SADEPPA YELLAPPA DALAWAI Vs. SADASIVA MAHARUDRAPPA CHEELAD

JUDGEMENT

(1.) The point of law urged in this case is an interesting one and, I am told, it is not covered by any decision of this Court. It is urged on behalf of the appellant that the judgment of the first appellate Court, not being in conformity with rule 31 of 0. XLI C. P. C. is liable to be set aside. The appeal filed by the appellant (Civil Appeal No. 31 of I960 in the Court of that District Judge, Belgaum) was dismissed under Rule 11 of Order XLI with the following observations: "Find no sufficient ground to admit this appeal. Hence, rejected". Sri. Srinivasa Iyer, the learned counsel for the appellant, contended that the judgment of the first appellate court is no judgment in law and therefore, I must set it aside. The respondent in this case was not represented. Therefore, at my request, Sri M.M. Jahagirdar was good enough to argue the appeal on behalf of the respondent as amicus curiae. I must admit that I had considerable assistance from the arguments advanced by the learned counsel on either side.

(2.) Rule 11(1) of Order XLI says:

(3.) It cannot be denied and it is not denied that the order of the first appellate court which I have extracted above is a judgment and that a decree had been drawn up on the basis of that judgment. It is also not denied that from that decree a second appeal lies to this Court. 'Judgment' is defined in Section 2(9) as follows:--