# MANGLURAMDEWANGAN v. SURENORA SINGH AND ORS

- **Citation:** [2011] 8 S.C.R. 129
- **Court:** Supreme Court of India
- **Decided:** 2011-07-04
- **Case number:** Civil Appeal No. 4923 of 2011
- **Bench:** R.V. Raveendran, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mangluramdewangan-v-surenora-singh-and-ors-27888
- **Pages:** 25

## Headnote

Code of Civil Procedure, 1908:
A
B
s. 2(2) - Decree - Essential requirements for an order to c
be treated as decree - Discussed.
ss.2(2), 96, 104, 115, Or.43 r.1 - Decree and appealable
order - Distinction between - Held: Where the order is a
'decree' as defined u/s.2(2), an appeal would He u/s.96 (with
0
a provision for a second appeal uls.100) - When the order is
not a 'decree', but is an order which is one among those
enumerate~ in s. 104 or r. 1 of Or. 43, an appeal would lie u/
s. 104 or u/s. 104 r/w Or. 43, r. 1 (without any provision for a
second appeal) - If the order is neither a 'decree', nor an
appealable 'order' enumerated in s.104 or Or.43 r. 1, a revision
E
would lie uls. 115, if it satisfies the requirements of that section
- The difference between a 'decree' appealable uls.96 and an,
'order' appealable uls.104 is that a second appeal is available
in respect of decrees in first appeals uls. 96, whereas no further
appeal fies from an order in an appeal uls. 104 and Or. 43, r. 1.
F
Or.22 r.9(2)-Appfication u/Or.22, r.9(2) can be filed only
if there is abatement or dismissal u/Or.22 on account of no
application being made - When an order is passed u/Or.22
ff.3 and 5 dismissing an application by a person claiming to
G
be a legal representative on the ground that he is not a legal
representative and consequently dismissing the suit, it will not
be a dismissal ulr.9(2) of Or.22 which is amenable for an·
appeal u/s. 104 rlw Or. 43 r. 1 (k) - It, therefore, follows that an
129
H
130
SUPREME COURT REPORTS
[2011) 8 S.C.R.
A order u/Or.22 rr.3 and 5 is not appealable u/s.104 or Or.43 r.
1.
s. 115; Or. 22 r. 3 - Death of sole plaintiff - Application by
appellant u/Or. 22 r. 3, for being added as a party to the suit
8 as legal representative of the deceased plaintiff - Rejected
by trial court and consequently suit dismissed ir, the absence
of any legal heir - Remedy available to the appellant - Held:
Remedy available with the appellant was to file a revision and
not appeal - Appellant in an application u/Or.22 r.3 was not
party to the suit - When such an application by a non-party
C is dismissed after a determination of the question whether he
is a legal representative of the deceased plaintiff, there is no
adjudication determining the rights of parties to the suit with
regard to all or any of the matters in controversy in the suit -
Therefore, an order dismissing an application u!Or.22 r.3 after
D an enquiry u/r.5 and consequently dismissing the suit, is not
a decree - Moreover when an order passed u/Or. 22 rr. 3 and
5 dismissing an application on the ground that the applicant
is not a legal representative and consequently dismissing the
suit, it will not be a dismissal ulr.9(2) of Or.22 which is
E amenable for an appeal uls. 104 rlw Or. 43 r. 1 (k) - It therefore
follows that an order u/ Or.22 rr.3 and 5 is not appealable u/
s.104 or Or.43 r.1 - Trial court's order is neither a 'decree'
appealable uls.96 nor an order appealable u/s.104 and Or.43
Rule 1 and, therefore, remedy of the appellant was to file a
F revision - Revision.
G
H
Or. 22 r. 3 - Death of sole plaintiff - Effect on continuation
of suit when right to sue survives and when the right to sue
does not survive - Discussed.
Or. 22 r. 3 - Remedies available to an applicant whose
application u/Or.22 Rule 3, for being added as a party to the
suit as legal representative of the deceased plaintiff is rejected
- Discussed.
Or. 22 r. 3 - Death of sole plaintiff - Application by
MANGLURAM DEWANGAN v. SURENDRA SINGH
131
AND ORS.
appellant for being added as a party to the suit as legal A
representative of the deceased plaintiff on the basis of Will -
Trial court held that. Will was not proved - But appellate court
held that appellant duly proved the execution of the Will -
Appellate court gave cogent reasons for accepting the
appellant to be the legal representative of the deceased
B
plaintiff, in pursuance of the Will - High Court, after holding
that the appeal filed by

## Text

_Characters 0–39,986 of 49,397. This is a partial read: ask again with offset=39986 for what follows._

[2011] 8 S.C.R. 129
MANGLURAMDEWANGAN
v.
SURENORA SINGH AND ORS.
