N.N. Mithal, J. - (1.) THIS is an appeal by the Defendants against an order passed by the lower appellate Court allowing the substitution application filed by the Plaintiff -Respondents to bring on record the legal representatives of deceased Ram Adhar.
(2.) ACCORDING to the facts disclosed in the case, suit No. 83 of 1970 was filed by the Plaintiffs -Respondents for injunction. That suit was, however, dismissed on 28.3.1974 against which appeal No. 90 of 1974 was filed. One of the Defendants -Respondents in the Court below was Munshi who died during the pendency of the appeal. His three sons were brought on record including one Ram Adhar. It is said that this Ram Adhar also died on 1.3.1977 as per the version of the Appellant before me. The Plaintiffs -Respondents, however, contend that he had died on 16.4.1977 but they remained absolutely in the dark about his death. For the first time, in early September, 1978, the fact of his death was disclosed by the Appellant's Counsel and, therefore, an application was immediately moved on 13.9.1978 along with an application for setting aside abatement and for condonation of delay in moving that application. By the impugned order, the said application has been allowed and the Court has believed the contention of the Plaintiffs -Respondents that the deceased Ram Adhar was living in another village 10 miles away and that the Plaintiffs could have no notice of his death and, therefore, they were held to have been prevented by sufficient cause from not moving an application for setting aside the abatement within time. Aggrieved by this order, some of the Defendants have come up in appeal. The first question which arises for consideration is about the very maintainability of the appeal. It was submitted that the office had initially taken an objection in this behalf at the time of admission of appeal itself but the appeal was directed to be admitted subsequently. Once again Sri. R.R. Yadav, learned Counsel appearing for the Appellants, has placed reliance on a Full Bench decision of this Court in Habibur Rahman Khan v. Pooran, 1966 AWR 226, and he relies upon a stray observation made by the Bench where it was stated that an order refusing to set aside the abatement or granting an application for setting aside the abatement has been made appealable. The said observation however, was made in a case in which that point did not at all arise for decision. A perusal of the facts of that case would reveal that one of the Defendant had died during the period when the arguments were being heard. Before the hearing of the argument finally, the surviving Defendants brought to the notice of the Court that one of the Defendants had died and the suit should be dismissed as it had abated as a whole. An objection to this application was filed and an application for substitution of legal representatives was also made. In that application, no prayer for setting aside the abatement was made, however, at a latter stage, an application for amendment of this application was made and a prayer for setting aside the abatement was also made thereunder. This application for amendment was allowed on payment of cost which was, however, not paid. When the various applications came up for orders before the trial Court, the Court held that the suit had abated against the deceased Defendant and because the nature of the relief was joint against all the Defendants, the whole suit was ordered to have abated. An appeal against this order was filed in the High Court and the matter was referred to the Full Bench as there was a conflict between two Division Benches of this Court. The only point that was urged was whether, on the facts of the case, the suit could not proceed even against the surviving Defendants was correct or incorrect ? Thus the point which had come up before the Full Bench for decision was only about the abatement of the suit only against the deceased Defendant or as a whole and no question about the maintainability of the appeal was ever canvassed before it. While considering that matter, the Full Bench was in passing making a reference to the provisions contained in the Code of Civil Procedure regarding setting aside the abatement of a suit. In this connection, the Court made the aforesaid observation. However, Order 43 Rule 1 which deals with appeal from order only provides for an appeal under Clause (b) thereof against following orders only: An order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of the suit.
(3.) IT appears that since the matter now in controversy before me was not directly involved before the Full Bench, due to some oversight the aforesaid observation has been made. The observation does not, however, show that the matter was actually considered by the Bench but shows that it was merely referring to the provisions contained in the Code of Civil Procedure. If there is obvious mistake, the said observation cannot be said to be binding and must be treated to be merely obiter dicta. In the circumstances, the appeal is not legally maintainable and is liable to be dismissed on this ground alone.;