B. J. DIVAN, J. ( 1 ) THE appellant herein is the heir of the original creditor who had filed an application under the Saurashtra Agricultural Debtors Relief Act before the Board constituted under that Act. The application was originally filed by creditors. One Dayaram Kalubhai and others had the Act and that appeal was disposed of by the learned Assistant Judge Surendranagar on October 31 1961 Dayaram as stated above was one of the appellants in the said appeal. It subsequently came to light that Dayaram Kalubhai had expired on May 19 1961 but the fact of his death had not been brought to the notice of the learned Assistant Judge Surendranagar; and thus one of the appellants was dead at the time when the appeal was decided. No application for bringing the heirs on record had been made in time and after the decision of the appeal a Civil Revision Application was preferred by Sukhram Atmaram claiming to be the nephew and legal representative of the deceassed Dayaram along with the other persons who were co-appellants with Dayaram before the learned Assistant Judge. Sukhram Atmaram applied to the learned District Judge Surendranagar for setting aside the abatement of the appeal pointing out in his application that when the facts regarding the date of the death of Dayaram Kalubhai and the date on which the learned Assistant Judge delivered his judgment had been brought to the notice of the High Court the advocate appearing on behalf of Sukhram requested the High Court to give him time to apply to the District Court Surendranagar for setting aside the abatement of the appeal so far as Dayaram Kalubhai was concerned and it was under these circumstances that the application filed to the trial Court for setting aside the abatement and for condoning the delay in making the application which was preferred before the learned District Judge on November 12 1962 The learned District Judge dismissed the application for condoning the delay and also the application for setting aside the abatement and the present appeal from order has been filed against this decision of the learned District Judge. ( 2 ) WHEN the appeal reached hearing before me Mr. S. K. Jhaveri on behalf of the appellant was asked as to whether the order refusing to set aside the abatement of the appeal fell under Order 43 Rule 1 clause (k ). ( 2 ) WHEN the appeal reached hearing before me Mr. S. K. Jhaveri on behalf of the appellant was asked as to whether the order refusing to set aside the abatement of the appeal fell under Order 43 Rule 1 clause (k ). Clause (k) of that rule provides that an appeal shall lie from an order under Order 22 Rule 9 refusing to set aside an abatement or dismissal of a suit. It is true that under Order 22 Rule 11 provisions of Order 22 are to be applied to appeals and in such application the word plaintiff is to be held to include appellant the word defendant a respondent and the word suit an appeal. But the question still remains for consideration whether an order refusing to set aside abatement of an appeal falls within the four corners of Order 43 Rules 1 (k ). ( 3 ) THERE is a conflict of judicial opinion on the question whether an appeal lies under this clause against an order refusing to set aside abatement of an appeal. The Calcutta High Court has held in Akkas Miya v. Abdul Aziz A. I. R. 1929 Cal. 532 (2) that there is no appeal against an order under 0. 22 R. 9 refusing to set aside an abatement of an appeal and the reason for this decision is that the word suit occurring in Order 43 Rule 1 (k) does not include an appeal. The Calcutta High Court was of the opinion that there is no provision under the Code for an appeal against an order refusing to set aside the abatement of an appeal in the exercise of its appellate jurisdiction. The learned Judges of the Calcutta High Court pointed out that under sec. 105 (1) no appeal is allowed against an order such as this made by the Court in its appellate jurisdiction. Under sec. 105 (1) it has been provided:-SAVE as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction. Since there is no express provision for an appeal against an order refusing to set aside the abatement of an appeal sec. 105 (1) would clearly come into play according to the Calcutta High Court and no appeal against such an order lies. Since there is no express provision for an appeal against an order refusing to