(Civil Appeal No. 4923 of 2011)
JULY 4, 2011
[R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]
Code of Civil Procedure, 1908:
A
B
s. 2(2) - Decree - Essential requirements for an order to c
be treated as decree - Discussed.
ss.2(2), 96, 104, 115, Or.43 r.1 - Decree and appealable
order - Distinction between - Held: Where the order is a
'decree' as defined u/s.2(2), an appeal would He u/s.96 (with
0
a provision for a second appeal uls.100) - When the order is
not a 'decree', but is an order which is one among those
enumerate~ in s. 104 or r. 1 of Or. 43, an appeal would lie u/
s. 104 or u/s. 104 r/w Or. 43, r. 1 (without any provision for a
second appeal) - If the order is neither a 'decree', nor an
appealable 'order' enumerated in s.104 or Or.43 r. 1, a revision
E
would lie uls. 115, if it satisfies the requirements of that section
- The difference between a 'decree' appealable uls.96 and an,
'order' appealable uls.104 is that a second appeal is available
in respect of decrees in first appeals uls. 96, whereas no further
appeal fies from an order in an appeal uls. 104 and Or. 43, r. 1.
F
Or.22 r.9(2)-Appfication u/Or.22, r.9(2) can be filed only
if there is abatement or dismissal u/Or.22 on account of no
application being made - When an order is passed u/Or.22
ff.3 and 5 dismissing an application by a person claiming to
G
be a legal representative on the ground that he is not a legal
representative and consequently dismissing the suit, it will not
be a dismissal ulr.9(2) of Or.22 which is amenable for an·
appeal u/s. 104 rlw Or. 43 r. 1 (k) - It, therefore, follows that an
129
H
130
SUPREME COURT REPORTS
[2011) 8 S.C.R.
A order u/Or.22 rr.3 and 5 is not appealable u/s.104 or Or.43 r.
1.
s. 115; Or. 22 r. 3 - Death of sole plaintiff - Application by
appellant u/Or. 22 r. 3, for being added as a party to the suit
8 as legal representative of the deceased plaintiff - Rejected
by trial court and consequently suit dismissed ir, the absence
of any legal heir - Remedy available to the appellant - Held:
Remedy available with the appellant was to file a revision and
not appeal - Appellant in an application u/Or.22 r.3 was not
party to the suit - When such an application by a non-party
C is dismissed after a determination of the question whether he
is a legal representative of the deceased plaintiff, there is no
adjudication determining the rights of parties to the suit with
regard to all or any of the matters in controversy in the suit -
Therefore, an order dismissing an application u!Or.22 r.3 after
D an enquiry u/r.5 and consequently dismissing the suit, is not
a decree - Moreover when an order passed u/Or. 22 rr. 3 and
5 dismissing an application on the ground that the applicant
is not a legal representative and consequently dismissing the
suit, it will not be a dismissal ulr.9(2) of Or.22 which is
E amenable for an appeal uls. 104 rlw Or. 43 r. 1 (k) - It therefore
follows that an order u/ Or.22 rr.3 and 5 is not appealable u/
s.104 or Or.43 r.1 - Trial court's order is neither a 'decree'
appealable uls.96 nor an order appealable u/s.104 and Or.43
Rule 1 and, therefore, remedy of the appellant was to file a
F revision - Revision.
G
H
Or. 22 r. 3 - Death of sole plaintiff - Effect on continuation
of suit when right to sue survives and when the right to sue
does not survive - Discussed.
Or. 22 r. 3 - Remedies available to an applicant whose
application u/Or.22 Rule 3, for being added as a party to the
suit as legal representative of the deceased plaintiff is rejected
- Discussed.
Or. 22 r. 3 - Death of sole plaintiff - Application by
MANGLURAM DEWANGAN v. SURENDRA SINGH
131
AND ORS.
appellant for being added as a party to the suit as legal A
representative of the deceased plaintiff on the basis of Will -
Trial court held that. Will was not proved - But appellate court
held that appellant duly proved the execution of the Will -
Appellate court gave cogent reasons for accepting the
appellant to be the legal representative of the deceased
B
plaintiff, in pursuance of the Will - High Court, after holding
that the appeal filed by appellant uls. 96 before the District
Court was not maintainable, proceeded to consider the matte}
on merits - Held: Not proper - High Court chose to examine
the merits of the matter, in a brief and casual manner and held c
that the finding of the trial court was preferable and finding of
the first appellate court was erroneous - High Court failed to
consider all the facts and circumstances considered by the
appellate court - Having held that the appellate court could
not have entertained the appeal, High Court was not required 0
to examine the matter on merits - If it chose to do so, it ought
to have done it thoroughly, which it did not - Will.
