The appellate companyrt rejected the companytention of the respondents defendants that the appeal was number maintainable.
An order on such an application did number decide all or any of the matters in companytroversy in the suit and number a decree as defined under Order 2 2 , and therefore, only a revision would be a remedy against such an order and number an appeal.
The trial companyrt held that the application by the appellant under Order 22 Rule 3 of the Code companyld number be entertained or accepted and companysequently in the absence of any legal heir of the plaintiff dismissed the suit.
The said application was companytested by the respondents defendants.
The appellate companyrt therefore set aside the order dated 31.8.1996 passed by the trial companyrt, permitted the appellant to be brought on record and companytinue the suit as legal representative of the plaintiff and remanded the suit to trial companyrt under Order 41 Rule 23 of the Code for deciding the matter on merits.
Respondents 1 and 2 filed a miscellaneous appeal before the High Court, under Order 43 Rule 1 u of the Code against the said appellate judgment.
Prannath died on 12.11.1994 during the pendency of the suit.
A learned Single Judge of the Chhattisgarh High Court, by the impugned order dated 15.4.2008 allowed the said appeal and set aside the order dated 28.1.1998 passed by the appellate companyrt and restored the order dated 31.8.1996 passed by the trial companyrt.
Feeling aggrieved the appellant filed an appeal in the companyrt of the V Additional District Judge, Bilaspur.
They companytended that the appellant was number the legal heir number legatee of Prannath and therefore number entitled to be added as a party, as the legal representative of the deceased plaintiff.
The said order of the High Court is challenged in this appeal by special leave.
In view of the companytest to the application, the appellant examined one Balwant who was an attesting witness to the will.
It held that the registered will was proved by examining one of the attesting witnesses that deceased Prannath himself had submitted an application in companyrt in the pending suit on 25.10.1994 referring to the execution of his will dated 10.10.1994 and praying that his evidence may be recorded without delay and that therefore the appellant was entitled to be impleaded as the legal representative of the deceased plaintiff.
The appellant filed an application under Order 22 Rule 3 of the Code of Civil Procedure Code for short on 27.1.1995 to be added and substituted as the legal representative of Prannath, claiming that he was the sole legatee under the registered will dated 10.10.1994 executed by Prannath.
The appellate companyrt allowed the appeal by order dated 28.1.1998.
It held that the order of the trial companyrt dismissing the suit as a companysequence of the rejection of the application under Order 22 Rule 3 of the Code would fall within the definition of decree under section 2 2 of the Code.
They denied the allegation that deceased plaintiff Prannath had executed any will in favour of the appellant.
After companysidering the documentary and oral evidence, the trial companyrt IV Civil Judge, Class II, Bilaspur made an order dated 31.8.1996, holding that there was numberacceptable evidence to prove the will and therefore the appellant companyld number be held to be the legal representative of the plaintiff.
V.RAVEENDRAN, J. Leave granted.
One Prannath filed a suit against the respondents for declaration, possession and damages on 4.8.1989 in regard to an immovable property.
