MITTHULAL Vs. BADRI PRASAD
LAWS(MPH)-1980-8-10
HIGH COURT OF MADHYA PRADESH
Decided on August 12,1980

MITTHULAL Appellant
VERSUS
BADRI PRASAD Respondents


Referred Judgements :-

MATHURA PRASAD V. PARMANAND [REFERRED TO]
DUNI V. ARIA [REFERRED TO]
NIRANJAN NATH V. AFZAL HUSSAIN [REFERRED TO]
MT. LAXMI V. GANPAT [REFERRED TO]
MOTI LAL V. BISHAMBHAR NATH [REFERRED TO]
BRIJ INDAR SINGH V. LALA KANSHI RAM [REFERRED TO]
PURSHOTTAMDAS SAKALCHAND V. DEVKARAN KESHEOJI [REFERRED TO]
VENKATAKRISHNA V. KRISHNA [REFERRED TO]
RAMPAL SINGH V. ABDUL HAMID [REFERRED TO]
SABITRIBAI V. JUGAL KISHORE [REFERRED TO]
MOHAMMAD ZAFARVAB KHAN V. ABDUL RAZZAC KHAN [REFERRED TO]
RAJA RAMPAL SINGH V ABDUL HAMID [REFERRED TO]
SAHDEV V. VIDYAWATI [REFERRED TO]
RAMCHARAN V. HIRANAND [REFERRED TO]
DOLAI MALIKO V. KRUSHNA CHANDRA PATNAIK [REFERRED TO]
KUNWARLAL SINGH V. SMT. UMADEVI [REFERRED TO]
BHAGWAN V. VISHWANATH [REFERRED TO]
BABULAL V. JUGAL [REFERRED TO]
AIYAPPAN V. KESAVARU [REFERRED TO]
ARJUN V. BALWANT [REFERRED TO]
RADDULAL V. MAHABIR PRASAD [REFERRED TO]
DAYA RAMA VS. SHVAM SUNDARI [REFERRED TO]
N K MOHAMMAD SULAIMAN SAHIB VS. N C MOHAMMAD ISMAIL SAHEB [REFERRED TO]
RAMDASS VS. DEPUTY DIRECTOR OF CONSOLIDATION [REFERRED TO]
KATIKARA CHINTAMANI DORA VS. GUNTREDDI ANNAMANAIDU [REFERRED TO]
N JAYARAM REDDI VS. REVENUE DIVISIONAL OFFICER AND LAND ACQUISITION OFFICER KURNOOL [REFERRED TO]
BRIJ JIVAN LAL VS. SHIAM LAL [REFERRED TO]
KANAILAL MITRA VS. PANNASASHI MITRA [REFERRED TO]



Cited Judgements :-

SURENDRA KUMAR SHARMA VS. BALU [LAWS(MPH)-2023-8-150] [REFERRED TO]
JAYRAJUA (DECEASED) THROUGH LR. RAMSAJIVAN VS. DWARIKA [LAWS(MPH)-2000-1-80] [REFERRED TO]
RAMADHAR SHARMA VS. SEWARAM SHRIRAM [LAWS(MPH)-1998-5-18] [REFERRED TO]
MANGLURAM DEWANGAN VS. SURENDRA SINGH [LAWS(SC)-2011-7-85] [REFERRED TO]
ANNA TATOBA JADHAV VS. ANNA BHAU CHOUGULE [LAWS(BOM)-1981-3-7] [REFERRED TO]
CENTRAL COUNCIL RADHASOAMI SATSANG AND 21 OTHERS VS. DR. D.K. HAZRA [LAWS(ALL)-2017-2-117] [REFERRED TO]
KASHI RAM VS. BIRBAL [LAWS(MPH)-1992-11-98] [REFERRED TO]
NATTHU VS. SHIVRAM [LAWS(MPH)-1986-10-23] [REFERRED TO]
SURENDRA SINGH VS. MANGLURAM DEWANGAN [LAWS(CHH)-2008-4-20] [REFERRED TO]
SURESH TIWARI VS. SUYASH TIWARI [LAWS(CHH)-2019-9-101] [REFERRED TO]
RAMESHWARI PALIYA VS. RAAJESH KUMAR JAISWAL [LAWS(MPH)-2000-2-64] [REFERRED TO]


JUDGEMENT

C.P.Sen, J. - (1.)The following questions have been referred to the Full Bench for opinion as the questions are of general importance:-
(i) Where one part of the order is not appealable, while the other part of the same order is appealable as a decree, but the second part is followed as a necessary consequence of the former part of the order, does a revision lie from the former part?

(ii) Where it is held that by reason of some of the legal representatives of the deceased having not been brought on record, the suit cannot proceed and stands abated, will a revision lie from such order, although in the latter part of the same order, the suit is dismissed or consigned to the record?

(2.)Certain material facts are required to be stated in order to fully appreciate the questions referred The deceased plaintiff Parmabai filed a suit against the non-applicants-defendants for declaration of her title and for perpetual injunction restraining them from interfering with her possession of the property, Parmabai died on 24-10-1973. On 27-11-1973 the applicants filed an application under Order 22, Rule 3 of the Code of Civil Procedure for being substituted as legal representatives of the deceased plaintiff on the basis of a will executed in their favour by Parmabai. Though the application was opposed by the defendants, it was allowed tentatively on 28-6-1975 and the applicants were permitted to be substituted as plaintiffs in the case. However, on 28-11976 one Gendabai, claiming herself to be the daughter and sole representative of the deceased plaintiff, filed another application under Order 22, Rule 3 for being substituted in place of Parmabai. She also challenged the status of the applicants as legal representatives of the deceased plaintiff. The trial Court rejected this application as being barred by limitation and also on the ground that it is not tenable because of the triangular contest i.e. there would be two sets of plaintiffs making rival claims. Curiously enough, the trial Court also rejected the application for substitution made by the applicants which was tentatively allowed on 28-6-75 without going into the questions as to whether such a Will was made and whether the applicants are entitled to be substituted as legal representatives. The grounds for rejection are (i) that it is being 2 in one suit because apart from the claim made by the original plaintiff the Court will have to adjudicate the question regarding validity of the Will and it can be treated to be an application for probate or letters of administration. As the propounder of the Will has to disclose names of the nearest heirs of the testator and the applicants having not disclosed the names of Gendabai, daughter, and another son of the deceased plaintiff through her first husband, their application has to be rejected for non-inclusion of the necessary parties and (ii) the suit has abated under Order 22, Rule 3 (2) of the Code as the 2 legal representatives i. e. daughter and the son of the deceased plaintiff Parmabai ere not brought on record within the period of limitation. The suit having abated, it shall be consigned to the record. Against this order, revision has been preferred.
(3.)The learned single Judge found that the revision raises interesting preliminary questions apart from the merits of the case. According to him, the operative part of the order that the suit has abated amounts to a decree. He relied on Purshottamdas Sakalchand v. Devkaran Kesheoji, AIR 1939 Nag 39. If that be so, an appeal lies and the present revision may not be tenable under Section 115 of the Code. But he also observed that the second part of the order regarding abatement is consequent to the first order whereby the trial Court has rejected the application for substitution. The question is when one order is the foundation for another order which necessarily follows the former, and no appeal lies from the former part of the order, although an appeal lies from the latter part, whether revision will lie from the former part of the order. He, therefore, framed 2 questions for opinion of a larger Bench referred to above. The matter was placed before Division Bench which, looking to the general importance of the questions raised, referred the matter to the Full Bench.


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