D.R.DESHMUKH,J. - (1.)IN this Misc. Appeal, the following questions arise for determination:
(A) Whether an order dismissing the suit as having been abated for non-substitution of the legal representatives of the deceased sole plaintiff after a summary enquiry as contemplated by Order 22 (B) Rule 5, CPC is appealable ? (B) Whether the Lower Appellate Court was right in setting aside the order passed by the Trial Judge and holding that respondent No. 1/plaintiff was entitled to be substituted as legal representatives of the deceased sole plaintiff Prannath ?
Brief facts are that in Civil Suit No. 1-A of 1996 instituted on 5-8-1989 the sole plaintiff Prannath died during the pendency of the suit on 12-11-1994. The respondent No. 1 Mangluram applied for substitution under Order 22 Rule 3 of CPC on the basis of a Will executed by Prannath on 10-10-1994, which was got registered on 22-10-1994 by Prannath. The Trial Court after giving an opportunity to the parties for adducing evidence dismissed the application under Order 22 Rule 3, CPC and the suit on 31-8-1996. Being aggrieved, the respondent No. 1/plaintiff preferred Civil Appeal No. 87-A/1996, in which the Lower Appellate Court held that the order passed by the Trial Court amounted to a decree and was, therefore, appealable. It was further held that the respondent-Mangluram had prima facie proved the execution of Will in his favour by Prannath. On these grounds, it reversed the Order passed by the Trial Judge and allowed the application under Order 22 Rule 3, CPC filed by Mangluram and remanded the Civil Suit to the Trial Judge.
(2.)LEARNED Counsel for the parties were heard at length. Order 22 Rule 5, CPC is as under:
5. Determination of question as to legal representative.- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any Subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefor, an the Appellate Court may take the same into consideration in determining the question.
A reading of the above provision shows that the enquiry contemplated by Order 22 Rule 5 is summary in character even though parties are allowed to lead evidence. A decree has been defined in Section 2 Sub-clause (2) of the Code of Civil Procedure as under:
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include: (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and party final.

An order of abatement of suit on the ground that right to sue does not survive on the death of sole plaintiff is automatic consequent upon the failure of the legal representatives to be brought on record within the period of limitation and no formal order is necessary. In such a case, there is no adjudication on the rights of the parties in the suit or appeal by such an order, and therefore, such an order does not amount to a decree. On the other hand, where the Court comes to the conclusion that consequent on the death of one of the plaintiffs right to sue docs not survive to the surviving plaintiffs, there is final adjudication of the rights of the parties to suit, and therefore, such an order amounts to a decree. The question arises as to where an application for substitution is filed by a person claiming to be the legal representative of the deceased sole plaintiff on the basis of a Will executed by the deceased sole plaintiff and the Court after recording evidence and conducting a summary enquiry dismisses it on the ground that the Will is not proved, and therefore, such person is not the legal representative of the deceased sole plaintiff, such order amounts to a decree and is appealable.

(3.)IN determining whether an order of abatement is open to appeal a distinction should be drawn between those cases of abatement where it is due to the failure of the heirs being brought on the record within the period allowed by law or due to the Court deciding that a particular applicant is not the legal representative, and those cases where the abatement is due to the Court deciding that the right to sue does not survive. In the latter class of cases, there is a decree meaning thereby a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The order whereby an application under Order 22 Rule 3 is dismissed on the ground that the applicant was not the legal representative of the deceased sole plaintiff would, therefore, fall in the first category of the cases as mentioned above. The Full Bench of the Madhya Pradesh High Court in Mithulal and Ors. v. Badri Prasad and Ors. 1981 JLJ 21, has held that an order refusing substitution is not appealable. The facts in that case were that no enquiry as contemplated by Order 22 Rule 5 of CPC was conducted by the Trial Court before rejecting the application under Order 22 Rule 3 of CPC for being substituted in place of the original plaintiff on the basis of a Will. In the present case, although a summary enquiry was conducted by the Trial Judge by allowing the parties to lead evidence on the question of execution of Will by late Prannath in favour of the applicant Mangluram, a finding was recorded by the Trial Court that execution of Will in favour of Mangluram by the deceased sole plaintiff Prannath was not proved in accordance with law and on such a finding it was held that Mangluram was not the legal representative of Prannath, and therefore, not entitled to be substituted as plaintiff.
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