One 'P' (plaintiff) filed a suit against the respondents
for declaration, possession and damages in regard to an
immovable property. 'P' died during the pendency of the
E
suit. The appellant filed an application under Order 22
Rule 3 of Civil Procedure Code to be added and
substituted as the legal representative of 'P' claiming to
/
be the sole legatee on the basis of a registered Will.
executed by 'P'. The trial court held that there was no
F
evidence to prove the execution of.Will and, therefore, the
appellant could not be held to be the legal representative
of 'P' and dismissed the application under Order 22 Rule
3 of the Code and consequently in U1e absence of any
legal heir of 'P' dismissed the suit. f,ggrieved, the G
appellant filed appeal. The appellate court held that
registered Will was proved by examining one of the
attesting witness. It held that the order of the trial court
dismissing the suit as a consequence of the rejection of
the application under Order 22 Rule 3 of the Code fell
H
132
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A within the definition of "decree" under section 2(2) of the
Code. The appellate court, therefore, set aside the order
passed by the trial court and permitted the appellant to
be brought on record and continue the suit as legal
representative of the plaintiff and remanded the suit to
B trial court under Order 41 Rule 23 of the Code for
deciding the matter on merits.
On appeal, the High Court held that the order of the
trial court did not amount to decree and, therefore, the
appeal before the appellate court was not maintainable.
C · It held that an order can be a "decree" if it conclusively
determines the rights of parties, with regard to all or any
of the matters in controversy in the suit; the question
whether 'P' executed a Will in favour of appellant and,
thus, appellant was a legal representative of 'P' was not
D an issue in controversy in the suit, but arose incidentally
for determination in view of the application of appellant
for being brought on record as the legal representative
of 'P' and, therefore, an order on such an application did
not decide all or any of the matters in controversy in the
E suit and was not a 'decree' as defined under Section 2(2).
In view of that, only a revision was a rem'edy aga1nst such
an order and not an appeal. The High Court after holding
that the appeal was not maintainable also considered the
matter on merits and held that the trial court was justified
F in dismissing the application under Order 22 Rule 3 of the
Code by holding that the will was not proved.
The questions which arose for consideration in the
instant appeal were whether an order of the trial court
rejecting an application filed under Order 22 Rule 3 of the
G Code, by a person claiming to be the legatee under the
Will of the plaintiff and consequently dismissing the suit
in the absence of any legal heir, is an appealable decree;
and (ii) whether the High Court was justified in upholding
the decision of the trial court that the Will was not proved
H
MANGLURAM DEWANGAN v. SURENDRA SINGH
133
AND ORS.
and rejecting the application under Order 22 Rule 3 of the
A
Code ..
Partly allowing the appeal, the Court
HELD: 1.1. A combined reading of the several
· provisions of Order 22 of Code of Civil Procedure makes
the following position clear: (a) when the sole plaintiff
dies and the right to sue survives, on an application made
B
in that behalf, the court shall cause the legal
representative of the deceased plaintiff to be brought on
record and proceed with the suit; (b) if the court holds
C
that the right to sue does not survive on the death of the
plaintiff, the suit will abate under Rule 1 of Order 22 of the
Code; (c) even where the right to sue survives, if no
appljcation is made for making the legal representative a
party to the suit, within the time limited by law (that is a o
period of 90 days from the date of death of the plaintiff
prescribed for making an application to make the legal
representative a party under Article 120 of the Limitation
Act, 1963), the suit abates, as per Rule 3(2) of Order 22 of
the Code; (d)abatement occurs as a legal consequence
E
of (i) court holding that the right to sue does not suryive;
or (ii) no application being made by any legal
representative of the deceased plaintiff to come on record
and continue the suit. Abatement is not dependant upon
any formal order of the court that the suit has abated; (~)
even though a formal order declaring the abatement is not
necessary when the suit abates, as the proceedings in
the suit are likely to linger and will not be closed without
a formal order of the court, the court is usually to make
F
an order recording that the suit has abated, or dismiss
the suit by reason of abatement under Order 22 of the
G
Code; (f) where a suit abates or where the suit is
dismissed, any person claiming to be the legal
representative of the deceased plaintiff may apply for
setting aside the abatement or dismissal of the suit under
Order 22 Rule 9 (2) of the Code. If sufficient cause is
H
134
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A shown, the court will set aside the abatement or
· dismissal. If .however such application is dismissed, the
order dismissing such an application is open to
challenge in an appeal under Order 43 Rule 1 (k) of the
Code; (g) a person claiming to be the legal representative
s cannot make an application under rule 9(2) of order 22
for setting aside the abatement or dismissal, if he had
already applied under order 22 Rule 3 for being brought
on record within time and his application had been
dismissed after an enquiry under Rule 5 of Order 22, on
c the ground that he is not the legal representative. [Para
5) [143-F-H; 144-A-H]
1.2. 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
D deceased plaintiff, has been rejected.
