K M CHITAHARANJAN Vs. RAVI MOHAN

JUDGEMENT

(1.) This Regular Second Appeal is instituted against the judgment of the District Judge, Kozhikode in a Civil Miscellaneous Appeal which was directed against an Interlocutory Application filed in a suit wherein the present appellant was the second defendant. An interlocutory application was filed under O.11 of the Code for delivery of interrogatories and since the answers furnished to the interrogatories were not in the form of affidavit as required by law, the learned Munsiff passed an order directing the answers to be furnished in oath form. The learned District Judge noticed on hearing the C.M.A. that the appellant had already answered the interrogatories by an affidavit as directed by the learned Munsiff in the order which was impugned in the C.M.A. and therefore the C.M.A. was to be dismissed not only on merits but also in that the appeal has become infructuous.

(2.) According to the Registry the Second Appeal is not maintainable in law obviously in view of S.104(2) of the C.P.C. The appellant who appeared before me in person submitted that the Registry's view is incorrect. When the observation of the learned District Judge that the C.M. Appeal itself had become infructuous was brought to the notice of the appellant he submitted that it was subject to his filing of the appeal that he complied with the directions of the Trial Court and he wants to have the second appeal registered and considered by this Court. According to him, the second appeal is very much maintainable in law because what was delivered by the learned District Judge is a judgment. He invited my attention to S.33 of the Code and submitted that in every case where the court delivers the judgment a decree shall also follow and submitted further that since this appeal involves substantial questions of law, this appeal is liable to be registered as a regular second appeal. According to him if decrees are not issued, the operative portion of the judgment itself shall be treated as decree for appeal purposes.

(3.) Second Appeal envisaged by S.100 are appeals from appellate decree. The argument of the appellant is that what was pronounced by the lower appellate Court in the C.M. Appeal filed by him was a judgment and not an order and therefore in view of S.33 of the Code of Civil Procedure a decree also should have followed and in cases where the Court passes judgment but does not issue decrees, the operative portion of the judgment shall be treated as decree and therefore the present Second Appeal in so far as it directed against an appellate judgment is maintainable.