niky...... (NA) 21 March 2022

Can we file an appeal (not revision) for order which allowed setting aside abatement?

This is regarding a Civil suit. The landlord is plaintiff and we are the defendants. Original defendant died in 2019 and was immediately intimated to honourable court within 15 day and to plaintiffs. Since then prior to covid 300 days passed but plaintiff did not brought legal hires of defendant on record.

The court had put order for abatement and dismissal. But later post covid the judge changed and new one allowed to set aside the abatement order. Latest order allowed plaintiff to bring legal hires on record and did not dismiss the case. We want to challenge this decision/order, as per Limitation Act as no valid reason is there for delay.

Our lawyer and we are discussing if we want to go to higher court and file memo of appeal. But our distant relative who is also a lawyer suggested to go for revision petition instead. So we are a bit confused, if we decide to ho to higher court, which type of appeal shall we go ahead with - memo of appeal or revision petition, considering this is interm order?

Experts, kindly advise. Thank you.

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Supinder Singh 31 March 2022

From your query, I understand that you want to challenge the order of the lower court that allowed setting aside of abatement of the civil suit, in which you are the defendant. As you are already aware, such an order is an interim one and not a final decree.

As per the provisions of Code of Civil Procedure, 1908, appeals lie from only those orders that are mentioned in Order XLIII Rule 1 of the said code, along with a few more.

Order of a lower court that allows setting aside of order of abatement of a civil suit is not an appealable order under Order XLIII Rule 1 of CPC or under any other provision of the code, so you cannot successfully appeal against the order you are seeking to challenge.

Remedies available to you:

1. Challenge the non-appealable order in appeal against the final decree (See Order XLIII Rule 1A & Section 105 (1) of CPC)

You can do nothing for now and just defend the original suit and if the court passes a decree against you, then you can appeal against that decree. In that appeal, you can challenge the order which had set aside the order of abatement of suit.

2. Go for Review of the non-appealable order in the same court

Clause (b) of Section 114 of CPC clarifies that any person considering himself aggrieved by an order from which no appeal is allowed by CPC, may apply for a review of such order to the Court which made it.

3. File for Revision of the non-appealable order in the High Court

Hon’ble HC has the power to revise the order of any subordinate court, if it thinks that such lower court has acted with material irregularity (See Section 115 of the CPC). So, you can file for Revision of the order you are seeking to challenge, in the HC. Also, along with the revision petition, file an application for Stay of Suit, as filing for a revision does not automatically result in stay of suit.

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niky...... (NA) 31 March 2022

Thank you very much Supinder Singh ji for taking time to explain in depth. Much appreciate your advise.

P. Venu (Advocate) 17 April 2022

Limitation is not relevant in the instant case as the the period from 15.03.2020 till 28.02.2022 stand excluded while computing period of limitation, in terms of the directions of the Supreme Court.

So also, it is the public policy that disputes are settled amicably or settled on merits. Hence it is unlikely that the revision, as suggested, would be successful.

Attached File : 38535 20220417073437 871 2022 31 301 32501 order 10 jan 2022.pdf downloaded: 113 times