The normal remedies available under the Code
whenever a civil court makes an order under the Code
are: (i) Where the order is a 'decree' as defined under
E section 2(2) of the Code, an appeal would lie under
section 96 of the Code (with a provisio-n for a second
appeal under section 100 of the Code). (ii) When the order
is not a 'decree', but is an order which is one among
those enumerated in section 104 or Rule 1 of Order 43,
F 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 'decree', nor an appealable 'order' enumerated in
section 104 or Order 43 Rule 1, a revision would lie under
G section 115 of the Code, if it satisfies the requirements
of that section. When a party is aggrieved by any decree
or order, he can also seek review as provided in Section
114 subject to fulfillment of the conditions contained in
that section and Order 47 Rule 1, CPC. The difference
between a 'decree' appealable under section 96 and an
iH
MANGLURAM DEWANGAN v. SURENDRA SINGH
135
AND ORS.
'order' appealable under section 104 is that a second
A
. appeal is available in respect of decrees in first appeals
under section 96, whereas no further appeal lies from an
order in an appeal under section 104 and Order 43, Rule
1 of the Code. Section 96 of the Code provides that save
where otherwise expressly provided in the body of the
B
Code or by any other law for the time being in force, an
appeal shall lie from every decree passed by any court
exercising original jurisdiction to the court authorized to
hear appeals from the decisiOn of such court. [Paras 6,
7] [145-A-H; 146-A-B]
C
1.3. A reading of the definition of decree in Section
2(2) shows that the following essential requirements
should be fulfilled· if an order should be treated as a
'decree': (i) there should. be an adjudication in a suit; (ii)
the adjudicatio11 should result in a formal expression D
.which is conclusive so far as the court expressing it; (iii)
the adjudication should determine the rights of parties
with regard to all or any of the matters in controversy in
the suit; and (iv) the adjudication should be one from
which an appeal does not lie as an appeal from an order
E
(under section 104 and order 43 Rule 1 of the Code) nor
should it be an order dismissing the suit for default.
There is no dispute that the order dated 31.8.1996 made
on the application under Rules 3 and 5 of Order 22 of the
trial court satisfies requirements (i) and (ii). The question
F
is whether it satisfies the third and fourth requirements.
The fourth requirement is considered first. No appeal is
provided against an order under Order 22 Rule 3 and 5
of the Code, either under section 104 or Order 43 Rule 1
of the Code. Clause (k) of Rule 1 of Order 43 of the Code
G
· however provides that an appeal shall lie under Section
104 of the Code, from an order under Rule 9 of Order 22
refusing to set aside the abatement or dismissal of a suit.
Sub-Rule (2) of Rule 9 of Order 22 permits a legal
representative of a deceased plaintiff to apply for an order
H
136
SUPREME COURT REPORTS
[2011] 8 S C.R.
A to set aside the abatement or dismissal under Order 22
of the Code. An order under Rule 9(2) refusing to set
aside an abatement or dismissal of the suit is
contemplated, only where there is abatement or dismissal
under order 22 and an application has been made by a
B legal representative to set aside such abatement or
dismissal. But where a person claiming to be the legal
representative had already filed an application under
Order 22 Rule 3 within the period of limitation, and such
application has been dismissed on the ground that he is
c not a legal representative, there is no question of such
applicant under Order 22 Rule 3, filing an application
under Rule 9(2) for setting aside the abatement or
dismissal. An application under Rule 9(2) can be filed only
if there is abatement or dismissal under Order 22 on
0 account of no application being made. Therefore, when
an order is passed under Order 22 Rules 3 and 5 of the
Code, dismissing an application by a person claiming to
be a legal representative on the ground that he is not a
legal representative and consequently dismissing the
suit, it will not be a dismissal under Rule 9(2) of Order 22
E which is amenable for an appeal under section 104 read
with Order 43 Rule 1 (k) of the Code. It therefore follows
that an order under Order 22 Rule 3 and 5 is not
appealable under section 104 or Order 43 Rule 1, CPC
and, therefore, requirement under clause (iv) is complied
F with. [Paras 7, 8] [146-G-H; 147-A-H; 148-A-C)
1.4. Having found that the order under Order dated
31.8.1996 complied with requirements (i), (ii) and (iv), what
remains to be considered is whether it fulfils requirement
G (iii) also, so that it will answer the definition of decree in
section 2(2) of the Code. Requirement (iii) is that the
adjudication must determine the rights of the parties with
regard to all or any of the matters in controversy in the
suit. The applicant in an application under Order 22 Rule
H 3 is not a party to the suit. An application under Order 22
MANGLURAM DEWANGAN v. SURENDRA SINGH
137
AND ORS.
Rule 3 is by a non-party requesting the court to make him
A
a party as the legal representative of the deceased
plaintiff. Necessarily unless the application under Order
B
22 Rule 3 is allowed and the applicant is permitted to
come on record as the legal representative of the
deceased, he will continue to be a non-party to the suit.
