Amiya Kumar Mookerji, J. - (1.)This Rule is directed against an order of the learned Additional District Judge refusing the petitioners' application under Section 151, Civil P. C., simply upon the ground that, as on appeal lay from that order in respect of which the application under Section 151 was moved, that section had no application to the case.
(2.)The petitioners are the heirs and legal representatives of late Ram Nath Shaw who died on the 16th April, 1970. The said Ram Nath Shaw was the sole appellant in Title Appeal No. 827 of 1969 in the Court of the Second Additional District Judge at Alipore. The said appeal came up for hearing on the 28th April. 1970 before the learned Judge along with two others appeals in which the said Ram Nath was not a party but the Corporation of Calcutta, the opposite party herein, was the respondent in all the appeals. In ignorance of the death of the sole appellant, the said Title Appeal along with the other appeals were heard and dismissed on the 30th April, 1970. The petitioners were unaware of the pendency of the appeal and also of its hearing and dismissal as aforesaid till they were informed on 28th July, 1970 about the same by one Pulin Behari Kundu, who was the appellant in another appeal which was heard analogously with the appeal preferred by the said Ram Nath Shaw. Thereafter the petitioners made an application before the learned Judge under Order 22. Rule 9, Civil P. C. and Section 5 of the Limitation Act for recalling the judgment and decree passed on the 30th April 1970 in Title Appeal No. 827 of 1969 and for setting aside the abatement consequent upon the death of Ram Nath Shaw and substituting the petitioners in his place and stead. Upon the said application. Miscellaneous Case No. 13 of 1970 was started in the said Court. The said Miscellaneous Case was fixed for hearing on the 6th March, 1971 and on that date, as the petitioners' Advocate was engaged in another Court, they made an application for adjournment. The learned Judge rejected the application for adjournment and dismissed the said Miscellaneous case for default neither party being present. Thereafter, the petitioners made an application on that very day for restoration of the said Miscellaneous Case under Sec. 151 of the Civil P. C. The learned Judge rejected the said application upon the view that the application under Sec. 151 was not maintainable because an order of dismissal in respect of an application under Order 22. Rule 9. Civil P. C., is an appealable order and as such. Section 151. Civil Procedure Code could not be invoked.
(3.)Under Order 43. Rule 1 (10 there is a provision of an appeal against an order under Order 22. Rule 9 of the Civil P. C., for refusing to set aside the abatement of a suit There is no provision under the Code for an appeal against an order refusing to set aside the abatement of an appeal made by the Court in the exercise of its appellate jurisdiction. Section 105. Sub-section (1) of the Civil P. C. read as follows:
"Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction ........."
It is true that a remedy is provided in the last part of Sub-section (1) of Section 105 of the Civil P. C. where any order affecting the decision of the case may be attacked by an appeal from the decree. But in the instant case the appeal had been dismissed against a dead person and obviously unless the abatement is set aside and the heirs of the deceased sole appellant are substituted, that remedy would not be available. So. In my opinion, the learned Judge has illegally exercised his jurisdiction in holding that the petitioners' application under Section 151 of the Civil P. C., is not maintainable on the ground that an appeal lay from the order in respect of which the application under Section 151 was filed.