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Maria Flaviana Almeida v. Rao Bahadur Ramchandra Santaram Asavle
Factual and Procedural Background
The plaint in the suit was declared on 10 June 1936. The plaintiffs claimed from defendant No. 1 a share of costs incurred in another suit for which they alleged defendant No. 1 was liable. Defendant No. 1 died on 30 January 1937, and the plaintiffs were informed of the death on 8 February 1937. Under Article 177 of the Indian Limitation Act the plaintiffs had ninety days to bring the heirs on record, but they did not do so within that period. Consequently, under Order XXII, rule 4 of the Civil Procedure Code the suit abated.
Order XXII, rule 9(1) provides that where a suit abates no fresh suit shall be brought on the same cause of action; sub-rule (2) allows the Court to set aside the abatement if the plaintiff proves that he was prevented by sufficient cause from bringing the heirs on record within the requisite time. On 28 June 1937 the plaintiffs took out a summons to have the abatement set aside, and the learned Judge made an order setting aside the abatement. This appeal challenges that order.
Legal Issues Presented
- Whether an order setting aside an abatement under Order XXII, rule 9 of the Civil Procedure Code is a "judgment" within clause 15 of the Letters Patent and therefore appealable.
- Whether the plaintiffs proved "sufficient cause" to justify setting aside the abatement (i.e., whether the delay in bringing the heirs on record was satisfactorily explained).
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sarat Chandra Sarkar v. Maihar Stone and Lime Co., Ltd. (Court of Appeal, Calcutta) | The decision held that an order setting aside an abatement of a suit is a "judgment" under clause 15 of the Letters Patent and is appealable. | The Court acknowledged this decision as directly in point supporting the proposition that an order setting aside an abatement is a judgment; it was considered but ultimately not followed on the question of appealability in light of other considerations. |
| Maharaj Kishore Khanna v. Kiran Shashi Dasi (Court of Appeal, Calcutta) | The decision held that no appeal lies from an order under Order IX, rule 9 of the Civil Procedure Code restoring a suit. | The Court relied on the reasoning in this case to observe the close analogy between an order restoring a suit under O. IX, r. 9 and an order setting aside an abatement under O. XXII, r. 9, using it to argue against appealability of the latter. |
| The Justices of the Peace for Calcutta v. The Oriental Gas Company | Provided a classical definition of "judgment": a decision which affects the merits of the question between the parties by determining some right or liability. | The Court applied this definition to determine whether an order setting aside an abatement affects the merits. It concluded that such an order does not affect the merits (though it determines a right of procedure) and therefore falls outside the classical notion of "judgment" for appealability purposes. |
Court's Reasoning and Analysis
The Court first addressed a preliminary point: whether the order setting aside the abatement is a "judgment" within clause 15 of the Letters Patent and thus appealable. The Court considered existing authorities: one decision (Sarat Chandra Sarkar) supported appealability, while another (Maharaj Kishore Khanna) held no appeal lies from an order restoring a suit under O. IX, r. 9. The Court saw no principled distinction between restoring a suit and setting aside an abatement, since both have the effect of restoring the suit.
Turning to the classical definition of "judgment" from The Justices of the Peace for Calcutta v. The Oriental Gas Company — that a judgment is a decision affecting the merits by determining some right or liability — the Court observed that an order setting aside an abatement does not affect the merits of the dispute between the parties, although it determines a procedural right (the plaintiff's ability to continue the suit). The Court characterized the order as procedural: it excuses delay and restores the cause of action to an actionable condition rather than deciding the substantive rights between parties.
The Court then examined the statutory scheme, especially Order XLIII, rule 1, which provides for appeals under section 104 of the Code and specifically lists (k) an order under r. 9 of O. XXII refusing to set aside the abatement or dismissal of a suit as appealable. The Court noted the asymmetry: an appeal lies against a refusal to set aside an abatement (which finally disposes of the suit) but, by the statutory list, not against an order that sets aside the abatement. It considered it anomalous to hold the reverse, and on that basis concluded that no appeal lies from an order setting aside an abatement under O. XXII, r. 9.
On the merits of the application to set aside the abatement, the Chief Justice stated doubt whether the evidence satisfactorily explained the delay or showed sufficient cause, observing that rules as to time should not be lightly disregarded. However, the Chief Justice indicated that the merits point did not need to be decided for the purposes of this appeal. Justice B.J. Wadia agreed on the preliminary objection concerning appealability and added nothing further.
Holding and Implications
Holding: The Court held that no appeal lies from an order setting aside an abatement under Order XXII, rule 9 of the Civil Procedure Code. The appeal was dismissed with costs.
Implications: The direct effect of the decision is that the order of the learned Judge setting aside the abatement stands and the plaintiffs' application remains validly determined at first instance; the appeal challenging that order was dismissed. The opinion emphasizes that an order setting aside an abatement is procedural (restoring the suit) rather than a decision on the merits; the Court relied on this characterization and on the statutory appeal provisions to deny appealability. The opinion does not purport to establish broader precedent beyond the points expressly reasoned in the judgment.
Additional information appearing in the opinion: Attorneys for appellants were Messrs Dabholkar & Jestaram; attorneys for respondents were Messrs Payne & Co. The report notes that the remainder of the judgment dealing with merits is not material for the purposes of the report.
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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