Patel Dahyabhai Mathurbhai vs Dolia Bhaishanker Pitamber and Others

V.B. Raju, J.—This appeal is against an order of the learned Extra Assistant Judge, Nadiad, dismissing an application filed by the original plaintiff, who was appellant before him, for joining the heirs of the deceased respondent No. 1 in the appeal before him. The prayer was that delay in filing the application may be condoned. That prayer was dismissed with costs by the learned; Extra Assistant Judge. It is against that order that this appeal has been filed.

On behalf of the respondents it is contended that the appeal does not He. The learned counsel for the appellant contends that the appeal; lies under Order 43, Rule 1(k) C. P. Code, which permits an appeal against an order under Rule 9 of. Order 22 refusing to set aside the abatement or dismissal of a suit.

We are not dealing with a suit but an: appeal, and it is contended that an appeal is a. continuation of a suit and therefore the word ''suit'' in Order 43, Rule l(k), C. P. Code, includes an appeal. Reliance is also placed on Order 22, Rule 11, C. P. Code, which reads as follows:

"In the application of this Order to appeals, so far as may be, the word ''plaintiff Shall beheld to include an appellant, the word ''defendant'' a respondent, and the word ''suit'' an appeal."

This is a specific provision, whereby the word ''suit'' as used in Order 22 includes an appeal. There is no such provision in Order 43, C. P. Code. The word ''suit'' occurring in Order 43, Rule l(k), C.P. Code, therefore, does not include an appeal. The contention that an appeal is a continuation of a suit and that therefore the word ''suit'' in Order 43, Rule 1(k), C. P. Code, includes an appeal is rejected, because even if the appeal abates, the suit may not abate.

In fact, no order of abatement of the appeal has been passed in this case. I, therefore, hold that this appeal is not maintainable. The same view has been taken in Samru and Others Vs. Bansari Burmani, , by a Division Bench, and it was held that there is no appeal against an order under Order 22, Rule 9 refusing to set aside an abatement of an appeal because the word ''suit'' in Order 43, Rule l(k) C. P. C. does not include an appeal.

I, therefore, dismiss the appeal. No order as to costs.