When such an application by a· non-party is dismissed
after a determination of the question whether he is a legal
representative of the deceased plaintiff, there is no
adjudication determining the rights of parties to the suit
with regard to all or any of the matters in controversy in c
the suit. It is determination of a collateral issue as to
whether the applicant, who is not a party, should be
permitted to come on record as the legal representative
of the deceased. Therefore, an order dismissing an
application under Order 22 Rule 3 after an enquiry under 0
Rule 5 and consequently dismissing the suit, is not a
decree. As the order dated 31.8.1996 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
E
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. [Paras 9, 10) [148-C-H;
149-A-B]
F
1.5. The contention that even if the rejection of an
application under Order 22 Rule 3 after an enquiry under
Rule 5, may not amount to a decree, the consequential
G
dismissal of the suit on the ground that there is no legal
representative, is a denial of the substantive rights
claimed by the plaintiff against the defendant in the suit
is clearly flawed. If the court orders that suit has abated
or dismissed the suit as having abated, as a
H
138
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A consequence of rejection of an application under Order
22 Rule 3 of the Code, there is no determination of rights
of parties with regard to any of the matters in controversy
in the suit and therefore the order is not a decree. But if
an order declares that the suit has abated, or dismisses
B a suit not as a consequence of legal representatives filing
any application to come on record, but in view of a finding
that right to sue does not survive on the death of sole
plaintiff, there is an adjudication determining the rights of
parties in regard to all or any of the matters in
c controversy in the suit, and such order will be a decree.
D
But that is not the case here. [Para 11] [149-C-F]
Niranjan Nath v. Afzal Hussain AIR 1916 Lahore 245;
Mitthulal vs.Badri Prasad AIR 1981 Madh. Pradesh 1 -
referred to.
2.1. The trial court concentrated upon the evidence
of the attesting witness (Balwant) to the Will, and found
it inadequate and therefore held that the will not proved.
But the appellate court, in addition relied upon the fact
E that deceased plaintiff himself, when he was alive, had
filed an application on 25.10.1994 where he referred to the
execution of the Will. The appellate court concluded that
the evidence of the attesting witness when read with
statemenUadmission of the deceased plaintiff himself,
established due execution of the Will and that the
F appellant was the legatee under the Will of plaintiff. Thus,
the appellate court had given cogent reasons for
accepting the appellant to be the legal representative of
the deceased plaintiff, in pursuance of the Will. The High
Court, after holding that the appeal filed by appellant
G under section 96 of the Code before the District Court was
not maintainable, should not have proceeded to consider
the matter on merits. But the High Court chose to examine
the merits of the matter, in a brief and casual manner and
held that the finding of the trial court was preferable and
H finding of the first appellate court was erroneous. The
MANGLURAM DEWANGAN v. SURENDRA SINGH
139
AND ORS.
High Court failed to consider all the facts and
A
circumstances considered by the appellate court. Having
held that the appellate court could not have entertained
the appeal, the High Court was not requ1red to ex~mine
the matter on merits. If it chose to do so, it ought to ·have
done in thoroughly, which it did not. [Para 14] [152-F-H;
B
153-A-C]
2.2. The finding of the High Court that the order dated
31.1.1996 passed by the trial court, was not appealable
is upheld. The finding of the High Court that the Will was
C
not proved and therefore, the appellant was not a legal
representative is set aside as the said finding was not'
warranted without consideration of the entire evidence.
As a consequence, it will be open to the appellant to
challenge the order dated 31.8.1996 in a revision petition
before the High Court and if such a revision is filed, the
D
period spent till now in bona fide litigation, shall have to
be excluded for purposes of limitation. [Para 15) (153-DE]
Case Law Reference:
AIR 1916 Lahore 245
referred to
AIR 1981 Madh. Pradesh 1 referred to
Para 12
Para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4923 of 2011.
From the Judgment & Order dated 15.4.2008 of the High
Court of Chhattisgarh at Bilaspur in Misc. Appeal No. 332 of
1998.
S.S. Khanduja, Yash Pal Dhingra for the Appellant.
K. Sarada Devi, Niraj Kumar Singh, V.N. Raghupathy for
the Respondents.
The Judgment of the Court of was delivered by
E
F
G
H
140
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A
R.V.RA VEENDRAN, J. 1. Leave granted.
