JUDGMENT Bhaskar Bhattacharya, J. Order dated December 12, 1997 passed by the learned Additional District Judge, 2nd Court, Howrah in Misc. Appeal No. 188 of 1995 is the subject matter of challenge in both the aforesaid revisional applications. 2. The fact giving rise to the aforesaid two revisional applications may be summarized thus:- (a) The predecessors-in-interest of the petitioners in C.O. No. 200 of 1998 brought against four persons in the 5th Court of Munsif, Howrah a suit being Title Suit No. 253 of 1964 for declaration of easement right and for injunction restraining those persons from interfering with such right of easement over the suit property. In the aforesaid suit, the defendant nos. 3 and 4 did not contest but the other two defendants viz. defendant nos. 1 and 2 appeared and jointly filed written statement. (b) During the pendency of the aforesaid suit defendant no. 2 died on February 4, 1980 but no application for substitution of the heirs and legal representatives of the said defendant no. 2 was filed within the period of limitation. The learned advocate of the defendants no. 1 and 2 however informed the court on December 9, 1981 that defendant no. 2 had died although the names of the heirs and legal representatives of the deceased defendant no. 2 were not disclosed. (c) The plaintiff however instead of filing an application for setting aside abatement, filed an application under Order 23 Rule 1(3) of the Code of Civil Procedure thereby praying for permission for withdraw the suit with liberty to file a fresh suit on the same subject matter. The learned Trial Judge by order dated July 30, 1984 allowed such prayer. (d) The defendant no. 1 filed a revisional application before this court under section 115 of the Code of Civil Procedure against the said order dated July 30, 1984 and the said revisional application was ultimately allowed by this court on April 6, 1989 thereby setting aside the order dated July 30, 1984. (e) Thereafter, the plaintiffs filed an application under Order 22 Rule 9 of the Code of Civil Procedure for substitution of the heirs and legal representatives of the deceased defendant no. 2 after setting aside abatement on condonation of delay. The said application gave rise to Misc. Case No. 14 of 1992. (f) The said Misc. (e) Thereafter, the plaintiffs filed an application under Order 22 Rule 9 of the Code of Civil Procedure for substitution of the heirs and legal representatives of the deceased defendant no. 2 after setting aside abatement on condonation of delay. The said application gave rise to Misc. Case No. 14 of 1992. (f) The said Misc. case as well as application under section 5 of the Limitation Act were contested by the defendant no. 1 and ultimately the learned Trial Judge by order dated August 24, 1995 dismissed the said misc. case thereby holding that the plaintiffs had failed to prove that they were prevented by sufficient ground from filing the application for substitution or the petition for setting aside abatement within the time. After such finding, the learned Trial Judge further held that in view of the nature of the allegation made in the plaint, on the death of defendant no. 2 the suit had abated not only against the said defendant but as a whole. 3. Being dissatisfied with the aforesaid order passed by the learned Trial Judge, the plaintiffs preferred a misc. appeal being Misc. Appeal No. 188 of 1995 before the learned District Judge and by the order impugned the learned First Appellate Court affirmed the order of the learned Trial Judge as regards his finding that there was no reason to condone the delay in preferring the application for substitution or setting aside abatement. However, the learned Additional District Judge set aside the order passed by the learned Trial Judge by which he recorded that the suit had abated as a whole. According to the learned First Appellate Court, whether the suit had abated as a whole should be decided in the suit itself and the learned Trial Judge acted illegally in recording such finding in a Misc. Case under Order 22 Rule 9 of the Code. 4. Being dissatisfied with the order of the learned First Appellate Court below affirming the order of the learned Trial Judge rejecting the application under Order 22 Rule 9 of the Code, the plaintiffs have preferred the revisional application being C.O. No. 200 of 1998, while the defendant no. 1 has filed C.O. No. 33 of 1998 against the order of the learned First Appellate Court setting aside the finding of the learned Trial Judge that the suit had abated as a whole. 5. After hearing Mr. 1 has filed C.O. No. 33 of 1998 against the order of the learned First Appellate Court setting aside the finding of the learned Trial Judge that the suit had abated as a whole. 