable under Order XLIII Rule 1 C.P.C. It is not a decree in terms of Section 2(2)

C.P.C and while so, an appeal under Section 96 C.P.C shall also not lie. In “Mangluram Dewangan Vs. Surendra Singh and Others†reported

in (2011) 12 SCC 773, in identical facts the Supreme Court has observed as under:

 “11. 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 :

(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).Â

(ii) When the order is not a “decreeâ€, 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 “decreeâ€, 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.â€​ Â

“22.  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.â€​Â

“23.  As the order dated 31.08.1996 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 decree and therefore the remedy of the applicant was to file a revision.â€​Â

In view of the decision in Mangluram Dewangan, contention that after amendment in the Code of Civil Procedure against an interlocutory order

revision would not lie may be correct as a general proposition, however, in the facts of this case this writ petition challenging the impugned order dated

12.12.2006 by which an application under          Order XXII Rule 3 C.P.C has been allowed is held not maintainable. Â

Accordingly, the writ petition is dismissed as not maintainable, but with liberty to the petitioners to prefer revision application under Section 115

C.P.C within six weeks. Â

Interim order dated 06.08.2007 stands vacated. Â