J D JAIN Vs. SHARMA ASSOCIATES

JUDGEMENT

(1.) SECTION 10 of the Delhi High Court Act has been invoked in this Appeal in respect of the challenge to the Judgment of the Learned Single Judge dated 2.2.2010 erroneously nomenclatured by the Appellant as an "Order". There is no gainsaying that the impugned decision is amenable to judicial scrutiny by means of a Regular First Appeal (RFA) and therefore the question is whether a First Appeal from Order (FAO) should be entertained. Learned counsel for the Appellant states that the Learned Single Judge has not ordered for the preparation of a Decree; and none has been prepared. Therefore, SECTION 10 of the Delhi High Court Act is available to the Appellant. We are unable to subscribe to this view as it ignores a very significant amendment brought into the Code of Civil Procedure, 1908. In Rule I of Order XLI of the CPC the word "decree" has been substituted by the word "judgment". Facially, this Rule now ordains that every Appeal shall be preferred in the form of a Memorandum signed by the Appellant or his Pleader presented to the Court or to such officer as it appoints in his behalf, and that the Memorandum shall be accompanied by a copy of the Judgment. A copy of the Judgment is in fact on the Appeal record and has been perused by us. The Learned Single Judge has discussed the matter threadbare and returned the finding that the suit is barred on the principles of limitation as well as on the application of Order II Rule 2 of the CPC.

(2.) THE intent of the Legislature is writ large and is unequivocal and unambiguous. An Appeal should no longer await the preparation of a Decree. THErefore, the argument of counsel for the Appellant that a Regular First Appeal cannot be filed in the absence of a "Decree" is erroneous. THEse proceedings are dismissed as not maintainable, without prejudice, however, to the rights of the Appellant to file a Regular First Appeal (RFA) in accordance with law, if it so chooses. THEre shall be no order as to costs.