Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4923 OF 2011 [Arising out of SLP [C] No.15113 of 2008]

Mangluram Dewangan … Appellant

Vs.

Surendra Singh & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

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 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  respondents-defendants.  They  denied  the  allegation  

1

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 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 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 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 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  

2

may be recorded without delay; and that therefore the appellant was entitled  

to be impleaded as the legal representative of the deceased plaintiff.  The  

appellate court rejected the contention of the respondents-defendants that the  

appeal  was  not  maintainable.  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 would fall within the definition of “decree”  

under section 2(2) of the Code. The appellate court therefore set aside the  

order dated 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.  

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 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  High  Court  held  that  an  order  can  be  a  “decree”  if  it  conclusively  

3

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  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 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 of the Code by holding that the will was  

not proved.

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?    

4

(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?

Re : Question (i)

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 the defendant, the Court may award  to him the costs which 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  is  not  the  legal  representative  of  a  deceased  plaintiff  or  a  deceased  defendant,  such  question shall be determined by the Court:   x x x x x   

9.  Effect  of  abatement  or  dismissal.—(1)  Where  a  suit  abates  or  is  dismissed under this Order,  no fresh suit shall  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  

5

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”.  

x x x x x (emphasis supplied)

A combined reading of the several provisions of Order 22 of the Code makes  

the following position clear:  

(a) When  the  sole  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.

(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 representative a party to the 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.  

6

(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.  

6. We may next consider the 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 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:  

7

(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 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 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 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 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 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  

8

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 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 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:  

“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 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

(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  completely  disposes  of  the  suit.  It  may  be  partly  preliminary and partly final;”

9

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 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  (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 is whether it satisfies the third and  

fourth  requirements.  We  may  first  consider  the  fourth  requirement.  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 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  

1

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 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  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  

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 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.

1

9. 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 (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  

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  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 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  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.

1

10. 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 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 not a decree and 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  denial  of  the  substantive  rights  claimed by  the  

plaintiff against the defendant in the suit. This contention is clearly flawed.  

If the court orders that suit has abated or dismissed the suit as having abated,  

as a consequence of rejection of an application under Order 22 Rule 3 of the  

Code, as noticed above, 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  

a suit not as a consequence of legal representatives filing any application to  

1

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 controversy in the suit, and  

such order will be a decree. But that is not the case here. Similar contention  

raised before various High Courts  have repeatedly negatived by different  

High  Courts.  It  is  sufficient  to  refer  to  two  of  them  with  which  we  

respectfully agree.  

12. A full Bench decision of the Lahore High Court in Niranjan Nath v.   

Afzal Hussain - AIR 1916 Lahore 245 held as follows:  

“After examining the matter carefully we consider that if a court passes a  purely formal  order recognizing the abatement,  which is a  fait  accompli,  such an order,  though virtually disposing of the suit,  does not adjudicate  upon any rights, and cannot be treated as a decree. An order of this nature,  as observed already, merely records an abatement, which has already taken  place by reason of the lapse of six months*,  after the death of the plaintiff,  and does not contain any decision arrived at by the court. In a case of this  kind Order 22, Rule 9 allows the legal representative to make an application  for  the  revival  of  the  suit,  and the  only  question  the  court  is  thereupon  required  to  determine  is  whether  the  applicant  was  prevented  by  any  sufficient  cause  from  continuing  his  suit,  and  if  the  decision  is  in  the  negative, the aggrieved party is entitled to prefer an appeal against that order  under Order 43 Rule 1(k). The decision of the appellate court is, however,  made final and a second appeal is not competent.  

