MANGLURAM DEWANGANversusSURENDRA SINGH AND ORS.

                     [2011] 8 S.C.R. 129


                MANGLURAMDEWANGAN                                 A
                               v.
              SURENORA SINGH AND ORS.
              (Civil Appeal No. 4923 of 2011)
                        JULY 4, 2011
                                                                  B
      [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

    Code of Civil Procedure, 1908:

     s. 2(2) - Decree - Essential requirements for an order to    c
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 0
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 E
would lie uls. 115, if it satisfies the requirements of that section
- The difference between a 'decree' appealable uls.96 and an,
 'order' appealable uls.104 is that a second appeal is available
in respect of decrees in first appeals uls. 96, whereas no further
appeal fies from an order in an appeal uls. 104 and Or. 43, r. 1. F

      Or.22 r.9(2)-Appfication 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 G
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 ulr.9(2) of Or.22 which is amenable for an·
appeal u/s. 104 rlw Or. 43 r. 1(k) - It, therefore, follows that an
                             129                                  H
    130       SUPREME COURT REPORTS                 [2011) 8 S.C.R.


A 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
8   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
C   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
D   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 ulr.9(2) of Or.22 which is
E   amenable for an appeal uls. 104 rlw 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 uls.96 nor an order appealable u/s.104 and Or.43
    Rule 1 and, therefore, remedy of the appellant was to file a
F   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.
G         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.

H         Or. 22 r. 3 - Death of sole plaintiff - Application by
  MANGLURAM DEWANGAN v. SURENDRA SINGH                      131
               AND ORS.
appellant for being added as a party to the suit as legal           A
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            B
plaintiff, in pursuance of the Will - High Court, after holding
that the appeal filed by appellant uls. 96 before the District
Court was not maintainable, proceeded to consider the matte}
on merits - Held: Not proper - High Court chose to examine
the merits of the matter, in a brief and casual manner and held     c
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
                                                                    0
to examine the matter on merits - If it chose to do so, it ought
to have done it thoroughly, which it did not - Will.

     One 'P' (plaintiff) filed a suit against the respondents
for declaration, possession and damages in regard to an
immovable property. 'P' died during the pendency of the             E
suit. The appellant filed an application under Order 22
 Rule 3 of Civil Procedure Code to be added and
substituted as the legal representative of 'P' claiming to
                                       /

be the sole legatee on the basis of a registered Will.
executed by 'P'. The trial court held that there was no             F
evidence to prove the execution of.Will and, therefore, the
appellant could not be held to be the legal representative
of 'P' and dismissed the application under Order 22 Rule
3 of the Code and consequently in U1e absence of any
legal heir of 'P' dismissed the suit. f,ggrieved, the               G
appellant filed appeal. The appellate court held that
registered Will was proved by examining one of the
attesting witness. It held that the order of the trial court
dismissing the suit as a consequence of the rejection of
the application under Order 22 Rule 3 of the Code fell              H
    132     SUPREME COURT REPORTS              [2011] 8 S.C.R.


A within the definition of "decree" under section 2(2) of the
  Code. The appellate court, therefore, set aside the order
  passed by the trial court and permitted the appellant to
  be brought on record and continue the suit as legal
  representative of the plaintiff and remanded the suit to
B trial court under Order 41 Rule 23 of the Code for
  deciding the matter on merits.

          On appeal, the High Court held that the order of the
    trial court did not amount to decree and, therefore, the
    appeal before the appellate court was not maintainable.
C · It held that an order can be a "decree" if it conclusively
    determines the rights of parties, with regard to all or any
    of the matters in controversy in the suit; the question
    whether 'P' executed a Will in favour of appellant and,
    thus, appellant was a legal representative of 'P' was not
D an issue in controversy in the suit, but arose incidentally
    for determination in view of the application of appellant
    for being brought on record as the legal representative
    of 'P' and, therefore, an order on such an application did
    not decide all or any of the matters in controversy in the
E suit and was not a 'decree' as defined under Section 2(2).
    In view of that, only a revision was a rem'edy aga1nst such
    an order and not an appeal. The High Court after holding
    that the appeal was not maintainable also considered the
    matter on merits and held that the trial court was justified
F in dismissing the application under Order 22 Rule 3 of the
    Code by holding that the will was not proved.
       The questions which arose for consideration in the
  instant appeal were whether an order of the trial court
  rejecting an application filed under Order 22 Rule 3 of the
G Code, by a person claiming to be the legatee under the
  Will of the plaintiff and consequently dismissing the suit
  in the absence of any legal heir, is an appealable decree;
  and (ii) whether the High Court was justified in upholding
  the decision of the trial court that the Will was not proved
H
   MANGLURAM DEWANGAN v. SURENDRA SINGH                     133
                AND ORS.
and rejecting the application under Order 22 Rule 3 of the         A
Code ..
     Partly allowing the appeal, the Court
        HELD: 1.1. A combined reading of the several
· provisions of Order 22 of Code of Civil Procedure makes          B
  the following position clear: (a) when the sole plaintiff
  dies and the right to sue survives, on an application made
  in that behalf, the court shall cause the legal
  representative of the deceased plaintiff to be brought on
  record and proceed with the suit; (b) if the court holds         C
  that the right to sue does not survive on the death of the
  plaintiff, the suit will abate under Rule 1 of Order 22 of the
  Code; (c) even where the right to sue survives, if no
  appljcation is made for making the legal representative a
  party to the suit, within the time limited by law (that is a     o
  period of 90 days from the date of death of the plaintiff
  prescribed for making an application to make the legal
  representative a party under Article 120 of the Limitation
  Act, 1963), the suit abates, as per Rule 3(2) of Order 22 of
  the Code; (d)abatement occurs as a legal consequence             E
  of (i) court holding that the right to sue does not suryive;
  or (ii) no application being made by any legal
  representative of the deceased plaintiff to come on record
  and continue the suit. Abatement is not dependant upon
  any formal order of the court that the suit has abated; (~)
  even though a formal order declaring the abatement is not
                                                                   F
  necessary when the suit abates, as the proceedings in
  the suit are likely to linger and will not be closed without
  a formal order of the court, the court is usually to make
  an order recording that the suit has abated, or dismiss
  the suit by reason of abatement under Order 22 of the            G
  Code; (f) where a suit abates or where the suit is
  dismissed, any person claiming to be the legal
  representative of the deceased plaintiff may apply for
  setting aside the abatement or dismissal of the suit under
  Order 22 Rule 9 (2) of the Code. If sufficient cause is          H
     134     SUPREME COURT REPORTS            [2011] 8 S.C.R.