2. One Prannath filed a suit against the respondents for
declaration, possession and damages on 4.8.1989 in regard
to an immovable property. Prannath died on 12.11.1994 during
8 the pendency of the suit. The appellant filed an application under
Order 22 Rule 3 of the Code of Civil Procedure ('Code' for
short) on 27 .1.1995 to be added and substituted as the legal
representative of Prannath, claiming that he was the sole
legatee under the registered will dated 10.10.1994 executed
by Prannath. The said application was contested by the
C respondents-defendants. They denied the allegation that
deceased plaintiff Prannath had executed any will in favour of
the appellant. They contended that the appellant was not the
legal heir nor legatee of Prannath and therefore not entitled to
be added as a party, as the legal representative of the
D deceased plaintiff. In view of the contest to the application, the
appellant examined one Balwant who was an attesting witness
to the will. After considering the documentary and oral evidence,
the trial court (IV Civil Judge, Class II, Bilaspur) made an order
dated 31.8.1996, holding that there was no acceptable
E evidence to prove the will and therefore the appellant could not
be held to be the legal representative of the plaintiff. The trial
court held that the application by the appellant under Order 22
Rule 3 of the Code could not be entertained or accepted and
consequently in the absence of any legal heir of the plaintiff
F dismissed the suit.
2. Feeling aggrieved the appellant filed an appeal in the
court of the V Additional District Judge, Bilaspur. The appellate
court allowed the appeal by order dated 28.1.1998. It held that
the registered will was proved by examining one of the attesting
G witnesses; that deceased Prannath himself had submitted an
application in court in the pending suit on 25.10.1994 referring
to the execution of his will dated 10.10.1994 and praying that
his evidence may be recorded without delay; and that therefore
the appellant was entitled to be impleaded as the legal
H representative of the deceased plaintiff. The appellate court
MANGLURAM DEWANGAN v. SURENDRA SINGH
141
AND ORS. [RV. RAVEENDRAN, J.]
rejected the contention of the respondents-defendants that the
A
appeal was not maintainable. If held that the order of the trial
cot.irt dismissing the suit as a consequence ofthe rejection of
the application under Order 22 Rule 3 of the Code would fall
within the definition of "decree" under section 2(2) of the Code.
The appellate court therefore set aside the order dated
B
31.8.1996 passed by the trial court, permitted the appellant to
be brought on record and continue the suit as legal
representative of the plaintiff and remanded the suit to trial court
under Order 41 Rule 23 of the Code for deciding the matter
on merits.
c
3. Respondents 1 and 2 filed a miscellaneous appeal
before the High Court, under Order 43 Rule 1 {u) of the Code
against the said appellate judgment. A learned Single Judge
of the Chhattisgarh High Court, by the impugned order dated
15.4.2008 allowed the said appeal and set aside the order
D
dated 28 .1 .1998 passed by the appellate court and restored
the order dated 31.8.1996 passed by the trial court. The High
Court held that the order dated 31.8.1996 of the trial court did
not amount to a decree and therefore the appeal by the
appellant before the appellate court was not maintainable. The
E
High Court held that an order can be a "decree" if it conclusively
determined the rights of parties, with regard to all or any of the
matters in controversy in the suit. The question whether
Prannath executed a will in favour of appellant and thus
appellant was a legal representative of Prannath was not an
F
issue in controversy in the suit, but arose incidentally for
determination in view of the application of appellant for being
brought on record as the legal representative of Prannath. An
order on such an application did not decide all or any of the
matters in controversy in the suit and not a 'decree' as defined
G
under Order 2(2), and therefore, only a revision would be a
remedy against such an order and not an appeal. The High
Court after holding that the appeal was not maintainable also
considered the matter on merits and held that the trial court was
justified in dismissing the application under Order 22 Rule 3
H
142
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A of the Code by holding that the will was not proved.
8
c
4. The said order of the High Court is challenged in this
appeal by special leave. The following questions arise for
consideration on the contentions urged:
(i) Whether an order of the trial court rejecting an
application filed under Order 22 Rule 3 of the Code, by a
person claiming to be the legatee under the will of the
plaintiff and consequently dismissing the suit in the
absence of any legal heir, is an appealable decree?
(ii) Whether the High Court was justified in upholding the
decision of the trial court that the will was not proved and
rejecting the application under Order 22 Rule 3 of the
Code?
D Re : Question (i)
E
F
G
H
5. Order 22 deals with death of parties. Rules 1, 3, 5 and
9 of order 22 of the Code have a bearing on the issue and
relevant portions thereof are extracted below :
"1. No abatement by party's death if right to sue
survives.-The death of a plaintiff or defendant shall not
cause the suit to abate if the right to sue survives.
3. Procedure in case of death of one of several plaintiffs
or of sole plaintiff.-( 1) Where one of two or more plaintiffs
dies and the right to sue does not survive to the surviving
plaintiff or plaintiffs alone, or a sole plaintiff or sole
surviving plaintiff dies and the right to the sue survives,
the Court, on an application made in that behalf, shall cause
the legal representative of the deceased plaintiff to be
made a party and shall proceed with the -suit.
(2) Where within the time limited by law no application is
made under sub-rule (1) the suit shall abate so far as the
deceased plaintiff is concerned, and, on the application of
MANGLURAM DEWANGAN v. SURENDRA SINGH
143
AND ORS. [R.V. RAVEENDRAN, J.]
the defendant, the Court may award to him the costs which
A
he may have incurred in defending the suit, to be recovered
from the estate of the deceased plaintiff.
