Shree Chandrashekhar, J. - (1.) The petitioners are aggrieved of order dated 12.12.2006 passed in Title Appeal No. 17 of 1994 by which legal heirs and representatives of the original landlord have not been substituted in the pending appeal.
(2.) The petitioners are defendants in Title (Eviction) Suit No. 58 of 1989. The suit was decreed by judgment dated 16.10.1993, against which Title Appeal No. 17 of 1994 was preferred by the defendants. On dismissal of the appeal vide judgment dated 24.1996 the petitioners preferred S.A. No. 42 of 1996 which was allowed and the matter was remanded to the lower Appellate Court. After remand, during pendency of Title Appeal No. 17 of 1994, the original plaintiff-Gopal Kasera died on 25.1.200 He was the rent collector on behalf of the landlord and owner namely, Hari Bux Poddar. The petitioners filed an application under Order 22, Rule 4 C.P.C read with section 151 C.P.C for substitution of the sole respondent in Title Appeal No. 17 of 1994 through the legal heirs and representatives of the original landlord-Hari Bux Poddar. The respondent Nos. 1 and 2 who are the adopted son and daughter of the plaintiff-Gopal Kasera, claiming themselves legal heirs and successors of the original plaintiff have also filed an application under Order 22, Rule 3 (1) C.P.C for their substitution in place of the original plaintiff. By the impugned order dated 112006 the application filed by the petitioners for substitution of the original plaintiff through legal heirs and successors of the original landlord has been dismissed and the application filed by the respondents who claim themselves legal heirs and successors of the original plaintiff has been allowed.
(3.) Order 22 C.P.C provides procedure for substitution in case of death, marriage and insolvency of the parties. Rule 1 declares that death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. An order passed under Order 22, Rule 4 C.P.C or under Order 22, Rule 3 C.P.C, after an enquiry under Rule 5, is not appealable under Order 43, Rule 1, C.P.C. It is not a decree in terms of section 2 (2) C.P.C and while so, an appeal under section 96 C.P.C shall also not lie. In "Mangluram Dewangan v. Surendra Singh and Others" reported in (2011) 12 SCC 773, in identical facts the Supreme Court has observed as under: "11. We may next consider the remedies available to an applicant whose application under Order 22, Rule 3 of the Code, for being added as a party to the suit as legal representative of the deceased plaintiff, has been rejected. The normal remedies available under the Code whenever a Civil Court makes an order under the Code are as under ; (i) Where the order is a "decree" as defined under section 2 (2) of the Code, an appeal would lie under section 96 of the Code (with a provision for a second appeal under section 100 of the Code). (ii) When the order is not a "decree", but is an order which is one among those enumerated in section 104 or Rule 1 of Order 43, an appeal would lie under section 104 or under section 104 read with Order 43, Rule 1 of the Code (without any provision for a second appeal). (iii) If the order is neither a "decree", nor an appealable "order" enumerated in section 104 or Order 43, Rule 1, a revision would lie under section 115 of the Code, if it satisfies the requirements of that section." "22. Therefore, an order dismissing an application under Order 22, Rule 3 after an enquiry under Rule 5 and consequently dismissing the suit, is not a decree," "23. As the order dated 31.8.1996 is neither a "decree" appealable under section 96 of the Code nor an order appealable under section 104 and Order 43, Rule 1, the remedy of the applicant under Order 22, Rule 3, is to file a revision. The High Court was therefore, right in its view that the adjudication of the question whether an applicant in an application under Order 22, Rule 3 was a legatee under a valid Will executed by the deceased plaintiff in his favour, was not a decree and therefore the remedy of the applicant was to file a revision." ;