Case Note & Summary
The appellant, plaintiff no.1, filed a second appeal against an order of the Additional District Judge which affirmed the trial court's order dismissing her application for substitution of legal heirs of deceased plaintiff no.2 and holding that the suit had abated. The respondents raised a preliminary objection that the second appeal was not maintainable because the impugned order was not a 'decree' as defined under Section 2(2) of the Code of Civil Procedure, 1908. The High Court examined the definition of 'decree' and the nature of the order. It noted that an order of abatement does not involve an adjudication on the merits of the suit; it merely records that the suit cannot proceed due to failure to substitute legal heirs within time. Such an order does not conclusively determine the rights of the parties with regard to the matters in controversy. The court relied on the Supreme Court judgment in Madan Naik v. Mst. Hansubala Devi & Others, which held that abatement of an appeal does not imply adjudication on merits and is not a decree. Consequently, the court held that no second appeal lies against such an order under Section 100 CPC. The proper remedy for the appellant is to apply for setting aside the abatement under Order 22 Rule 9 CPC. The second appeal was dismissed as not maintainable.
Headnote
A) Civil Procedure - Second Appeal - Maintainability - Decree - Section 2(2), Section 100, Order 22 Rule 9, Code of Civil Procedure, 1908 - The court held that a second appeal lies only against a 'decree' as defined under Section 2(2) CPC. An order dismissing an application for substitution and holding that the suit has abated does not conclusively determine the rights of the parties with regard to the matters in controversy and is not a decree. Therefore, no second appeal is maintainable under Section 100 CPC. The proper remedy is to apply for setting aside the abatement under Order 22 Rule 9 CPC. (Paras 2, 6-7)
Issue of Consideration
Whether a second appeal is maintainable against an order dismissing an application for substitution and holding that the suit has abated, when such order is not a 'decree' as defined under Section 2(2) of the Code of Civil Procedure, 1908.
Final Decision
The second appeal is dismissed as not maintainable. The order of abatement is not a decree under Section 2(2) CPC, and no second appeal lies under Section 100 CPC. The appellant may apply for setting aside the abatement under Order 22 Rule 9 CPC.
Law Points
- Second appeal lies only against a decree as defined under Section 2(2) CPC
- Order of abatement of suit is not a decree
- No second appeal against order of abatement
- Remedy is to apply for setting aside abatement
Case Details
2005 LawText (BOM) (11) 33
Second Appeal No. 59 of 2000
Shri E. Dias for the appellant, Shri Parag S. Rao for the respondents
Mrs. Marianinha Fernandes Vaz
Mr. Peter Fernandes and Mrs. Irene Caiado Fernandes
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Nature of Litigation
Second appeal against order of abatement of suit
Remedy Sought
Appellant sought to challenge the order of the Additional District Judge affirming the trial court's order dismissing substitution application and holding suit abated
Filing Reason
Appellant's husband (plaintiff no.2) died, and application for substitution was filed after delay; trial court dismissed it and held suit abated; appeal to District Court failed
Previous Decisions
Trial court order dated 26/2/1999 dismissed substitution application and held suit abated; Additional District Judge order dated 4/11/1999 affirmed the trial court's findings
Issues
Whether a second appeal is maintainable against an order dismissing an application for substitution and holding that the suit has abated, when such order is not a 'decree' as defined under Section 2(2) CPC
Submissions/Arguments
Respondents argued that second appeal lies only against a decree as defined under Section 2(2) read with Section 100 CPC, and the impugned order is not a decree. Relied on Madan Naik v. Mst. Hansubala Devi & Others.
Ratio Decidendi
An order dismissing an application for substitution and holding that the suit has abated does not conclusively determine the rights of the parties with regard to the matters in controversy in the suit. It is not a 'decree' as defined under Section 2(2) of the Code of Civil Procedure, 1908. Therefore, no second appeal lies against such an order under Section 100 CPC. The proper remedy is to apply for setting aside the abatement under Order 22 Rule 9 CPC.
Judgment Excerpts
Section 2(2) of C.P.C. defines 'Decree' to mean 'the formal expression of an adjudication, which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.'
Abatement of an appeal does not imply adjudication on merits and hence specific provision had to be made in Order 22, Rule 9 (1) that no fresh suit could be brought on the same cause of action.
Procedural History
Special Civil Suit No.129 of 1989/A was filed by plaintiff no.1 and her husband (plaintiff no.2). Plaintiff no.2 died on 21/1/1998. Plaintiff no.1 filed application for substitution on 9/9/1998, which was objected to. She filed another application for condonation of delay on 26/11/1998. Trial court dismissed both applications on 26/2/1999 and held suit abated. Plaintiff appealed to District Court, which affirmed the order on 4/11/1999. Plaintiff then filed this second appeal, which was admitted on 8/9/2000.
Acts & Sections
- Code of Civil Procedure, 1908: Section 2(2), Section 100, Order 22 Rule 9
