NDLI: Mangluram Dewangan Vs. Surendra Singh and Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Code of Civil Procedure 1908
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Code of Civil Procedure, 1908 (5 of 1908)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Code of Civil Procedure, 1908:s. 2(2) - Decree - Essential requirements for an order to be treated as decree - Discussed.ss.2(2), 96, 104, 115, Or.43 r.1 - Decree and appealable order - Distinction between - Held: Where the order is a 'decree' as defined u/s.2(2), an appeal would He u/s.96 (with a provision for a second appeal uls.100) - When the order is not a 'decree', but is an order which is one among those enumerate in s. 104 or r. 1 of Or. 43, an appeal would lie u/ s. 104 or u/s. 104 r/w Or. 43, r. 1 (without any provision for a second appeal) - If the order is neither a 'decree', nor an appealable 'order' enumerated in s.104 or Or.43 r. 1, a revision would lie u/s. 115, if it satisfies the requirements of that section - The difference between a 'decree' appealable u/s.96 and an 'order' appealable u/s.104 is that a second appeal is available in respect of decrees in first appeals u/s. 96, whereas no further appeal lies from an order in an appeal u/s. 104 and Or. 43, r. 1. Or.22 r.9(2)-Application u/Or.22, r.9(2) can be filed only if there is abatement or dismissal u/Or.22 on account of no application being made - When an order is passed u/Or.22 ff.3 and 5 dismissing an application by a person claiming to be a legal representative on the ground that he is not a legal representative and consequently dismissing the suit, it will not be a dismissal u/r.9(2) of Or.22 which is amenable for an appeal u/s. 104 r/w Or. 43 r. 1 (k) - It, therefore, follows that an order u/Or.22 rr.3 and 5 is not appealable u/s.104 or Or.43 r.1. s. 115; Or. 22 r. 3 - Death of sole plaintiff - Application by appellant u/Or. 22 r. 3, for being added as a party to the suit as legal representative of the deceased plaintiff - Rejected by trial court and consequently suit dismissed ir, the absence of any legal heir - Remedy available to the appellant - Held: Remedy available with the appellant was to file a revision and not appeal - Appellant in an application u/Or.22 r.3 was not party to the suit - When such an application by a non-party is dismissed after a determination of the question whether he is a legal representative of the deceased plaintiff, there is no adjudication determining the rights of parties to the suit with regard to all or any of the matters in controversy in the suit - Therefore, an order dismissing an application u/Or.22 r.3 after an enquiry u/r.5 and consequently dismissing the suit, is not a decree - Moreover when an order passed u/Or. 22 rr. 3 and 5 dismissing an application on the ground that the applicant is not a legal representative and consequently dismissing the suit, it will not be a dismissal u/r.9(2) of Or.22 which is amenable for an appeal u/s. 104 r/w Or. 43 r. 1 (k) - It therefore follows that an order u/ Or.22 rr.3 and 5 is not appealable u/ s.104 or Or.43 r.1 - Trial court's order is neither a 'decree' appealable u/s.96 nor an order appealable u/s.104 and Or.43 Rule 1 and, therefore, remedy of the appellant was to file a revision - Revision. Or. 22 r. 3 - Death of sole plaintiff - Effect on continuation of suit when right to sue survives and when the right to sue does not survive - Discussed. Or. 22 r. 3 - Remedies available to an applicant whose application u/Or.22 Rule 3, for being added as a party to the suit as legal representative of the deceased plaintiff is rejected- Discussed.Or. 22 r. 3 - Death of sole plaintiff - Application by appellant for being added as a party to the suit as legal representative of the deceased plaintiff on the basis of Will - Trial court held that. Will was not proved - But appellate court held that appellant duly proved the execution of the Will - Appellate court gave cogent reasons for accepting the appellant to be the legal representative of the deceased plaintiff, in pursuance of the Will - High Court, after holding that the appeal filed by appellant u/s. 96 before the District Court was not maintainable, proceeded to consider the matter on merits - Held: Not proper - High Court chose to examine the merits of the matter, in a brief and casual manner and held that the finding of the trial court was preferable and finding of the first appellate court was erroneous - High Court failed to consider all the facts and circumstances considered by the appellate court - Having held that the appellate court could not have entertained the appeal, High Court was not required to examine the matter on merits - If it chose to do so, it ought to have done it thoroughly, which it did not - Will.
Judge	Hon'ble Mr. Justice R.V. Raveendran
Neutral Citation	2011 INSC 428
Petitioner	Mangluram Dewangan
Respondent	Surendra Singh And Ors.
SCR	[2011] 8 S.C.R. 129
Judgement Date	2011-07-04
Case Number	4923

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