The time deciding the maintainability of the appeal in civil suit shall be decided solely on the provisions of CPC and the facts of the said case- High Court of Karnataka.
In this case the appeal was disposed of after hearing the learned counsel for the parties by dictating orders in the open Court. The plaintiff, Smt. Parvathamma has filed the suit in O.S.No.168/2009 (originally numbered as O.S.No.151/2000) for declaration that she is the absolute owner of the land and for possession with other consequential relief of mandatory injunction. Smt.Parvathamma, who had examined herself as, has died during the pendency of the suit. The appellant, who asserts that she is the wife of, the brother of her husband had for leave to come on record as the legal representative. This case was decided in KALLAMMA VS PREMAMMA (REGULAR FIRST APPEAL NO. 11 OF 2012)by the single bench THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD
The civil Court has allowed this application and when this order is impugned before this Court in W.P.No.2097/2010, the order dated 22.12.2019 is quashed and IA is restored for reconsideration after necessary enquiry. The petitioner has examined herself and two other witnesses.
The Counsel for the petitioner stated that on appreciation of the evidence on record, has rejected the application and the present appeal is filed calling in question the said order. The Hon’ble Supreme Court in Mangluram Dewangan v. Surendra Singh and Others supra while considering the question whether an order of the trial Court rejecting an application filed under Order XII of the Code of Civil Procedure by a person claiming as legatee and consequentially dismissing the suit in the absence of any legal representative would be an appealable decree, has concluded that such order would not be a decree as contemplated under the Code of Civil Procedure against which an appeal would lie under Order XLIII Rule 1 of CPC.
The counsel for the respondent stated 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 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. When such an application by a non-party is dismissed after a determination of the question.
After noting the facts and arguments of both the parties the High Court of Karnataka , “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 favor, was not a decree and therefore, the remedy of the applicant was to file a revision” The learned counsels for the parties in the light of this decision submit in unison that the appellant can be permitted to convert this ‘Regular First Appeal’ into a ‘Revision Petition’ Therefore, the appellant is permitted to convert this ‘Regular First Appeal’ into a ‘Revision Petition’. The learned counsel for the appellant shall take necessary steps in this regard within four weeks from today. For the statistical purposes, the appeal stands disposed of”
Judgement Reviewed by Pratikshya Pattnaik