ISSUE:
Whether an appeal abated under Order 22 Rule 9 of the Code of Civil Procedure, 1908 (“CPC”), precludes a second appeal under Section 100 of the CPC?
Whether the dismissal of a second appeal as incompetent impacts the validity of an appeal under Order 43 Rule 1(k) of the CPC?
RULE:
Under Order 22 Rule 9 of the CPC, an appeal abates automatically if legal representatives are not substituted within the prescribed time, unless sufficient cause is shown for the delay.
Order 43 Rule 1(k) of the CPC allows an appeal against an order refusing to set aside abatement.
As per Section 2(2) of the CPC, a decree must involve a conclusive adjudication on the merits of the case. Abatement does not amount to such adjudication.
Under Section 100 of the CPC, a second appeal is maintainable only against a decree passed in appeal by a subordinate court.