KUNHAVARAN HAJI Vs. ASSANKUTTY

JUDGEMENT

(1.) SINCE the question brought to my notice arises very often in cases coming up before this Court,I think it is necessary to advert to the matter in a little detail.It concerns the question whether this second appeal filed as a second appeal should be treated as one such.The petition before me is one to dispense with the production of the Lower Court's decree.A copy of the decree was not produced along with appeal.According to counsel,though the Court below has passed a decree that Court,when approached for a copy of the decree,has not issued such copy,presumably on the basis of R.192 of the Kerala Civil Rules of Practice.That rule reads: - "In execution appeals and in appeals where the matter is remanded for retrial,no decree need be prepared but a table of costs shall be appended to the order." According to counsel Sri.Govinda Warrier,who,I must say,was of considerable assistance to me in the case,though that Court has treated this as a case where no decree ought to be drawn up he would be prejudiced if he does not file an appeal against the decision of the Court below and that is why he has come up in Second Appeal.According to him,since,in the circumstances pointed out,the Court below which had a duty to issue a copy of the decree to him has not so issued the copy,this Court,in exercise of its inherent powers,would only be doing justice to the party by dispensing with the production of the copy of the Lower Court decree.

(2.) THE question raised necessarily involves a question rather difficult to answer.O.41 Rule i is a provision which appears to be mandatory in so far as it requires that the memorandum shall be accompanied by a copy of the decree appealed from.Whether in a case in which copy of the decree is to be filed by the party the Court could,in exercise of its inherent powers,dispense with the production of the copy is the question which I may have to decide in the event I treat this case as one in which an appeal lies.But I do not think for the purpose of this case it is necessary to consider this because as I will presently show I do not think this is a case where a Second Appeal should have been filed.The decision of the Court below is one which,according to me,would fall within the scope of O.41 R.23,Civil Procedure Code,and if that be the case,it is an order which is appealable under O.43 R.i(u)of the Code of Civil Procedure.

(3.) A decree is defined in S.2(2)as follows: - "decree "means the formal expression of an adjudication which,so far as regards the Court expressing it,conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.It shall be deemed to include the rejection of a plaint and the determination of any question within S.47 or S.144,but shall not include - (a)any adjudication from which an appeal lies as an appeal from an order,or (b)any order of dismissal for default. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of.It is final when such adjudication completely disposes of the suit.It may be partly preliminary and partly final:" A judgment is defined in S.2(9)as: "'Judgment 'means the statement given by a Judge of the grounds of a decree or order " and R.2(14)defines order as meaning: - "The formal expression of any decision of a Civil Court which is not a decree " ;. O.41 R.23 is in the following terms: - "Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal,or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case,the Appellate Court may by order remand the case,and may further direct what issue or issues shall be tried in the case so remanded,and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred,with directions to readmit the suit under its original number in the register of civil suits,and proceed to determine the suit;and the evidence(if any)recorded during the original trial,shall,subject to all just exceptions be evidence during the trial after remand " ;. The provision which I have extracted above is that in the Code of Civil Procedure as applicable to the State of Kerala.The scope of remand under O.41 R.23 in the Code of Civil Procedure applicable to the State is much wider than the corresponding provision in the Central Code.I may also have to refer here to O.43 R.i(u)which confers the right of appeal against an order under O.41 R.23.That rule reads: - "i.An appeal shall lie from the following orders under the provisions of S.104,namely: - (u)an order under R.23 of O.41 remanding a case,where an appeal would lie from the decree of the Appellate Court " ;.