A shown, the court will set aside the abatement or
  · dismissal. If .however such application is dismissed, the
    order dismissing such an application is open to
    challenge in an appeal under Order 43 Rule 1(k) of the
    Code; (g) a person claiming to be the legal representative
s cannot make an application under rule 9(2) of order 22
    for setting aside the abatement or dismissal, if he had
    already applied under order 22 Rule 3 for being brought
    on record within time and his application had been
    dismissed after an enquiry under Rule 5 of Order 22, on
c the ground that he is not the legal representative. [Para
     5) [143-F-H; 144-A-H]
      1.2. 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
D deceased plaintiff, has been rejected.

       The normal remedies available under the Code
  whenever a civil court makes an order under the Code
  are: (i) Where the order is a 'decree' as defined under
E section 2(2) of the Code, an appeal would lie under
  section 96 of the Code (with a provisio-n 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,
F 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
G section 115 of the Code, if it satisfies the requirements
  of that section. When a party is aggrieved by any decree
  or order, he can also seek review as provided in Section
  114 subject to fulfillment of the conditions contained in
  that section and Order 47 Rule 1, CPC. The difference
  between a 'decree' appealable under section 96 and an
iH
   MANGLURAM DEWANGAN v. SURENDRA SINGH                  135
                AND ORS.

  'order' appealable under section 104 is that a second         A
. appeal is available in respect of decrees in first appeals
  under section 96, whereas no further appeal lies from an
  order in an appeal under section 104 and Order 43, Rule
  1 of the Code. Section 96 of the Code provides that save
  where otherwise expressly provided in the body of the         B
  Code or by any other law for the time being in force, an
  appeal shall lie from every decree passed by any court
  exercising original jurisdiction to the court authorized to
  hear appeals from the decisiOn of such court. [Paras 6,
  7] [145-A-H; 146-A-B]                                         C
        1.3. A reading of the definition of decree in Section
  2(2) shows that the following essential requirements
  should be fulfilled· if an order should be treated as a
  'decree': (i) there should. be an adjudication in a suit; (ii)
  the adjudicatio11 should result in a formal expression D
 .which is conclusive so far as the court expressing it; (iii)
  the adjudication should determine the rights of parties
  with regard to all or any of the matters in controversy in
  the suit; and (iv) the adjudication should be one from
  which an appeal does not lie as an appeal from an order E
  (under section 104 and order 43 Rule 1 of the Code) nor
  should it be an order dismissing the suit for default.
  There is no dispute that the order dated 31.8.1996 made
  on the application under Rules 3 and 5 of Order 22 of the
  trial court satisfies requirements (i) and (ii). The question F
  is whether it satisfies the third and fourth requirements.
  The fourth requirement is considered first. No appeal is
  provided against an order under Order 22 Rule 3 and 5
  of the Code, either under section 104 or Order 43 Rule 1
  of the Code. Clause (k) of Rule 1 of Order 43 of the Code G
· however provides that an appeal shall lie under Section
  104 of the Code, from an order under Rule 9 of Order 22
  refusing to set aside the abatement or dismissal of a suit.
  Sub-Rule (2) of Rule 9 of Order 22 permits a legal
  representative of a deceased plaintiff to apply for an order H
    136     SUPREME COURT REPORTS              [2011] 8 S C.R.


