Does abatement allow a second appeal under Section 100 CPC?

No. Abatement is not a decree on merits. So, a second appeal under Section 100 is not maintainable.

Is an appeal under Order 43 Rule 1(k) still valid if a second appeal is dismissed?

Yes. The O.43 R.1(k) appeal against refusal to set aside abatement remains valid and can be decided.

What error did the first appellate court make?

It dismissed the appeal ‘on contest’ after holding it abated. That was without jurisdiction and invalid.

What does Order 22 Rule 9 CPC say?

An appeal abates if legal representatives are not substituted in time, unless the delay is excused for sufficient cause.

What is a decree under Section 2(2) CPC?

A formal expression of a conclusive adjudication on rights. Abatement is not such an adjudication.

madan-naik-v-hansubala-devi-air-1983-sc-676

Madan Naik v. Hansubala Devi — Abatement, Second Appeal & O.43 R.1(k)

Author: Gulzar Hashmi India CASE_TITLE: Madan Naik v. Hansubala Devi PRIMARY_KEYWORDS: abatement, second appeal, O.43 R.1(k) SECONDARY_KEYWORDS: O.22 R.9, S.2(2) CPC, jurisdiction PUBLISH_DATE: 22 Oct 2025 Slug: madan-naik-v-hansubala-devi-air-1983-sc-676

Quick Jump

Summary Issues Rules Facts Arguments Judgment Ratio Why It Matters Key Takeaways Mnemonic IRAC Glossary FAQs Related

Hero image for Madan Naik v. Hansubala Devi case explainer

Quick Summary

The Court clarified three things. One: Abatement for not substituting legal heirs is not a decree on merits. Two: So, a second appeal (S.100 CPC) does not lie from such abatement. Three: An appeal under O.43 R.1(k) against refusal to set aside abatement is valid and can continue.

O.22 R.9 O.43 R.1(k) S.100 CPC AIR 1983 SC 676

Issues

Does abatement under Order 22 Rule 9 bar a second appeal under Section 100 CPC?
Does dismissing a second appeal as incompetent affect an appeal under Order 43 Rule 1(k)?

Rules

O.22 R.9 CPC: Appeal abates if legal heirs are not substituted in time, unless delay is excused.
O.43 R.1(k) CPC: Appeal lies against refusal to set aside abatement.
S.2(2) CPC: A decree is a conclusive decision on merits. Abatement is not such a decision.
S.100 CPC: Second appeal is only from a decree passed in appeal by a subordinate court.

Facts — Timeline

Trial: Suit for declaration and possession decreed for Respondents.

First appeal: Dismissed; trial decree affirmed.

Second appeal filed: During hearing, it emerged a Respondent died during first appeal; substitution needed.

Remand: High Court sent matter to first appellate court to decide substitution/abatement.

Error below: First appellate court held abatement but also said appeal dismissed “on contest”—beyond jurisdiction.

O.43 R.1(k) appeal: Filed against refusal to set aside abatement. Single Judge allowed substitution; second appeal dismissed as incompetent.

Division Bench: Reversed Single Judge, saying O.43 appeal was infructuous.

Supreme Court: Restored Single Judge order; clarified abatement and appeals.

Timeline illustration for Madan Naik v. Hansubala Devi

Arguments

Appellants

Abatement is not a decree; second appeal cannot lie.
Order refusing to set aside abatement is appealable under O.43 R.1(k).
First appellate court’s “on contest” dismissal after abatement is without jurisdiction.

Respondents

Second appeal should stand, making O.43 appeal infructuous.
Delay/substitution defects justify maintaining abatement.

Judgment

Held: The first appellate court could not dismiss the appeal “on contest” after declaring abatement; that part was void.

Abatement is not a decree under S.2(2) CPC; therefore, a second appeal under S.100 does not lie. The O.43 R.1(k) appeal was competent and survived; the Division Bench erred in setting aside the Single Judge.

Judgment illustration for Madan Naik v. Hansubala Devi

Ratio Decidendi

Abatement ≠ decree; second appeal under S.100 CPC is not maintainable.
Appeal under O.43 R.1(k) against refusal to set aside abatement is maintainable and independent.

Why It Matters

Students learn to separate procedural defaults (abatement) from merits-based decrees. This guides the correct appeal path and prevents filing the wrong remedy.

Key Takeaways

Abatement orders are procedural, not decrees.
No S.100 second appeal from abatement.
Use O.43 R.1(k) to challenge refusal to set aside abatement.

Mnemonic + 3-Step Hook

Mnemonic: “NOT A DECREE — NO S.100 — TRY O.43.”

Spot: Abatement happened due to no substitution.
Say: It is not a decree on merits.
Seek: Appeal under O.43 R.1(k), not S.100.

IRAC Outline

Issue	Maintainability of second appeal after abatement; effect on O.43 R.1(k) appeal.
Rule	O.22 R.9 (abatement), O.43 R.1(k) (appeal), S.2(2) (decree), S.100 (second appeal).
Application	Abatement lacked merits adjudication; therefore, second appeal was incompetent; O.43 R.1(k) remained competent.
Conclusion	Second appeal dismissed as incompetent; Single Judge rightly restored by Supreme Court; substitution allowed.

Glossary

Abatement: Automatic end of a case/appeal when legal heirs are not brought on record in time.
Decree: Final decision on rights (S.2(2) CPC). Needed for second appeal under S.100.
O.43 R.1(k): Appeal against refusal to set aside abatement.

FAQs

No. It is a procedural end, not a conclusive decision on rights.

No. Second appeal under Section 100 CPC requires a decree. Abatement is not a decree.

File an appeal under Order 43 Rule 1(k) CPC.

That dismissal is without jurisdiction and is invalid.