N. D. OJHA, C. J. ( 1 ) AGGRIEVED by the judgement and decree passed by the Additional Judge to the Court of District Judge, Raigarh dated 23-3-83 in C. S. No. 7-B/82, one Bimadhar preferred first appeal No. 75/83 in this Court. Bimadhar, the sole appellant, died during the pendency of the appeal, but no application was made by his L. Rs. for substitution within the period prescribed for the purpose. A belated application was, however, made by the L. Rs. of Bimadhar who are the appellant before us in the present L. P. A. for being substituted in place of Bimadhar and for setting aside the abatement. This application was rejected by a learned single Judge of this Court by his order dated 16-7-86 on the ground that no case for condonation of delay had been made out. After holding that the appeal had abated, the learned single Judge proceeded to pass an order directing the appeal to be dismissed as such. The present appeal has been preferred against this order dated 16-7-86. ( 2 ) AN objection has been raised by office that ad valorem Court-fee ought to have been paid by the appellants on the memorandum of appeal and the same not having been done and only fixed court-fee having been paid, there was deficiency in court-fees. This objection has been contested by counsel for the appellants. It is this matter which has come up for consideration before us. ( 3 ) IT has been urged by counsel for the appellants that once Bimadhar, the sole appellant, died and no application was made for substituting his L. Rs. within the prescribed period of limitation, the appeal automatically abated and the application subsequently made for setting aside the abatement having been dismissed, there was indeed no appeal which could be dismissed by the order appealed against. According to him, therefore, notwithstanding the fact that the word dismissed' has been used with reference to the appeal by the learned single Judge, the order dismissing the appeal in the circumstances of the instant case, is to be treated as non est and it cannot be said that the learned single Judge passed any decree and the appellants were required to pay ad valorem court-fees on the basis that the appeal was against a decree. ( 4 ) WE have heard counsel for the appellants. ( 4 ) WE have heard counsel for the appellants. Since the question involved was about payment of court-fees, we also heard Shri M. V. Tamasker, Addl. A. G. Having heard them, we find substance in the submissions made by counsel for the appellants. ( 5 ) A similar question arose before the Supreme Court in Madan Naik v. Mst. Hansubala Devi, AIR 1983 SC 676 . In that case, an appeal was dismissed by the First Appellate Court by the following order :"i, therefore, hold that the entire appeal has abated. It is, therefore, not necessary to hear the appeal again on merits. It is, therefore, ordered that the appeal be dismissed on contest. I do not award any cost to any party considering the circumstances of the case. "treating that order to be a decree inasmuch as it purported to dismiss the appeal even after holding that it had abated, second appeal was preferred in the High Court. First appeal from order under O. 43, R. 1 (k), C. P. C. was also preferred. The second appeal was dismissed by the learned single Judge. The first appeal from order, however, was allowed. Against the order allowing the first appeal from order, a Letters Patent Appeal was preferred and a Division Bench of the High Court held that dismissal of the second appeal would render the appeal from order infructuous. On this ground, the order of the learned single Judge was reversed by the Division Bench. The matter was then taken up before the Supreme Court. It was held by the Supreme Court that after the first Appellate Court had come to the conclusion that the entire appeal had abated, there was no occasion for dismissing the appeal on contest. It was pointed out as under :"abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in O. 22, R. 9 (1) that no fresh suit could be brought on the same cause of action. Therefore, when the appeal abated there was no decree disposing of the first appeal, only course open is to move the Court for setting a side abatement. An order under O. 22, R. 9 (2), C. P. C. refusing to set aside abatement is specifically appealable under O. 43, R. 1 (k ). Therefore, when the appeal abated there was no decree disposing of the first appeal, only course open is to move the Court for setting a side abatement. An order under O. 22, R. 9 (2), C. P. C. refusing to set aside abatement is specifically appealable under O. 43, R. 1 (k ). Such an adjudication, if it can be so styled, would not be a decree as defined in S. 2 (2), C. P. C. S. 100 provides for second appeal to the High Court from every decree passed in appeal by any Court subordinate to the High Court on the grounds therein set out. What is worthy of notice is that second appeal lies against a decree passed in appeal. An order under O. 22, R. 9 appealable as an order, would not be a decree and, therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent. " ( 6 ) IT was further observed that second appeal preferred by the original defendant, was incompetent. But the appeal from order refusing to set aside abatement, was competent. If second appeal was incompetent, its dismissal cannot have any impact on the disposal on merits of the appeal and that was rightly done by the learned single Judge. On this view, it was held that the Division Bench hearing the Letters Patent Appeal, was clearly in error in holding that the dismissal of the second appeal had rendered the appeal from order infructuous. In this connection, it was again pointed out by the Supreme Court as under :"the High Court was equally in error in holding that the second appeal was not incompetent because the first appellate Court had also made an order dismissing the appeal on contest. That part of the order of the first appellate Court was contrary to law and without jurisdiction and non est. Once the learned Judge held the appeal before him had abated. " ( 7 ) IN view of the law laid down by the Supreme Court in Madan Naik's case ( AIR 1983 SC 676 ) (supra), we are of the opinion that notwithstanding the fact that in the order appealed against, it has been stated by the learned single Judge that the appeal is "accordingly dismissed as such" the said order cannot be treated as a decree. The present L. P. A. not being against a decree, the appellants cannot obviously be required to pay ad valorem court-fees. Accordingly the court-fees already paid on the memorandum of appeal, is held to be sufficient. We are not expressing any opinion on the maintainability of the L. P. A. otherwise, inasmuch as that question is to be considered when the L. P. A. is listed for admission. Order accordingly. .