A to set aside the abatement or dismissal under Order 22
  of the Code. An order under Rule 9(2) refusing to set
  aside an abatement or dismissal of the suit is
  contemplated, only where there is abatement or dismissal
  under order 22 and an application has been made by a
B legal representative to set aside such abatement or
  dismissal. But where a person claiming to be the legal
  representative had already filed an application under
  Order 22 Rule 3 within the period of limitation, and such
  application has been dismissed on the ground that he is
c not a legal representative, there is no question of such
  applicant under Order 22 Rule 3, filing an application
  under Rule 9(2) for setting aside the abatement or
  dismissal. An application under Rule 9(2) can be filed only
  if there is abatement or dismissal under Order 22 on
  account of no application being made. Therefore, when
0
  an order is passed under Order 22 Rules 3 and 5 of the
  Code, 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 under Rule 9(2) of Order 22
E which is amenable for an appeal under section 104 read
  with Order 43 Rule 1(k) of the Code. It therefore follows
  that an order under Order 22 Rule 3 and 5 is not
  appealable under section 104 or Order 43 Rule 1, CPC
  and, therefore, requirement under clause (iv) is complied
F with. [Paras 7, 8] [146-G-H; 147-A-H; 148-A-C)

        1.4. Having found that the order under Order dated
  31.8.1996 complied with requirements (i), (ii) and (iv), what
  remains to be considered is whether it fulfils requirement
G (iii) also, so that it will answer the definition of decree in
  section 2(2) of the Code. Requirement (iii) is that the
  adjudication must determine the rights of the parties with
  regard to all or any of the matters in controversy in the
  suit. The applicant in an application under Order 22 Rule
H 3 is not a party to the suit. An application under Order 22
  MANGLURAM DEWANGAN v. SURENDRA SINGH                  137
               AND ORS.

Rule 3 is by a non-party requesting the court to make him      A
a party as the legal representative of the deceased
plaintiff. Necessarily unless the application under Order
22 Rule 3 is allowed and the applicant is permitted to
come on record as the legal representative of the
deceased, he will continue to be a non-party to the suit.      B
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     c
the suit. It is determination of a collateral issue as to
whether the applicant, who is not a party, should be
permitted to come on record as the legal representative
of the deceased. Therefore, an order dismissing an
application under Order 22 Rule 3 after an enquiry under       0
Rule 5 and consequently dismissing the suit, is not a
decree. 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      E
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. [Paras 9, 10) [148-C-H;      F
149-A-B]
     1.5. The contention that even if the rejection of an
application under Order 22 Rule 3 after an enquiry under
Rule 5, may not amount to a decree, the consequential          G
dismissal of the suit on the ground that there is no legal
representative, is a denial of the substantive rights
claimed by the plaintiff against the defendant in the suit
is clearly flawed. If the court orders that suit has abated
or dismissed the suit as having abated, as a                   H
    138      SUPREME COURT REPORTS             [2011] 8 S.C.R.


A consequence of rejection of an application under Order
  22 Rule 3 of the Code, there is no determination of rights
  of parties with regard to any of the matters in controversy
  in the suit and therefore the order is not a decree. But if
  an order declares that the suit has abated, or dismisses
B a suit not as a consequence of legal representatives filing
  any application to come on record, but in view of a finding
  that right to sue does not survive on the death of sole
  plaintiff, there is an adjudication determining the rights of
  parties in regard to all or any of the matters in
c controversy in the suit, and such order will be a decree.
  But that is not the case here. [Para 11] [149-C-F]
         Niranjan Nath v. Afzal Hussain AIR 1916 Lahore 245;
    Mitthulal vs.Badri Prasad AIR 1981 Madh. Pradesh 1 -
    referred to.
D
         2.1. The trial court concentrated upon the evidence
    of the attesting witness (Balwant) to the Will, and found
    it inadequate and therefore held that the will not proved.
    But the appellate court, in addition relied upon the fact
E   that deceased plaintiff himself, when he was alive, had
    filed an application on 25.10.1994 where he referred to the
    execution of the Will. The appellate court concluded that
    the evidence of the attesting witness when read with
    statemenUadmission of the deceased plaintiff himself,
    established due execution of the Will and that the
F   appellant was the legatee under the Will of plaintiff. Thus,
    the appellate court had given cogent reasons for
    accepting the appellant to be the legal representative of
    the deceased plaintiff, in pursuance of the Will. The High
    Court, after holding that the appeal filed by appellant
G   under section 96 of the Code before the District Court was
    not maintainable, should not have proceeded to consider
    the matter on merits. But the 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
H   finding of the first appellate court was erroneous. The
  MANGLURAM DEWANGAN v. SURENDRA SINGH                    139
               AND ORS.
High Court failed to consider all the facts and                 A
circumstances considered by the appellate court. Having
held that the appellate court could not have entertained
the appeal, the High Court was not requ1red to ex~mine
the matter on merits. If it chose to do so, it ought to ·have
done in thoroughly, which it did not. [Para 14] [152-F-H;       B
153-A-C]