5. Determination of question as to legal representative.-
Where a question arises as to whether any person is or
8
is not the legal representative of a deceased plaintiff or a
deceased defendant, such question shall be determined
by the Court: xx xx x
9. Effect of abatement or dismissal.-(1) Where a suit
abates or is dismissed under this Order, no fresh suit shall c
be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal
representative of a deceased plaintiff or the assignee or
the receiver in the case of an insolvent plaintiff may apply
. for an order to set aside the abatement or dismissal; and
D
if it is proved that he was preventeQ..by any sufficient cause
from continuing the suit, the Co}rt. shall set aside the
abatement or dismissal upon such terms as to costs or
otherwise as it thinks fit".
xxxxx
(emphasis supplied)
A combined reading of the several provisio.ns of Order 22
E
of the Code makes the following position clear:
F
(a) When the s£1e plaintiff dies and the right to sue
survives, on an application made in that behalf, the court
shall cause the legal representative of the deceased
plaintiff to be brought on record and proceed with the suit.
G
(b) If the court holds that the right to sue does not survive
on the death of the plaintiff, the suit will abate under Rule
1 of Order 22 of the Code.
(c) Even where the right to sue survives, if no application
is made for making the legal represeotative a party to the
H
A
B
c
D
E
F
G
H
144
SUPREME COURT REPORTS
(2011] 8 S.C.R.
suit, within the time limited by law (that is a period of 90
days from the date of death of the plaintiff prescribed for
making an application to make the legal representative a
party under Article 120 of the Limitation Act, 1963), the suit
abates, as per Rule 3(2) of Order 22 of the Code.
(d) Abatement occurs as a legal consequence of (i) court
holding that the right to sue does not survive; or (ii) no
application being made by any legal representative of the
deceased plaintiff to come on record and continue the suit.
Abatement is not dependant upon any formal order of the
court that the suit has abated.
(e) Even though a formal order declaring the abatement
is not necessary when the suit abates, as the proceedings
in the suit are likely to linger and will not be closed without
a formal order of the court, the court is usually to make an
order recording that the suit has abated, or dismiss the suit
by reason of abatement under Order 22 of the Code.
(f) Where a suit abates or where the suit is dismissed, any
person claiming to be the legal representative of the
deceased plaintiff may apply for setting aside the
abatement or dismissal of the suit under Order 22 Rule 9
(2) of the Code. If sufficient cause is shown, the court will
set aside the abatement or dismissal. If however such
application is dismissed, the order dismissing such an
application is open to challenge in an appeal under Order
43 Rule 1 (k) of the Code.
(g) A person claiming to be the legal representative cannot
make an application under rule 9(2) of order 22 for setting
aside the abatement or dismissal, if he had already
applied under order 22 Rule 3 for being brought on record
within time and his application had been dismissed after
an enquiry under Rule 5 of Order 22, on the ground that
he is not the legal representative.
MANGLURAM DEWANGAN v. SURENDRA SINGH
145
AND ORS. [R.V. RAVEENDRAN, J.]
6. We may next consider the remedies available to an
A
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:
B
(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).
(ii)
When the order is not a 'decree', but is an order
which is one among those enumerated in section
c
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
D
for a second appeal).
(iii)
If the order is neither a 'decree', nor an appealable
'order' enumerated in section 104 or Order 43 Rule
1, a revision would lie under section 115 of the
E
Code, if it satisfies the requirements of that section.
When a party is aggrieved by any decree or order, he can
also seek review as provided in Section 114 subject to
fulfillment of the conditions contained in that section and Order
47 Rule 1 of the Code. Be that as it may. The difference
F
between a 'decree' appealable under section 96 and an 'order'-
appealable under section 104 is that a second appeal is
available in respect of decrees in first appeals under section
96, whereas no further appeal lies from an order in an appeal
under section 104 and Order 43, Rule 1 of the Code. The
G
question for consideration in this case is whether the order
dated 31.8.1996 of the trial court dismissing an application
under Order 22 Rule 3 and consequently dismissing the suit is
an order amenable to the remedy of appeal or revision. If the
remedy is by way of appeal, the incidental question would be
H
146
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A whether it is under section 96, or under section 104 read with
Order 43, Rule 1 of the Code.
7. Section 96 of the Code provides that save where
otherwise expressly provided in the body of the Code or by any
B other law for the time being in force, an appeal shall lie from
every decree passed by any court exercising original
jurisdiction to the court authorized to hear appeals from the
decision of such court. The word 'decree' is defined under
section 2(2) of the Code thus:
C
"decree" means 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. It shall be deemed
D
to include the rejection of a plaint and the determination
of any question within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an
appeal from an order, or
E
(b) any order of dismissal for default.
