Abatement and substitution under CPC: refusal to set aside abatement is appealable as an order, not by second appeal.

Under Order 22 CPC, substitution of the legal representatives of a deceased respondent is mandatory where the right to sue survives, and failure to substitute within limitation causes abatement. An order refusing to set aside abatement is not a decree, so a second appeal under Section 100 CPC does not lie; the correct remedy is the separately appealable appeal from order under Order 43 Rule 1(k). A defective or incompetent second appeal does not render the appeal from order infructuous, nor does it justify disturbing an order that found sufficient cause, set aside abatement, and allowed substitution. The appeal from order remained operative.

---

---

Issues: (i) Whether an appeal that had abated for want of substitution could give rise to a competent second appeal when the order refusing to set aside abatement was separately appealable as an appeal from order. (ii) Whether dismissal of the incompetent second appeal rendered the appeal from order infructuous and justified interference with the order allowing substitution and setting aside abatement.

Issue (i): Whether an appeal that had abated for want of substitution could give rise to a competent second appeal when the order refusing to set aside abatement was separately appealable as an appeal from order.

Analysis: Under Order 22 Rule 4 of the Code of Civil Procedure, 1908, substitution of the legal representatives of a deceased respondent is mandatory when the right to sue survives. If substitution is not made within limitation, the appeal abates. Order 22 Rule 9 permits an to set aside abatement on showing sufficient cause, and refusal of such relief is specifically appealable under Order 43 Rule 1(k) of the Code of Civil Procedure, 1908. An order refusing to set aside abatement is not a decree within Section 2(2) of the Code of Civil Procedure, 1908, and therefore Section 100 of the Code of Civil Procedure, 1908 does not permit a second appeal against it.

Conclusion: The second appeal was incompetent, and the proper remedy lay in the appeal from order.

Issue (ii): Whether dismissal of the incompetent second appeal rendered the appeal from order infructuous and justified interference with the order allowing substitution and setting aside abatement.

Analysis: The dismissal of an incompetent second appeal could not affect the merits or validity of the competent appeal from order. Once the first appellate court had erred in treating the abated appeal as dismissed on contest, that part of the order had no legal effect. The order in the appeal from order, which found sufficient cause for delay, set aside abatement, and granted substitution, remained unaffected. The Division Bench was therefore wrong in treating the appeal from order as infructuous or in holding that the existence of the second appeal altered the legal position.

Conclusion: The appeal from order remained effective, and the Division Bench's interference was unsustainable.

Final Conclusion: The challenge succeeded, the judgment of the Division Bench was set aside, and the order restoring the appeal from order was upheld.

Ratio Decidendi: An order refusing to set aside abatement is not a decree and is independently appealable as an appeal from order; an incompetent second appeal cannot render that appeal infructuous or confer jurisdiction to disturb the order passed therein.

---