    2.2. The finding of the High Court that the order dated
31.1.1996 passed by the trial court, was not appealable
is upheld. The finding of the High Court that the Will was C
not proved and therefore, the appellant was not a legal
representative is set aside as the said finding was not'
warranted without consideration of the entire evidence.
As a consequence, it will be open to the appellant to
challenge the order dated 31.8.1996 in a revision petition
before the High Court and if such a revision is filed, the D
period spent till now in bona fide litigation, shall have to
be excluded for purposes of limitation. [Para 15) (153-D-
E]
                     Case Law Reference:                        E
     AIR 1916 Lahore 245           referred to    Para 12
     AIR 1981 Madh. Pradesh 1 referred to         Para 13
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4923 of 2011.                                                   F

    From the Judgment & Order dated 15.4.2008 of the High
Court of Chhattisgarh at Bilaspur in Misc. Appeal No. 332 of
1998.
                                                                G
     S.S. Khanduja, Yash Pal Dhingra for the Appellant.

     K. Sarada Devi, Niraj Kumar Singh, V.N. Raghupathy for
the Respondents.

     The Judgment of the Court of was delivered by              H
    140       SUPREME COURT REPORTS                [2011] 8 S.C.R.


A         R.V.RAVEENDRAN, J. 1. Leave granted.
          2. One Prannath filed a suit against the respondents for
    declaration, possession and damages on 4.8.1989 in regard
    to an immovable property. Prannath died on 12.11.1994 during
    the pendency of the suit. The appellant filed an application under
8   Order 22 Rule 3 of the Code of Civil Procedure ('Code' for
    short) on 27 .1.1995 to be added and substituted as the legal
    representative of Prannath, claiming that he was the sole
    legatee under the registered will dated 10.10.1994 executed
    by Prannath. The said application was contested by the
C   respondents-defendants. They denied the allegation that
    deceased plaintiff Prannath had executed any will in favour of
    the appellant. They contended that the appellant was not the
    legal heir nor legatee of Prannath and therefore not entitled to
    be added as a party, as the legal representative of the
D   deceased plaintiff. In view of the contest to the application, the
    appellant examined one Balwant who was an attesting witness
    to the will. After considering the documentary and oral evidence,
    the trial court (IV Civil Judge, Class II, Bilaspur) made an order
    dated 31.8.1996, holding that there was no acceptable
E   evidence to prove the will and therefore the appellant could not
    be held to be the legal representative of the plaintiff. The trial
    court held that the application by the appellant under Order 22
    Rule 3 of the Code could not be entertained or accepted and
    consequently in the absence of any legal heir of the plaintiff
F   dismissed the suit.
       2. Feeling aggrieved the appellant filed an appeal in the
  court of the V Additional District Judge, Bilaspur. The appellate
  court allowed the appeal by order dated 28.1.1998. It held that
  the registered will was proved by examining one of the attesting
G witnesses; that deceased Prannath himself had submitted an
  application in court in the pending suit on 25.10.1994 referring
  to the execution of his will dated 10.10.1994 and praying that
  his evidence may be recorded without delay; and that therefore
  the appellant was entitled to be impleaded as the legal
H representative of the deceased plaintiff. The appellate court
 MANGLURAM DEWANGAN v. SURENDRA SINGH                          141
      AND ORS. [RV. RAVEENDRAN, J.]
rejected the contention of the respondents-defendants that the         A
appeal was not maintainable. If held that the order of the trial
cot.irt dismissing the suit as a consequence ofthe rejection of
the application under Order 22 Rule 3 of the Code would fall
within the definition of "decree" under section 2(2) of the Code.
The appellate court therefore set aside the order dated                B
31.8.1996 passed by the trial court, permitted the appellant to
be brought on record and continue the suit as legal
representative of the plaintiff and remanded the suit to trial court
under Order 41 Rule 23 of the Code for deciding the matter
on merits.                                                             c
      3. Respondents 1 and 2 filed a miscellaneous appeal
before the High Court, under Order 43 Rule 1{u) of the Code
against the said appellate judgment. A learned Single Judge
of the Chhattisgarh High Court, by the impugned order dated
15.4.2008 allowed the said appeal and set aside the order              D
dated 28 .1 .1998 passed by the appellate court and restored
the order dated 31.8.1996 passed by the trial court. The High
Court held that the order dated 31.8.1996 of the trial court did
not amount to a decree and therefore the appeal by the
appellant before the appellate court was not maintainable. The         E
 High Court held that an order can be a "decree" if it conclusively
 determined the rights of parties, with regard to all or any of the
 matters in controversy in the suit. The question whether
 Prannath executed a will in favour of appellant and thus
 appellant was a legal representative of Prannath was not an           F
 issue in controversy in the suit, but arose incidentally for
determination in view of the application of appellant for being
 brought on record as the legal representative of Prannath. An
order on such an application did not decide all or any of the
matters in controversy in the suit and not a 'decree' as defined       G
under Order 2(2), and therefore, only a revision would be a
remedy against such an order and not an appeal. The High
Court after holding that the appeal was not maintainable also
considered the matter on merits and held that the trial court was
justified in dismissing the application under Order 22 Rule 3          H
    142        SUPREME COURT REPORTS                 [2011] 8 S.C.R.