5. After hearing Mr. Mukherjee appearing on behalf of the defendant no. 1 and Mr. Ghosh appearing on behalf of the plaintiffs and after going through the order impugned I find that the learned First Appellate Court below acted without jurisdiction in entertaining the said Misc. Appeal and partly setting aside the order of the learned Trial Judge and also disposing of the Misc. Appeal on merit as regards the other part of the order dealing with the application under Order 22 Rule 9 of the Code. 6. There is no dispute that an order refusing to set aside abatement of a suit is an appeal-able order but right to challenge the said order by filing a Misc. Appeal under Order 43 Rule 1 of the Code is available to a party before the disposal of the suit itself. If the suit itself is disposed of, a party is not entitled to maintain such an appeal under Order 43 Rule 1 of the Code. However, such party can impugn the said order in a regular appeal against the decree by invoking section 105 of the Code of Civil Procedure. 7. Although, an order recording abatement of a suit is not a decree but if a court on consideration of the materials on record comes to a conclusion that in view of abatement against one of the defendants the suit cannot proceed against the remaining defendant and abates as a whole, such finding conclusively determines the right of the parties and as such is a decree within the meaning of section 2(2) of the Code. In the instant case while dismissing the Misc. Case under Order 22 Rule 9 of the Code, the learned Trial Judge also found that the suit had abated as a whole. Thus, in view of such order, the suit should be treated to have been decreed notwithstanding the fact that a formal decree has not been drawn up. 8. The law is now settled that a right of appeal from interlocutory order is merged with the right of appeal from the decree even where the decree is not formally drawn up. (See Nani Bala Dasi and Anr. 8. The law is now settled that a right of appeal from interlocutory order is merged with the right of appeal from the decree even where the decree is not formally drawn up. (See Nani Bala Dasi and Anr. vs. Ichhamoyee Dasi and Ors., AIR 1925 Cal 218). 9. I am quite conscious of the position of law that in an appeal against a decree, a party can challenge the propriety of an interlocutory order passed in the suit provided such order has affected the decision of the case with reference to its merits. The consistent view of this court is that an order setting aside abatement under Order 22 Rule 9 cannot be impugned in the regular appeal against decree as such decision does not affect the merit of the case. In my opinion, the position is different in case of an order refusing to set aside abatement. (See Badri Prosad vs. Amjid Ali, AIR 1933 All 294). 10. In such a case even in an appeal against decree, the appellant is entitled to impugn the correctness of an order refusing to set aside abatement of the suit. 11. Therefore, along with the order refusing to set aside abatement, the suit itself having been decreed, the learned First Appellate Court below acted without jurisdiction in entertaining a Misc. Appeal under Order 43 Rule 1 of the Code against order refusing to set aside abatement. Therefore, the learned Additional District Judge in such a Misc. Appeal could not go into the merit of the order by affirming the finding of the learned Trial Judge and at the same time also could not set aside the order recording abatement of the suit as a whole. 12. Thus, in my opinion, the order of the learned Additional District Judge impugned in the aforesaid two revisional applications cannot be supported. He ought not to have entertained such an appeal after a decree has been passed. Consequently, the order setting aside recording of abatement of the entire suit by the learned Trial Judge is also set aside. 12. Thus, in my opinion, the order of the learned Additional District Judge impugned in the aforesaid two revisional applications cannot be supported. He ought not to have entertained such an appeal after a decree has been passed. Consequently, the order setting aside recording of abatement of the entire suit by the learned Trial Judge is also set aside. Although the learned advocates for the parties argued at length on the merit of the application under Order 22 Rule 9 of the Code of Civil Procedure and application under section 5 of the Limitation Act for condonation of delay in preferring such application, in view of my finding that the order recording abatement of the entire suit is a decree, this court cannot go into the correctness of the order of the learned Trial Judge on such question because the remedy of the aggrieved persons viz. plaintiffs lies by filing a regular appeal against such decree. Therefore, I refrain from making any comment on the merit of those applications. 13. With the above observation, Civil revisional applications are disposed of. The order passed by the learned First Appellate Court below is set aside. 14. In the facts and circumstances there will be no order as to costs. Applications disposed of.