set aside the abatement of an appeal sec. 105 (1) would clearly come into play according to the Calcutta High Court and no appeal against such an order lies. ( 4 ) THE same view was taken by Beg J. in Mahboob Hasan Khan v. Bashir Husain A. I. R. 1961 Allahabad 527; where he held:-THE argument that because under Order 22 Rule 11 the word suit should be construed to include an appeal so also under Order 43 Rule 1 (k) the word suit should be interpreted to include an appeal cannot be accepted. Order 22 Rule 11 C. P. C. itself indicates that the inclusion of an appeal within the term suit under the provision of law is confined to the application of that Order only namely Order 22. Perusal of entire provisions of Order 43 would indicate that nowhere in this order any provision is made to the effect that in this Order the word suit should be interpreted to include an appeal. In the absence of such a provision in Order 43 the word suit in Order 43 Rule 1 (k) cannot be interpreted to include an appeal. Thus according to the Calcutta and the Allahabad High Courts no appeal lies against an order refusing to set aside abatement of appeal. ( 5 ) AS against this view there are two decisions of the Patna Highcourt and one decision of the Madras High Court where the contrary view has been taken. In Wajid Ali v. Pagoo Mandal A. I. R. 1938 Patna 125 it was held that an appeal lies from an order refusing to set aside abatement of an appeal; and at page 126 of the report the decision of the Calcutta High Court in Akkas Miyas case (supra) was referred to and it was held that Order 43 Rule 1 (k) must be read in reference to Order 22 Rule 11. The Patna High Court also referred to an earlier decision of that High Court in Hari Saran Singh v. Mohammad Brader Hussain A. I. R. 1925 Pat. 162; and held that such an appeal lay under Order 43 Rule 1 (k ). ( 6 ) IN Ram Ranbilaya v. Madho Turha A. I. R. 1939 Pat. The Patna High Court also referred to an earlier decision of that High Court in Hari Saran Singh v. Mohammad Brader Hussain A. I. R. 1925 Pat. 162; and held that such an appeal lay under Order 43 Rule 1 (k ). ( 6 ) IN Ram Ranbilaya v. Madho Turha A. I. R. 1939 Pat. 623 the same view was taken by another Division Bench of the Patna High Court and in that case the earlier decisions of that Court in Wajid Alis case (supra) and Hari Saran Singhs case (supra) were followed. ( 7 ) IN Raju Mudali v. Chinneraju Naidu A. I. R. 1941 Madras 51 King J. of the Madras High Court sitting singly held that the use of the word suit in clause (k) of Order 43 Rule 1 does not exclude the word appeal; and he held that the expression refusing to set aside the abatement or dismissal of a suit is merely a compendious way of referring to the provisions of Order 22 Rule 9; and hence an appeal lies from an order under Order 22 Rule 9 refusing to set aside abatement of appeal; and the learned Judge has dissented from the view of the Calcutta Highcourt in Akkas Miyas case (supra ). The learned Judge has referred to the decision of the Patna High Court and held as above. ( 8 ) WITH utmost respect to the learned Judges of the Patna High Court and the Madras High Court I am unable to accept their reasoning and I am in respectful agreement with the view taken by the Calcutta High Court and the Allahabad High Court. It is clear in my opinion that unless there is an express provision in Order 43 Rule 1 because of the provisions of sec. 105 (1) C. P. C. no appeal can lie against an order passed by an appellate Court; and there is no justification for reading the word suit occurring in Order 43 Rule like to include an appeal when the Legislature itself has not chosen to do so. 105 (1) C. P. C. no appeal can lie against an order passed by an appellate Court; and there is no justification for reading the word suit occurring in Order 43 Rule like to include an appeal when the Legislature itself has not chosen to do so. Really speaking it is only by operation of Order 22 Rule 11 that the provisions of Order 22 Rule 9 are made applicable to abatement of appeals and the Legislature in my opinion has clearly indicated in Order 43 Rule 1 that an appeal lies against an order refusing to set aside abatement of a suit as distinguished from refusing to set aside abatement of an appeal. [ The appeal then was allowed to be converted in Revision Application and was allowed on merits ]. .