A   of the Code by holding that the will was not proved.

        4. The said order of the High Court is challenged in this
    appeal by special leave. The following questions arise for
    consideration on the contentions urged:
8         (i) Whether an order of the trial court rejecting an
          application filed under Order 22 Rule 3 of the Code, by a
          person claiming to be the legatee under the will of the
          plaintiff and consequently dismissing the suit in the
          absence of any legal heir, is an appealable decree?
c
          (ii) Whether the High Court was justified in upholding the
          decision of the trial court that the will was not proved and
          rejecting the application under Order 22 Rule 3 of the
          Code?

D Re : Question (i)

         5. Order 22 deals with death of parties. Rules 1, 3, 5 and
    9 of order 22 of the Code have a bearing on the issue and
    relevant portions thereof are extracted below :
E
          "1. No abatement by party's death if right to sue
          survives.-The death of a plaintiff or defendant shall not
          cause the suit to abate if the right to sue survives.

          3. Procedure in case of death of one of several plaintiffs
F         or of sole plaintiff.-( 1) Where one of two or more plaintiffs
          dies and the right to sue does not survive to the surviving
          plaintiff or plaintiffs alone, or a sole plaintiff or sole
          surviving plaintiff dies and the right to the sue survives,
          the Court, on an application made in that behalf, shall cause
G         the legal representative of the deceased plaintiff to be
          made a party and shall proceed with the -suit.

          (2) Where within the time limited by law no application is
          made under sub-rule (1) the suit shall abate so far as the
          deceased plaintiff is concerned, and, on the application of
H
 MANGLURAM DEWANGAN v. SURENDRA SINGH                        143
      AND ORS. [R.V. RAVEENDRAN, J.]
    the defendant, the Court may award to him the costs which       A
    he may have incurred in defending the suit, to be recovered
    from the estate of the deceased plaintiff.
    5. Determination of question as to legal representative.-
    Where a question arises as to whether any person is or
                                                                    8
    is not the legal representative of a deceased plaintiff or a
    deceased defendant, such question shall be determined
    by the Court: xx xx x
    9. Effect of abatement or dismissal.-(1) Where a suit
    abates or is dismissed under this Order, no fresh suit shall    c
    be brought on the same cause of action.
    (2) The plaintiff or the person claiming to be the legal
    representative of a deceased plaintiff or the assignee or
    the receiver in the case of an insolvent plaintiff may apply
  . for an order to set aside the abatement or dismissal; and D
    if it is proved that he was preventeQ..by any sufficient cause
    from continuing the suit, the Co}rt. shall set aside the
    abatement or dismissal upon such terms as to costs or
    otherwise as it thinks fit".
                                                                   E
    xxxxx
                                           (emphasis supplied)
     A combined reading of the several provisio.ns of Order 22
of the Code makes the following position clear:                     F
    (a) When the s£1e plaintiff dies and the right to sue
    survives, on an application made in that behalf, the court
    shall cause the legal representative of the deceased
    plaintiff to be brought on record and proceed with the suit.
                                                                    G
    (b) If the court holds that the right to sue does not survive
    on the death of the plaintiff, the suit will abate under Rule
    1 of Order 22 of the Code.
    (c) Even where the right to sue survives, if no application
    is made for making the legal represeotative a party to the      H
    144        SUPREME COURT REPORTS                  (2011] 8 S.C.R.


A         suit, within the time limited by law (that is a period of 90
          days from the date of death of the plaintiff prescribed for
          making an application to make the legal representative a
          party under Article 120 of the Limitation Act, 1963), the suit
          abates, as per Rule 3(2) of Order 22 of the Code.
B
          (d) Abatement occurs as a legal consequence of (i) court
          holding that the right to sue does not survive; or (ii) no
          application being made by any legal representative of the
          deceased plaintiff to come on record and continue the suit.
          Abatement is not dependant upon any formal order of the
c         court that the suit has abated.

          (e) Even though a formal order declaring the abatement
          is not necessary when the suit abates, as the proceedings
          in the suit are likely to linger and will not be closed without
D         a formal order of the court, the court is usually to make an
          order recording that the suit has abated, or dismiss the suit
          by reason of abatement under Order 22 of the Code.

          (f) Where a suit abates or where the suit is dismissed, any
          person claiming to be the legal representative of the
E
          deceased plaintiff may apply for setting aside the
          abatement or dismissal of the suit under Order 22 Rule 9
          (2) of the Code. If sufficient cause is shown, the court will
          set aside the abatement or dismissal. If however such
          application is dismissed, the order dismissing such an
F         application is open to challenge in an appeal under Order
          43 Rule 1(k) of the Code.

