Beaumont, C.J:—
This is an appeal from a decision of Mr. Justice Engineer given in chambers, by which he set aside an abatement.
The material facts are that the plaint in the suit was declared on June 10, 1936, and the claim as against defendant No. 1 was for payment of a certain share of costs incurred in a suit for which the plaintiffs allege defendant No. 1 was liable to them. Defendant No. 1 died on January 30, 1937, and the plaintiffs were informed of that fact on February 8. They then had ninety days in which to bring the heirs on record under Art. 177 of the Indian Limitation Act, and they did not in fact bring the heirs on record within that time. That being so, under O. XXII, r. 4, the suit abated.
By r. 9(1) it is provided that where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. Sub-rule (2) provides that if it is proved that the plaintiff was prevented by any sufficient cause from bringing the heirs on record within the requisite time, the Court shall set aside the abatement. On June 28, 1937, a summons was taken out, asking to have the abatement set aside, and on that summons the learned Judge made the order from which this appeal is brought.
A preliminary point is taken that no appeal lies since the order is not a judgment within cl. 15 of the Letters Patent. We were referred to a decision of the Court of Appeal in Calcutta in Sarat Chandra Sarkar v. Maihar Stone and Lime Co., Ld., in which it was held that an order setting aside an abatement of a suit is a “judgment” under cl. 15 of the Letters Patent and is appealable. That is a decision directly in point in favour of the view that it is a judgment. On the other hand, in Maharaj Kishore Khanna v. Kiran Shashi Dasi,(2) the same Court held that no appeal lies from an order under O. IX, r. 9, of the Civil Procedure Code, restoring a suit. It is difficult to see any distinction in principle between an order restoring a suit under O. IX, r. 9, and an order setting aside an abatement under O. XXII, r. 9, which has the effect of restoring the suit. If the one order is a judgment within cl. 15 of the Letters Patent, I think the other must be also. The question as to what is a judgment within cl. 15 has been discussed in a great many cases in this and other Courts, and we generally go back to the classical definition in The Justices of the Peace for Calcutta v. The Oriental Gas Company(3) that “judgment” means a decision which affects the merits of the question between the parties by determining some right or liability. An order setting aside an abatement does not affect the merits of the dispute between the parties, though it certainly determines a right, because in the absence of such order the plaintiff is debarred from suing the defendant for the amount claimed. The order is really one in procedure. The plaintiffs originally had a cause of action which through no fault of their own came to an end by the death of their opponent, and the effect of setting aside the abatement is merely to excuse delay in restoring the suit to an actionable condition. There is one point which was not referred to in the Calcutta Court, and which is of very considerable importance on this question, and that is the effect of O. XLIII, r. 1. That Order provides that an appeal shall lie from certain specified orders under the provisions of s. 104 of the Code, and amongst those orders is (k) an order under r. 9 of O. XXII refusing to set aside the abatement or dismissal of a suit. So that in the case of an order refusing to set aside the abatement, the effect of which is finally to dispose of the suit, an appeal lies. But on the other hand, against an order which sets aside the abatement and thereby allows the suit to go on, no appeal lies. It would certainly be anomalous to hold that no appeal lies under the Code from an order setting aside an abatement, but that such an appeal does lie where the order is made by a Judge of the High Court in the exercise of its original jurisdiction. It is undesirable to create such an anomaly, and in my judgment we ought to hold that no appeal lies from an order setting aside an abatement under O. XXII, r. 9, of the Civil Procedure Code.
On the merits, I will only say that I much doubt whether the evidence satisfactorily explains the delay in bringing the heirs on record, or shows sufficient cause for setting aside the abatement. Rules as to time are not to be lightly disregarded. However, that point does not really arise.
The appeal must be dismissed with costs.
B.J Wadia, J. I agree on the preliminary objection that no appeal lies against the order setting aside the abatement, and have nothing further to add.
[The rest of the Judgment dealing with the merits of the case is not material for the purposes of this report.]
Attorneys for appellants: Messrs Dabholkar & Jestaram.
Attorneys for respondents: Messrs Payne & Co.
Appeal dismissed.
N.K.A
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