- (1.) This revision application is filed by Ajit Kumar Chatterjee and six (6) others challenging the legality, correctness and propriety of the order dated 15.11.2006 passed by the learned Additional District Judge, Howrah in Misc. Appeal no. 16 of 2004 thereby affirming the order dated 23.12.2003 passed by the learned Civil Judge, Junior Division, 5th Court, Howrah in Misc. Case no. 3 of 2002 arising out of Title Suit No. 161 of 1986.
(2.) The Title Suit No. 116 of 1986 was instituted by the present petitioners against Tarapada Chatterjee, since deceased, the predecessor-in-interest of the opposite parties herein in the 5th Court of learned Civil Judge, (Junior Division), Howrah. Tarapada Chatterjee contested the suit by filing written statement. He died on 3.1.2001. Before his death, he filed a revisional application being C.O. No. 920 of 2000 against an order passed by the learned Trial Court while allowing an application under Order 6 Rule 17 of the Code of Civil Procedure. In that revision application before this Court, one Krishna Chatterjee was added to as defendant/petitioner. Since Tarapada died and was not substituted by his legal representatives within the prescribed period of time, the suit abated as a whole. THE present petitioners filed an application under Order 22 Rule 9 read with Section 151 of the Civil Procedure Code together with a petition under Section 5 of the Limitation Act praying for setting aside the abatement of the suit. That petition was registered as Misc. Case no. 3 of 2002. THE learned Court by his order dated 23.12.2003, dismissed the Misc. case. THE petitioners preferred an appeal against that order in the Court of learned District Judge, Howrah which was ultimately disposed of by the learned Additional District Judge, 2nd Court, Howrah. THE learned Additional District Judge by his order dated 15.11.2006 dismissed the Misc. Appeal no. 16 of 2004. Being dissatisfied with and aggrieved by the said order, this application under Article 227 of the Constitution of India has been filed by the present petitioner on the following grounds :- a) that the learned Appellate Court failed to exercise its jurisdiction properly; b) that the learned Court erred in holding that the petitioners were supposed to filed regular appeal in stead of appeal under order 43 Rule 1 of the Code; c) that the learned Court was oblivious of the fact that the suit was not abated as a whole because of substitution of deceased Tarapada by one Krishna Chatterjee in C.O. no. 920 of 2000 and; d) that the learned Court failed to consider that the petitioner had sufficient cause for not filing the petition for substitution within the prescribed period; THE petitioners' claimed setting aside of the order impugned. Sri Asit Bhattacharya, the learned Counsel appearing for the petitioner contended that there was delay of 44/45 days in filing the petition which could have been condoned by the learned Court and the order of abatement ought to have been set aside by the learned Court to extend dispensation of justice. He contended that because of abatement of the suit, the petitioners as plaintiffs are not in a position to file a suit afresh. In fact, they are non-suited. One Krishna Chatterjee is brought on record. The learned Court ought to have considered that factual aspect because the right of the defendant on record i.e. Krishna Chatterjee for no fault on her part , has been jeopardised. Mr. Somnath Roy Chowdhury, learned Counsel for the opposite parties made a fair submission. He contended that the petitioners could have filed a regular appeal against the order of dismissal of the prayer of setting aside of abatement in stead of filing the Misc. Appeal under order 43 Rule 1 of the Code. He submitted that the learned Appellate Court dismissed the Misc. Appeal basing on a decision of this Court. In view of that decision of this Court, the learned Appellate Court has rightly dismissed the Misc. Appeal and this Court, in exercising its jurisdiction under Article 227, can not interfere into that findings.
(3.) It is settled principle of law that if the right to sue does not survive to the surviving defendant alone and the legal representatives of the deceased defendant are not brought on record by an application within prescribed time, the suit shall in the first instance a bate so far as the deceased defendant is concerned. In the case at hand Tarapada was the sole defendant in the Title Suit No. 116 of 1986. Admittedly Tarapada died on 3.8.2001. The present petitioners were informed about his death on 11.12.2001. By this time the suit was abated as a whole because no legal representative was brought on record in place of Tarapada and, therefore, the suit could not be proceeded against any defendant because of abatement of the suit as a whole. The suit, therefore, Virtually decreed and must be considered to have determined the rights between the parties within the meaning of Section 2(2) of the Code. The order refusing to set aside abatement when the suit itself having been decreed, a Misc. Appeal under Order 43 Rule 1 of the Code can not be entertained. I find substance in the contention of Mr. Ray Chowdhury. It finds support from the decision referred to above. It was held : "That an order refusing to set aside abatement of a suit is an appealable order but right to challenge the said order by filing a Misc. Appeal under Order 43 Rule 1 of the Code is available to a party before the disposal of the suit itself. If the suit itself is disposed of, a party is not entitled to maintain such an appeal under Order 43 Rule 1 of the Code. However, such party can impugn the said order in a regular appeal against the decree by invoking section 105 of the Code of Civil Procedure." An order recording abatement of a suit is not a decree but if a court on consideration of the materials on record comes to a conclusion that in view of abatement against one of the defendants the suit cannot proceed against the remaining defendant and abates a whole, such finding conclusively determines of section 2(2) of the Code. "The order refusing to set aside abatement, the suit itself having been decreed, the learned First Appellate Court below acted without jurisdiction in entertaining a Misc. Appeal under Order 43 Rule 1 of the Code against order refusing to set aside abatement. Therefore, the learned Additional District Judge in such a Misc. Appeal could not go into the merit of the order by affirming the finding of the learned Trial Judge and at the same time also could not set aside the order recording abatement of the suit as a whole.";