          (g) A person claiming to be the legal representative cannot
          make an application under rule 9(2) of order 22 for setting
G         aside the abatement or dismissal, if he had already
          applied under order 22 Rule 3 for being brought on record
          within time and his application had been dismissed after
          an enquiry under Rule 5 of Order 22, on the ground that
          he is not the legal representative.
H
  MANGLURAM DEWANGAN v. SURENDRA SINGH                          145
       AND ORS. [R.V. RAVEENDRAN, J.]
    6. We may next consider the remedies available to an                A
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:                       B

      (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).
                                                                        c
      (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       D
              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          E
              Code, if it satisfies the requirements of that section.

       When a party is aggrieved by any decree or order, he can
also seek review as provided in Section 114 subject to
fulfillment of the conditions contained in that section and Order
47 Rule 1 of the Code. Be that as it may. The difference F
between a 'decree' appealable under section 96 and an 'order'-
appealable under section 104 is that a second appeal is
available in respect of decrees in first appeals under section
96, whereas no further appeal lies from an order in an appeal
under section 104 and Order 43, Rule 1 of the Code. The G
question for consideration in this case is whether the order
dated 31.8.1996 of the trial court dismissing an application
under Order 22 Rule 3 and consequently dismissing the suit is
an order amenable to the remedy of appeal or revision. If the
remedy is by way of appeal, the incidental question would be H
    146           SUPREME COURT REPORTS               [2011] 8 S.C.R.


A whether it is under section 96, or under section 104 read with
  Order 43, Rule 1 of the Code.

          7. Section 96 of the Code provides that save where
  otherwise expressly provided in the body of the Code or by any
B other law for the time being in force, an appeal shall lie from
  every decree passed by any court exercising original
  jurisdiction to the court authorized to hear appeals from the
  decision of such court. The word 'decree' is defined under
  section 2(2) of the Code thus:

C         "decree" means the formal expression of an adjudication
          which, so far as regards the Court expressing it,
          conclusively determines the rights of the parties with
          regard to all or any of the matters in controversy in the suit
          and may be either preliminary or final. It shall be deemed
D         to include the rejection of a plaint and the determination
          of any question within section 144, but shall not include -

          (a) any adjudication from which an appeal lies as an
          appeal from an order, or

E         (b) any order of dismissal for default.

          Explanation.-A decree is preliminary when further
          proceedings have to be taken before the suit can be
          completely 'disposed of. It is final when such adjudication
F         completely disposes of the suit. It may be partly preliminary
          and partly final;"

    A reading of the definition of decree in Section 2(2) shows that
    the following essential requirements should be fulfilled if an order
    should be treated as a 'decree' :
G
           (i)     there· should be an adjudication in a suit;

           (ii)    the adjudication should result in a formal expression
                   which is conclusive so far as the court expressing
H                  it;
 MANGLURAM DEWANGAN v. SURENDRA SINGH                       147
      AND ORS. [RV. RAVEENDRAN, J.]
      (iii)   the adjudication should determine the rights of A
              parties with regard to all .or any of the matters in
              controversy in the suit; and

      (iv)    the adjudication should be one from which an
              appeal does not lie as an appeal from an order        B
              (under section 104 and order 43 Rule 1 of the
              Code) nor should it be an order dismissing the suit
              for default.

                                            (emphasis supplied)
                                                                    c
      8. There is no dispute that the order dated 31.8.1996
made on the application under Rules 3 and 5 of Order 22 of
the trial court satisfies requirements (i) and (ii). The question
is whether it satisfies the third and fourth requirements. We may
first consider the fourth requirement. No appeal is provided
                                                                    0
against an order under Order 22 Rule 3 and 5 of the Code,
either under section 104 or Order 43 Rule 1 of the Code.
Clause (k) of Rule 1 of Order 43 of the Code however provides
that an appeal shall lie under Section 104 of the Code, from
an order under Rule 9 of Order 22 refusing to set aside the
abatement or dismissal of a suit. Sub-Rule (2) of Rule 9 of         E
Order 22 permits a legal representative of a deceased plaintiff
to apply for an order to set aside the abatement or dismissal
under Order 22 of the Code. An order under Rule 9(2) refusing
to set aside an abatement or dismissal of the suit is
contemplated, only where there is abatement or dismissal under      F
order 22 and an application has been made by a legal
representative to set aside such abatement or dismissal. But
where a person claiming to be the legal representative had
already filed an application under Order 22 Rule 3 within the
period of limitation, and such application has ,been dismissed      G
on the ground that he is not a legal representative, there is no
question of such applicant under Order 22 Rule 3, filing an
application under Rule 9(2) for setting aside the abatement or
dismissal. An application under Rule 9(2) can be filed only if
there is abatement or dismissal under Order 22 on account of        H
    148       SUPREME COURT REPORTS                 [2011) 8 S.C.R.