Explanation.-A decree is preliminary when further
proceedings have to be taken before the suit can be
completely 'disposed of. It is final when such adjudication
F
completely disposes of the suit. It may be partly preliminary
G
and partly final;"
A reading of the definition of decree in Section 2(2) shows that
the following essential requirements should be fulfilled if an order
should be treated as a 'decree' :
(i)
there· should be an adjudication in a suit;
(ii)
the adjudication should result in a formal expression
which is conclusive so far as the court expressing
H
it;
MANGLURAM DEWANGAN v. SURENDRA SINGH
147
AND ORS. [RV. RAVEENDRAN, J.]
(iii)
the adjudication should determine the rights of A
parties with regard to all . or any of the matters in
controversy in the suit; and
(iv)
the adjudication should be one from which an
appeal does not lie as an appeal from an order B
(under section 104 and order 43 Rule 1 of the
Code) nor should it be an order dismissing the suit
for default.
(emphasis supplied)
8. There is no dispute that the order dated 31.8.1996
made on the application under Rules 3 and 5 of Order 22 of
the trial court satisfies requirements (i) and (ii). The question
c
is whether it satisfies the third and fourth requirements. We may
first consider the fourth requirement. No appeal is provided 0
against an order under Order 22 Rule 3 and 5 of the Code,
either under section 104 or Order 43 Rule 1 of the Code.
Clause (k) of Rule 1 of Order 43 of the Code however provides
that an appeal shall lie under Section 104 of the Code, from
an order under Rule 9 of Order 22 refusing to set aside the
abatement or dismissal of a suit. Sub-Rule (2) of Rule 9 of E
Order 22 permits a legal representative of a deceased plaintiff
to apply for an order to set aside the abatement or dismissal
under Order 22 of the Code. An order under Rule 9(2) refusing
to set aside an abatement or dismissal of the suit is
contemplated, only where there is abatement or dismissal under F
order 22 and an application has been made by a legal
representative to set aside such abatement or dismissal. But
where a person claiming to be the legal representative had
already filed an application under Order 22 Rule 3 within the
period of limitation, and such application has ,been dismissed G
on the ground that he is not a legal representative, there is no
question of such applicant under Order 22 Rule 3, filing an
application under Rule 9(2) for setting aside the abatement or
dismissal. An application under Rule 9(2) can be filed only if
there is abatement or dismissal under Order 22 on account of H
148
SUPREME COURT REPORTS
[2011) 8 S.C.R.
A
no application being made. Therefore when an order is passed
under Order 22 Rules 3 and 5 of the Code, dismissing an
application by a person claiming to be a legal representative
on the ground that he is not a legal representative and
consequently dismissing the suit, it will not be a dismissal under
B
Rule 9(2) of Order 22 which is amenable for an appeal under
section 104 read with Order 43 Rule 1 (k) of the Code. It
therefore follows that an order under Order 22 Rule 3 and 5 is
not appealable under section 104 or Order 43 Rule 1 of the
Code.
C
9. Having found that the order under Order dated
31.R 1996 complied with requirements (i), (ii) and (iv), what
remains to be considered is whether it fulfils requirement (iii)
also, so that it will answer the definition of decree in section
2(2) of the Code. Requirement (iii) is that the adjudication must
D determine the rights of the parties with regard to all or any of
the matters in controversy in the suit. The applicant in an
application under Order 22 Rule 3 is not a party to the suit. An
application under Order 22 Rule 3 is by a non-party requesting
the court to make him a party as the legal representative of the
E
deceased plaintiff. Necessarily unless the applicant in the
application under Order 22 Rule 3 allowed and the applicant
is permitted to come on record as the legal representative of
the deceased, he will continue to be a non-party to the suit:
When such an application by a non-party is dismissed after a
F
determination of the question whether he is a legal
representative of the deceased plaintiff, there is no adjudication
determining the rights of parties to the suit with regard to all or
any of the matters in controversy in the suit. It is determination
of a collateral issue as to whether the applicant, who is not a
G party, should be permitted to come on record as the legal
representative of the deceased. 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.
10, As the order dated 31.8.1996 is neither a 'decree'
H
appealable under section 96 of the Code nor an order
'
MANGLURAM DEWANGAN v. SURENDRA SINGH
149
AND ORS. [R.V. RAVEENDRAN, J.]
appealable under section 104 and Order 43 Rule 1, the remedy
A
of the applicant under Order 22 Rule 3, is to file a revisiott. 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 not a decree and
B
therefore the remedy of the applicant was to file a revision.
11. The appellant submitted that even if the rejection of an
application under Order 22 Rule 3 after an enquiry under Rule
5, may not amount to a decree, the consequential dismissal of
the suit on the ground that there is no legal representative, is a
C
denial of the substantive rights claimed by the plaintiff against
the defendant in the suit.