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Orissa High Court · body

2001 DIGILAW 10 (ORI)

Bipin Bihari Sahu v. Rajendra Kumar Sahu

2001-01-05

A.S.NAIDU, P.RAY

body2001
ORDER The present appellant Bipin Behari Sahu as plaintiff filed Title Suit No. 20 of 1993 in the Court of the Sub-ordinate Judge, Aska for partition and other reliefs against Harihar Sahu, the predecessor-in-interest of the present respondent Nos. 1 to 5 and respondents Nos. 6 to 9 (Defendant Nos. 2 to 5). During pendency of the suit Harihar Sahu, the defendant No. 1 died. The present appellant did not take any step for substituting the heirs of said Harihar Sahu. By order dated July 15, 2000, the trial Court recorded that the suit had abated against the defendants. Against the said order, the appellant has filed this present appeal. The Stamp Reporter has raised a question about maintainability of the appeal against the impugned order of abatement on the ground that the impugned order does not amount to a decree. 2. Mr. Mohanty, learned Advocate for the appellant has submitted that as the suit has been ordered to abate against all the defendants, living as well as dead, such order amounts to a decree and is appealable. Mr. Mohanty has referred to a decision of the Calcutta High Court in Sabitribai Debi v. Jugal Kishore Das and others, AIR 1938 Calcutta 639, and a decision of the Jammu & Kashmir High Court in Achhar v. Koondi and others., AIR 1958 J & K 53. 3. In Sabitribai Debi’s case (supra) it has been held : “It is contended therefore that it is not necessary for the lower Court to make an order directing that the appeals had abated. This argument however over-looks first, that the learned Judge below did choose in fact to make such an order and, second¬ly, that the order has been made not only with regard to the respondent who had died but with regard to all the respondents. It must be admitted that such an order comes within the defini¬tion of decree and as such is appealable.” 4. In Brij Jivan Lal and another v. Shiam Lal and others, AIR 1950 Allahabad 57. Allahabad High Court has referred to several earlier decisions including the decision in Sabitribai Debi and held that if entire suit abated as a result of the order of the Court such order amounted to a decree and was appealable. 5. In Brij Jivan Lal and another v. Shiam Lal and others, AIR 1950 Allahabad 57. Allahabad High Court has referred to several earlier decisions including the decision in Sabitribai Debi and held that if entire suit abated as a result of the order of the Court such order amounted to a decree and was appealable. 5. The aforesaid decision of the Allahabad High Court was followed by the Jammu & Kashmir High Court in Achhar v. Koondi (supra). It has been observed therein : “If the application to bring the legal representatives of the deceased-defendant on record is not made within the prescribed time and the suit is ordered to abate against the deceased defendant alone in that case O. 22, R. 9, Sub-rule (2) will apply and if the plaintiff shows 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. But if the Court finds that the decree is indivisible and the legal representatives of the de¬ceased defendant are not brought on record within the prescribed time and the suit is ordered to abate against all the defendants, living as well as dead, in that case there is a formal adjudica¬tion made by the Court determining the right of the appellants to continue the appeal against the surviving respondents and it amounts to a decree and so appealable as such.” 6. In the present case the suit abated against the defendant No. 1 because of the failure of the appellant (Plaintiff) to bring his heirs on record but the entire suit against other defendants stood abated only because of the impugned order of the trial Court. In such situation the views expressed in the decisions mentioned hereinabove apply and the present appeal is maintainable. Ordered accordingly.