A   no application being made. Therefore when an order is passed
    under Order 22 Rules 3 and 5 of the Code, 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 under
B   Rule 9(2) of Order 22 which is amenable for an appeal under
    section 104 read with Order 43 Rule 1(k) of the Code. It
    therefore follows that an order under Order 22 Rule 3 and 5 is
    not appealable under section 104 or Order 43 Rule 1 of the
    Code.
C         9. Having found that the order under Order dated
    31.R 1996 complied with requirements (i), (ii) and (iv), what
    remains to be considered is whether it fulfils requirement (iii)
    also, so that it will answer the definition of decree in section
    2(2) of the Code. Requirement (iii) is that the adjudication must
D   determine the rights of the parties with regard to all or any of
    the matters in controversy in the suit. The applicant in an
    application under Order 22 Rule 3 is not a party to the suit. An
    application under Order 22 Rule 3 is by a non-party requesting
    the court to make him a party as the legal representative of the
E   deceased plaintiff. Necessarily unless the applicant in the
    application under Order 22 Rule 3 allowed and the applicant
    is permitted to come on record as the legal representative of
    the deceased, he will continue to be a non-party to the suit:
    When such an application by a non-party is dismissed after a
F   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. It is determination
    of a collateral issue as to whether the applicant, who is not a
G   party, should be permitted to come on record as the legal
    representative of the deceased. 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.
       10, As the order dated 31.8.1996 is neither a 'decree'
H   appealable under section 96 of the Code nor an order
                     '

  MANGLURAM DEWANGAN v. SURENDRA SINGH                         149
       AND ORS. [R.V. RAVEENDRAN, J.]
appealable under section 104 and Order 43 Rule 1, the remedy           A
of the applicant under Order 22 Rule 3, is to file a revisiott. 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 not a decree and       B
therefore the remedy of the applicant was to file a revision.

     11. The appellant submitted that even if the rejection of an
application under Order 22 Rule 3 after an enquiry under Rule
5, may not amount to a decree, the consequential dismissal of
the suit on the ground that there is no legal representative, is a     C
denial of the substantive rights claimed by the plaintiff against
the defendant in the suit. This contention is clearly flawed. If the
court orders that suit has abated or dismissed the suit as
having abated, as a consequence of rejection of an application
under Order 22 Rule 3 of the Code, as noticed above, there is          D
no determination of rights of parties with regard to any of the
matters in controversy in the suit and therefore the order is not
a decree. But if an order declares that the suit has abated, or
dismisses a suit not as a consequence of legal representatives
filing any application to come on record, but in view of a finding     E
that right to sue does not survive on the death of sole plaintiff,
there is an adjudication determining the rights of parties in
regard to all or any of the matters in controversy in the suit, and
such order will be a decree. But that is not the case here.
Similar contention raised before various High Courts have              F
repeatedly negatived by different High Courts. It is sufficient to
refer to two of them with which we respectfully agree.

     12. A full Bench decision of the Lahore High Court in
Niranjan Nath v. Afzal Hussain - AIR 1916 Lahore 245 held              G
as follows:

     "After examining the matter carefully we consider that if a
     court passes a purely formal order recognizing the
                           a
     abatement, which is fait accompli, such an order, though
     virtually disposing of the suit, does not adjudicate upon         H
    150        SUPREME COURT REPORTS                (2011] 8 S.C.R.


A         any rights, and cannot be treated as a decree. An order
          of this nature, as observed already, merely records an
          abatement, which has already taken place by reason of the
          lapse of six months*, after the death of the plaintiff, and
          does not contain any decision arrived at by the court. In a
B         case of this kind Order 22, Rufe 9 allows the legal
          representative to make an application for the revival of the
          suit, and the only question the court is thereupon required
          to determine is whether the applicant was prevented by
          any sufficient cause from continuing his suit, and if the
c         decision is in the negative, the aggrieved party is entitled
          to prefer an appeal against that order under Order 43 Rule
          1(k). The decision of the appellate court is, however, made
          final and a second appeal is not competent.

          The language of Order 22, Rule 9(2) when carefully
D         examined, leads us to the conclusion that it is confined to
          cases in which the abatement takes place by reason of
          an application not having been made within the time
          permitted by law to implead the le~al representative of the
          deceased plaintiff or the deceased defendant, and that it
E         has no applicability to cases in which the suit has abated
          on account of some other cause. This view receives
          support from the decision of the Madras High Court in
          Subramania Iyer v. Venkataramier (1915) 31 l.C. 4.
          Suppose, the sole plaintiff in a suit dies, and in spite of
F         an application within six months* by his legal
          representative the court holds that the right to sue does
          not survive, and consequently directs the abatement of
          the suit. An abatement of this character obviously stands
          on a different footing. It does no take place ipso facto. The
G         court does not record a merely formal order reciting a past
          event, as in the case of an abatement in consequence of
          an application not having been made within the prescribed
          period to implead the legal representative, but it exercises
          its mind in the determination of a matter in controversy. The
H         decision of the court directing the abatement of the suit is,
  MANGLURAM DEWANGAN v. SURENDRA SINGH                          151
       AND ORS. [R.V. RAVEENDRAN, J.]

    in our opinion, a decree, because the right to represent           A
    the deceased is a point in controversy between the
    claimant and the opposite party, and the adjudicator
    determines their rights with respect thereto, and puts an
    end to the case, there being no appeal from the
    adjudication as an appeal from an order. An application            B
    under Rule 9 is, as observed above, incompetent and it
    is difficult to believe that the Legislature intended that the
    decision of a matter, which concludes the suit, should be
    final and that the aggrieved party should have no remedy
    ~~w~                                                               c
    (*what is referred as 'six months' is three months, under
    Article 120 of Limitation Act, 1963).

