JUDGMENT
Brijlal Gupta, J.
1. This is a plaintiffs’ appeal filed’ against an appellate order maintaining an order of the trial Court by which the suit was declared to have abated on the ground that the sole original plaintiff Mst. Goma died and the application for substitution of the names of her heirs and legal representatives was made after the expiry of the prescribed period and no sufficient cause had been shown for condonation of delay in making the substitution application.
The history of this litigation is somewhat chequered. It appears that originally the abatement of the suit was set aside by the trial Court on 9-11-1951, and the suit was then decided on the merits and a decree was passed in due course on 30-4-1953. Against the decree of the trial court civil appeal No. 154 of 1953 was filed by the defendant. The decree was set aside in appeal and the case was remanded to the trial court for retrial after investigation of the question as to the exact date on which Mst. Goma had died. The plaintiffs’ case was that she had died on 30-4-1951 and as such the substitution application made on 28/30-7-1951 was within time. The defendant’s case on the other hand was that she had died on 24-4-1951 and as such the substitution application made on 28/30-4-1951 was beyond time and the suit had abated and the trial court had wrongly ordered the setting aside of the abatement, and in deciding the suit on the merits.
On remand the trial court went into the question and upon a consideration of the evidence of the parties held that Mst. Goma had died on 244-1951 and not on 30-4-1951 and as such since the application for substitution had been made on 28/30-7-1951 the suit had abated. It did not decide any other question in the suit. Against this order the plaintiffs went up in appeal to the lower appellate Court and the lower appellate court confirmed the finding of the trial court as regards the date of death of Mst. Goma and concurred in the order of the trial court abating the suit, and dismissed the appeal. Against the order of the lower appellate court the plaintiffs-appellants have come up in appeal to this Court.
2. A preliminary objection has been taken to the hearing of this appeal on the ground that an order declaring an appeal to have abated does not amount to a decree under Section 2 C. P. C. and is not an appealable order under Order 43, and as such no appeal lay to the lower appellate court and no second appeal lies against the order of the lower appellate court to this Court. So far as the question whether an order abating an appeal does or does not amount to a decree the matter stands concluded by decisions of this Court reported in Walayat Husain v. Ram Lal, 12 All LJ 1113 : (AIR 1914 All 402 (1) and Muhammad Ismail v. Manohar Das, 20 All LJ 214 : (AIR 1922 All 113(2)). These cases were distinguished in a subsequent case of this Court reported in Brij Jivan Lal v. Shiam Lal, AIR 1960 All 57. The main ground of distinction in this latter case was that in the earlier two cases the party who had died was a sole plaintiff or defendant: whereas in the latter case there were several parties and even though one of these parties had died the question remained to be considered whether the cause of action survived to the remaining parties arrayed on the same side. On this basis it was held that where the decision has to be arrived at about the survival of cause of action the decision in the suit amounts to a decree and does not amount merely to an order.
It follows that where upon this last quoted ruling in this case there was no decree but only an order passed by the trial Court. Under Order 43 only an order refusing to set aside the abatement is appealable. In this case as alreadv stated above the plaintiffs never asked for the setting aside of abatement. Their sole plea was that Mst. Goma having died on 30-4-1951 and an application for substitution having been made on 28/30-7-1951 the suit had never abated. Clearly, therefore, on the finding recorded by the trial Court its order was an order abating the suit and not an order refusing to set aside abatement. As such no appeal lay to the lower appellate court.
3. The fact, however, remains that an appeal was filed to the lower appellate court as from a decree and the appeal was entertained as such by that court. That being so the question arises whether where no appeal lies but an appeal is filed and is entertained, a second appeal lies against the order of the lower appellate court. There is authority of this Court reported in Raghunath Ram v. Sirtaj, AIR 1934 All 825 and 12 All LJ 1113: (AIR 1914 All 402 (1)) (supra) that in such circumstances a second appeal lies to this Court. Following the authority of these cases I overrule the preliminary objection.
4. Coming to the merits of the case the position is that the only question before the courts below was as to the date of death of Mst. Goma. That was a question of fact and the concurrent finding of both the courts below is that Mst. Goma died on 24-4-1951. The application for substitution having been made on 28/30-7-1951 the suit clearly abated and the view of the courts below to that effect was perfectly correct. It follows that on the merits there is no force in this appeal,
5. An argument has been addressed to me on the ground that originally the trial court having set aside the abatement and having decided the suit on the merits, the question of abatement of the suit could not be raised in the appeal. Against that decree the order of the lower appellate court remanding the case for retrial of the issue of abatement was without jurisdiction. I do not consider it necessary to decide this question for the reason that no appeal or revision is shown to have been filed against the remand order of the lower appellate court and it was allowed to become final. The remand order worked itself out in the retrial of the issue of abatement and the remand order cannot now be questioned.
6. No other point has been pressed in this appeal. The appeal fails and is dismissed with costs.
