ORDER
1. A suit for recovery of Rs. 2,500/- was instituted against the appellant way back in 1968. During the trial, one of the plaintiffs-Battu Mal-died in or about 8-6-1972. His two sons the other two plaintiffs, were on record and no further steps were taken by them to bring other legal representatives on record. The trial Court vide order dated 12-7-1972 directed removal of deceased-plaintiff from index and allowed the other two plaintiffs to continue the suit. The Court decreed the suit on 17-1-1974. In appeal, learned District Judge, Kathua remanded the suit to trial Court to find out whether it had abated in terms of Order XXII(3) of CPC. Upon this, plaintiffs filed an application on 20th May, 1976 for substitution as legal representatives and on a fresh consideration of the matter, the Court held the suit to have abated as a whole after concluding that right to sue of surviving plaintiffs did not survive. Plaintiffs went in appeal against and the District Judge reversed the judgment holding that right to sue of the other two plaintiffs had survived in the facts and circumstances of the case and directed the trial Court to dispose of the suit on merit. Hence, this appeal by appellant-defendant.
2. The short and the point only canvassed that arises for consideration is whether or not the appeal before District Judge was competent?
3. Mr. LK Sharma LC for appellant is emphatic that no appeal would lie against the order of abatement recorded by the trial Court, as no such appeal was provided under Order 43 of C.P.C. He says that an appeal could lie only against an order refusing to set aside order of abatement, which could only be passed on an application to be filed by plaintiffs under Order XXII, Rule 9. Since they had made no such application and judgment of trial Court could not be treated to be an order refusing to set aside abatement, therefore, appeal before District Judge. Kathua was incompetent. According to him, it was neither a decree within the meaning of Section 2(2) and, therefore, no appeal could He against it under Section 96. He relied upon AIR 1963 All 389 and AIR 1978 Cal 274 in support of his contention.
4. Mr. R. S. Thakur, representing respondents made a two-fold under attack to show that appeal was competent. He argued that since trial Court had decided against survival of right to sue of surviving plaintiffs and had ordered the abatement of the suit as a whole, the order was not an order of abatement simpliciter, but a decree and thus appealable under Section 96, C.P.C. Taking the worst, he submitted that plaintiffs’ application dated 20-5-1976 seeking substitution of legal representatives, was in substance an application for setting aside abatement under Order XXII, Rule 9 and the order passed by the trial Court an order refusing to set aside abatement which is appealable under Order 43.
5. It is in the face of these rival contentions that I am called upon to determine whether or not plaintiffs’ appeal before District Judge was maintainable? If it can be held to be maintainable, the trial Court’s judgment will go and the suit shall proceed to be decided on merits.
6. Order XXII, Rule 3 of C.P.C, deals with procedure in case one of several plaintiffs or sole plaintiff dies. It provides that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representatives of deceased plaintiff to be made a party and shall proceed with the suit. Sub-section (2) says where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as far as deceased plaintiff is concerned. Rule 9(2) then provides that when a suit abates or is dismissed under Order XXII, the plaintiff may apply for an order to set aside the abatement or dismissal and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
7. It is well settled that if an application to bring legal representatives of deceased-plaintiff is not made within the prescribed time, the suit shall abate automatically as far as deceased-plaintiff is concerned and that no formal order giving effect to abatement takes place as a matter of course. In such a case two options become available-either to make an application seeking extension in time to bring LRs on record or to make an application under Rule 9 for setting aside the abatement on sufficient cause being shown. In the later case, there is no difficulty because Order 43 provides for an appeal against an order refusing to set aside abatement. The problem arises in the first case where the Court passes an order of abatement which is not appealable under Sections 96, 104 or Order 43, C.P.C. Though there is conflict of judicial opinion on the point, commonly acceptable view is that an application made after expiry of time to bring legal representatives of deceased plaintiff/defendant on record is in substance an application under Order 22, Rule 9, seeking to set aside of abatement and should be treated as such. This view originated from AIR 1924 Lah 424 and has been consistently followed thereafter in AIR 1928 Lah 746, AIR 1971 Punj & Har 243 and AIR 1977 Delhi 38.
8. Given regard to this legal position, plaintiffs application dated 20-5-1976 for substitution made admittedly after the prescribed period of limitation has to be treated as one for setting aside of order of abatement. That being so, the order of trial Court dated 7-12-1977 ordering abatement of a suit as a whole assumes the contours of an order refusing to set aside the abatement and this becomes appealable under Order 43 proceeding on that premises, there should be no difficulty in concluding that plaintiffs appeal before District Judge was competent.
9. Alternatively also the appeal is liable to be held maintainable. This is for the reason that an order of abatement passed on account of failure to bring LRs on record within the prescribed time or as a result that a particular applicant is not the legal representative, may not amount to a decree within the meaning of Section 2(2), C.P.C. But that can’t hold true about cases where abatement is due to the Court deciding that right to sue does not survive. In such cases, there is a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and the order amounts to a decree and becomes appealable under Section 96. Support for this can be drawn from a DB Judgment of this Court reported in AIR 1958 J & K 53, wherein it was held :–
“If the suit is ordered to abate against all the defendants, living as well as dead, in that case there is a formal adjudication made by the Court determining the right of appellants to continue the appeal against surviving respondents and it amounts to a decree and is appealable”.
In the present case also, trial Court ordered abatement of the suit against all plaintiffs on the ground that right of surviving plaintiff to sue did not survive, therefore, an appeal lies against the order of abatement as it amounted to a decree within the meaning of Section 2(2).
10. In the light of this discussion, I have no doubt in my mind that appeal against order of abatement dated 7-12-1977 was competent. Since no other point was pressed before me, this appeal fails and is hereby dismissed. Record be returned.