                                             (emphasis supplied)
                                                                       D
     13. In Mitthulal vs. Badri Prasad - AIR 1981 Madh.
Pradesh 1, a full Bench of the Madhya Pradesh High Court held
as follows:

    "There seems to be a general consensus of judicial opinion
    that all orders of abatement are not decrees. Only those           E
     orders of abatement are decrees in which the Court comes
     to the conclusion that the right to sue does not survive on
     the death of the sole plaintiff or on the death of one of the
     plaintiffs to the surviving plaintiffs. The orders of abatement
     which follow consequent on the failure of the legal               F
     representative of plaintiff to be brought on record within
     the period allowed by law or due to the Court deciding
   · that a particular applicant is not the legal representative,
     such orders do not amount to decree. The reason being
     that the abatement is automatic consequent on the failure         G
     of the legal representative to be brought on record within
     the period of limitation and no formal order is necessary.
     So there is no adjudication on the rights of the parties in
    the suit or appeal by such an order. An order under Order
     22, Rule 5 cannot obviously be said to fall within the            H
    152      SUPREME COURT REPORTS                     [2011) 8 S.C.R.


A        definition of decree for the following reasons (i) the order
         is made only for the purpose of determining who should
         continue the suit as brought by the original plaintiff. It is not
         intended to determine and it does not, in fact, determine
         the rights of the parties with regard to any of the matters
B        in controversy in suit. The question that arises for decision
         and actually decided is not one arising in the suit itself but
         is one that arises in a collateral proceeding and has to be
         got decided before the suit can go on; and (ii) In order to
         operate as a decree, the adjudication must be one
c        between the parties to the original suit or their legal
         representatives, and with regard to only matters in
         controversy between the original parties and, therefore,
         cannot include a decision of the question as to whether
         certain individual is or is not entitled to represent one of
         such parties. In cases where the Court comes to the
D
         conclusion that the right to sue does not survive
       · consequent on the death of the sole plaintiff or one of the
         plaintiffs to the surviving plaintiffs, there is final adjudication
         of the rights of the parties and the order amounts to
         decree."
E
                                                   (emphasis supplied)

    Re: Question (ii)

        14. The trial court concentrated upon the evidence of the
F attesting witness (Balwant) to the will, and found it inadequate
  ·and therefore held that the will not proved. But the appellate
   court, in addition relied upon the fact that deceased plaintiff
   himself, when he was alive, had filed an application on
   25.10.1994 where he referred to the execution of the will. The
G appellate court concluded that the evidence of the attesting
   witness when read with statement/admission of the deceased
   plaintiff himself, established due execution of the will and that
   the appellant was the legatee under the will of plaintiff. Thus,
   the appellate court had given cogent reasons for accepting the
H appellant to be the legal representative of the deceased
  MANGLURAM DEWANGAN v. SURENDRA SINGH                           153
       AND ORS. [R.V. RAVEENDRAN, J.]
plaintiff, in pursuance of the will. The High Court, after holding      A
that the appeal filed by appellant under section 96 of the Code
before the District Court was not maintainable, should not have
proceeded to consider the matter on merits. But the 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      B
and finding of the first appellate court was erroneous. The 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, the High
Court was not required to examine the matter on merits. If it           c
chose to do so, it ought to have done in thoroughly, which it did
not.
Conclusion
      15. In view of the above, the finding of the High Court that
the order dated 31.1.1996 passed by the trial court, was not            D
appealable is upheld. The finding of the High Court that the will
was not proved and therefore, the appellant was not a legal
representative is set aside as the said finding was not
warranted without consideration of the entire evidence. As a
consequence, it will be open to the appellant to challenge the          E
order dated 31.8.1996 in a revision petition before the High
Court and if such a revision is filed, the period spent till now in
bona fide litigation, shall have to be excluded for purposes of
limitation.
                                                                        F
       16. We accordingly allow this appeal in part and set aside
 the finding of the High Court on the merits of the matter. As we
 have upheld the finding of the High Court that the order dated
 31.8.1996 was not a decree and not appealable, we uphold
 the setting aside of the judgment dated 28.1.1998 of the
·appellate court, but reserve liberty to the appellant to challenge     G
 the order dated 31.8.1996 in revision. If a revision is filed within
 90 days from today, the High Court will condone the delay in
 view of pendency of the matter till now.
D.G.                                       Appeal partly allowed.       H