MANGLURAM DEWANGAN versus SURENDRA SINGH AND ORS.

MANGLURAM DEWANGAN versus SURENDRA SINGH AND ORS.

An order dismissing an application under Order 22 Rule 3 CPC by a non-party claiming to be the legal representative after enquiry under Rule 5, and consequently dismissing the suit for lack of a legal heir, is not a decree and is not appealable under section 96; the remedy is revision under section 115 CPC. The High Court correctly held the appeal was not maintainable but erred in briefly deciding merit issues without considering all evidence.

Parties
Appellant: Mangluram Dewangan; Respondent: Surendra Singh and Ors.
Jurisdiction
India
Judgment Date
04 July 2011
Procedural Posture
Civil Appeal / Supreme Court Appeal From High Court Judgment
Outcome
Appeal partly allowed
Legal Topics
Orders and Decrees, Appeals, Revision, Legal Representatives, Abatement of Suits
Civil Procedure Orders and Decrees Appeals Revision Legal Representatives Abatement of Suits

Case Brief

Summary, issues, holding and outcome

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Parties

Mangluram Dewangan

Appellant

Surendra Singh and Ors.

Respondent

Procedural Posture

Civil Appeal / Supreme Court Appeal From High Court Judgment

Legal Issues

  1. 1 Whether an order rejecting an application under Order 22 Rule 3 CPC, by an alleged legatee for substitution as legal representative and consequently dismissing the suit, is an appealable decree.
  2. 2 Whether the High Court was justified in upholding that the Will was not proved and in rejecting the application under Order 22 Rule 3 CPC.

Ratio Decidendi

An order dismissing an application under Order 22 Rule 3 CPC by a non-party claiming to be the legal representative after enquiry under Rule 5, and consequently dismissing the suit for lack of a legal heir, is not a decree and is not appealable under section 96; the remedy is revision under section 115 CPC. The High Court correctly held the appeal was not maintainable but erred in briefly deciding merit issues without considering all evidence.

Court Disposition

Appeal partly allowed

Orders

  • Finding of High Court that appeal was not maintainable is upheld.
  • Finding of High Court that the Will was not proved and appellant was not legal representative is set aside.