JUDGMENT : This appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) is by the original plaintiffs who are aggrieved by the order passed by the Appellate Court rejecting the application that was filed for bringing on record the legal representatives of respondent No. 4. The appellants are also aggrieved by the order passed below Exhibit-1 by the Appellate Court disposing of the said appeal as having abated. The appellants-original plaintiffs had filed R.C.S. No. 160 of 2003 for cancellation of sale deed dated 20/04/2003 along with a prayer for permanent injunction. The trial Court dismissed the suit by judgment dated 19/04/2004. Being aggrieved, the plaintiffs filed Regular Civil Appeal No. 160 of 2010. During pendency of said appeal, the appellants learnt on 19/10/2013 the respondent No. 4 had expired on 12/08/2011. Hence, an application for bringing on record the legal representatives came to be filed. On 17/01/2014, the Appellate Court rejected said application on the ground that simlicitor application for bringing on record the legal representatives of respondent No.4 without any prayer for condoning delay was not maintainable. It therefore dismissed the said application. Thereafter a consequential order came to be passed that the appeal stood abated as the legal representatives of respondent No.4 were not brought on record. Being aggrieved by disposal of the appeal as having abated, the original plaintiffs have filed the present second appeal. 2. Shri S.K. Bhoyar, the learned counsel for respondent Nos. 2 and 3 at the outset raised a preliminary objection to the maintainability of appeal on the ground that the Appellate Court had refused to set aside the abatement of appeal against respondent No.4. Against said order, it was submitted that the remedy of appeal under provisions of Order XLIII Rule 1(k) of the Code was available. The learned counsel by placing reliance on the judgment of Honourable Supreme Court in AIR 1983 Supreme Court 676 Madan Naik (dead) by Lrs) and ors v. Mst. Hansubala Devi and ors., submitted that disposal of an appeal as having abated did not result in any decree being passed and therefore a second appeal against such adjudication was not maintainable. 3. Hansubala Devi and ors., submitted that disposal of an appeal as having abated did not result in any decree being passed and therefore a second appeal against such adjudication was not maintainable. 3. Shri S.V. Sohoni, the learned counsel for the appellants submitted that as the appeal was disposed of as having abated, the only remedy available was by way of filing an appeal under Section 100 of the Code. He submitted that as the Appellate Court did not condone the delay in bringing on record the legal representatives of respondent No.4 and rejected said application, the present appeal was maintainable. The learned counsel placed reliance on the judgment of Honourable Supreme Court in 2005 (1) MhLJ Shyam Sunder Sarma v. Pannalal Jaiswal and ors. to urge that against an order passed by the Appellate Court refusing to condone delay, the remedy by way of second appeal was available. 4. Having heard the respective counsel for the parties, the following question requires determination : “When the Appellate Court rejects an application for bringing on record the legal representatives of a deceased respondent and thereafter consequently disposes the appeal as having abated, whether a second appeal under Section 100 of the Code would be maintainable ?” Certain facts are not in dispute. During the pendency of Regular Civil Appeal No. 160 of 2010, the appellants learnt about the death of respondent No. 4 and hence an application for bringing on record the legal representatives was filed on 13/11/2013 under the provisions of Order XXII Rule 4 of the Code. This application came to be rejected by the Appellate Court by order dated 17/01/2014. The prayers made by the appellants included a prayer for setting aside the abatement and for bringing on record the legal representatives. The respondent No.4 had expired on 12/08/2011 and therefore as his legal representatives were not brought on record within a period of 90 days, the proceedings abated against the said respondent. In effect the application below Exhibit-16 was for bringing on record the legal representatives of respondent No.4 and for setting aside the abatement of the appeal. At this stage it is necessary to refer to the provisions of Order XXII Rule 11 of the Code. As per said provision, while applying Order XXII to appeals, a respondent in an appeal would stand included. At this stage it is necessary to refer to the provisions of Order XXII Rule 11 of the Code. As per said provision, while applying Order XXII to appeals, a respondent in an appeal would stand included. In view thereof provisions of Order XXII of the Code would also apply to an appeal. Reference in this regard can be made to the decision of the Nagpur High Court in Ganpat vs. Shri Maruti Sansthan, AIR 1952 Nagpur 181. Hence, the application below Exhibit-16 moved by the appellants would have to be treated as one filed under provisions of Order XXII Rule 4 read with provisions of Order XXII Rule 9(2) of the Code. 5. Under provisions of Order XLIII Rule 1(k) of the Code, an appeal is maintainable against an order refusing to set aside the abatement or dismissal of a suit. In Madan Naik (supra) a somewhat identical situation was considered by the Honourable Supreme Court and in paragraph 8 thereof it was held as under : “8. …. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 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 the first appeal, only course open is to move the Court for setting aside abatement. An order under Order 22, Rule 9(2) C.P.C. refusing to set aside abatement, is specifically appealable under Order 43, Rule 1(k). Such an adjudication if it can be so styled would not be a decree as defined in Section 2(2) C.P.C. Section 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 Order 22 Rule 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.” In view of aforesaid, it is clear that once such application filed under provisions of Order XXII Rule 9 of the Code is rejected, the remedy of an appeal under provisions of Order XLIII Rule 1(k) of the Code would be available. Such an appeal is liable to be rejected as incompetent.” In view of aforesaid, it is clear that once such application filed under provisions of Order XXII Rule 9 of the Code is rejected, the remedy of an appeal under provisions of Order XLIII Rule 1(k) of the Code would be available. The judgment of the Honourable Supreme Court in Shyam Sunder Sarma (supra) which was relied upon by the learned counsel for the appellants is with regard to the remedy available when the delay in filing an appeal under Section 96 of the Code is not condoned. In paragraph 10 of aforesaid judgment it has been observed thus : “10. …. An appeal registered under rule 9 of Order 41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.” 6. From the aforesaid, it is clear that if the delay in filing the appeal is not condoned, a second appeal under Section 100 of the Code would be maintainable. However, when the Appellate Court refuses to set aside the abatement under provisions of Order XXII Rule 9(2) of the Code and rejects such application, remedy under provisions of Order XLIII Rule 1(k) of the Code would be available. 7. In view of aforesaid, it is held that against the order passed by the Appellate Court below Exhibit-16 dated 17/01/2014 as well as the order passed below Exhibit-1 on the same day, the remedy of appeal under provisions of Order XLIII Rule 1(k) of the Code would be available to the appellants. In that view of the matter, the preliminary objection raised on behalf of respondent Nos. 2 and 3 is upheld. It is held that the second appeal against aforesaid order is not maintainable. It is open for the appellants to avail the appropriate remedy under provisions of Order XLIII Rule 1(k) of the Code. In that view of the matter, the preliminary objection raised on behalf of respondent Nos. 2 and 3 is upheld. It is held that the second appeal against aforesaid order is not maintainable. It is open for the appellants to avail the appropriate remedy under provisions of Order XLIII Rule 1(k) of the Code. It is made clear that this Court has not examined the correctness of the impugned orders. Order accordingly. No costs.