The language of Order 22, Rule 9(2) when carefully examined, leads us to  the conclusion that it is confined to cases in which the abatement takes place  by reason of an application not having been made within the time permitted  by law to implead the legal representative of the deceased plaintiff or the  deceased defendant, and that it has no applicability to cases in which the suit  has abated on account of some other cause. This view receives support from  the decision of the Madras High Court in Subramania Iyer v. Venkataramier  

1

(1915) 31 I.C. 4. Suppose, the sole plaintiff in a suit dies, and in spite of an   application within six months* by his legal representative the court holds   that  the  right  to  sue  does  not  survive,  and  consequently  directs  the   abatement of the suit. An abatement of this character obviously stands on a  different footing. It does no take place ipso facto. The court does not record  a merely formal order reciting a past event, as in the case of an abatement in  consequence of an application not having been made within the prescribed  period to implead the legal representative, but it exercises its mind in the  determination of a matter in controversy. The decision of the court directing  the abatement of the suit is, in our opinion, a decree, because the right to  represent the deceased is a point in controversy between the claimant and  the opposite party, and the adjudicator determines their rights with respect  thereto,  and  puts  an  end  to  the  case,  there  being  no  appeal  from  the  adjudication as an appeal from an order. An application under Rule 9 is, as  observed above, incompetent and it is difficult to believe that the Legislature  intended that the decision of a matter, which concludes the suit, should be  final and that the aggrieved party should have no remedy whatever.

(*what is referred as ‘six months’ is  three months, under Article 120 of  Limitation Act, 1963).  

(emphasis supplied)

13. In  Mitthulal vs. Badri Prasad – AIR 1981 Madh. Pradesh 1, a full  

Bench of the Madhya Pradesh High Court held as follows :  

“There seems to be a general consensus of judicial opinion that all orders  of abatement are not decrees. Only those orders of abatement are decrees  in which the Court comes to the conclusion that the right to sue does not  survive on the death of the sole plaintiff or on the death of one of the  plaintiffs to the surviving plaintiffs. The orders of abatement which follow  consequent  on  the  failure  of  the  legal  representative  of  plaintiff  to  be  brought on record within the period allowed by law or due to the Court   deciding that a particular applicant is not the legal representative, such   orders do not amount to decree. The reason being that the abatement is  automatic  consequent  on  the  failure  of  the  legal  representative  to  be  brought on record within the period of limitation and no formal order is  necessary. So there is no adjudication on the rights of the parties in the suit  or  appeal  by  such  an  order.  An  order  under  Order  22,  Rule  5  cannot  obviously be said to fall within the definition of decree for the following  reasons (i) the order is  made only for the purpose of determining who  should  continue  the  suit  as  brought  by  the  original  plaintiff.  It  is  not  intended to determine and it does not, in fact, determine the rights of the  

1

parties  with  regard  to  any  of  the  matters  in  controversy  in  suit.  The  question that arises for decision and actually decided is not one arising in  the suit itself but is one that arises in a collateral proceeding and has to be  got decided before the suit  can go on; and (ii) In order to operate as a  decree, the adjudication must be one between the parties to the original  suit  or  their  legal  representatives,  and  with  regard  to  only  matters  in  controversy between the original parties and, therefore, cannot include a  decision  of  the  question  as  to  whether  certain  individual  is  or  is  not  entitled to represent one of such parties. In cases where the Court comes to  the conclusion that the right to sue does not survive consequent on the  death of the sole plaintiff or one of the plaintiffs to the surviving plaintiffs,  there is final adjudication of the rights of the parties and the order amounts  to decree.”

(emphasis supplied)

Re: Question (ii)

14. 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  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  

statement/admission  of  the  deceased  plaintiff  himself,  established  due  

execution of the will and that the 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 under section 96 of the Code before the District  Court was not  

1

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  

finding of the first appellate court was erroneous. The 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,  

the High Court was not required to examine the matter on merits. If it chose  

to do so, it ought to have done in thoroughly, which it did not.  

Conclusion  

15. In view of the above, 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 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 period spent till  now in  bona fide litigation, shall  have to be  

excluded for purposes of limitation.

1

16. We accordingly allow this appeal in part and set aside the finding of  

the High Court on the merits of the matter. As we have upheld the finding of  

the High Court  that  the order  dated 31.8.1996 was not  a decree  and not  

appealable, we uphold the setting aside of the judgment dated 28.1.1998 of  

the appellate court, but reserve liberty to the appellant to challenge the order  

dated 31.8.1996 in revision. If a revision is filed within 90 days from today,  

the High Court will condone the delay in view of pendency of the matter till  

now.

…………………………..J. (R V Raveendran)

New Delhi; …………………………..J. July 4, 2011. (A K Patnaik)                

1