CHIDANAND ASHRAM Vs. MAFATLAL FATECHAND SHAH

JUDGEMENT

(1.) THOUGH this matter is listed for admission, with the consent of the parties, we have taken up the same for final disposal at the admission stage. We have heard Mr.Ravish Bhatt, learned counsel appearing for the appellant and Ms.K.J.Brahmbhatt, learned counsel appearing for the respondent.

(2.) THIS Letters Patent Appeal has been filed challenging the order of the learned Single Judge dated 25.2.2011 passed in Special Civil Application No.13531 of 2009 filed by the appellant which has been dismissed on the ground that the petitioner has a remedy of filing a Second Appeal and writ petition was not maintainable.

(3.) UNDER Section 96 of Civil Procedure Code, only appeal lies against a decree and not against an order. Where an application under Order VII Rule 11 of Civil Procedure Code, filed by the respondent itself is dismissed, it will be an order and it will not result in passing a decree by the trial court as it does not result in deciding the right or liability of the parties to the suit. The trial court, in dismissing the application of the respondent-defendant and rejecting their prayer for rejection of the plaint did not decide or determine any right or liabilities of the parties to the suit which could be said to have affected the merits of the dispute between the parties. The effect of rejection of the application under Order VII Rule 11, Civil Procedure Code was that the suit remained pending before the trial court. Therefore, no decree was passed by the trial court on 5.1.2009 and it was merely an order rejecting the application of the respondent-defendant. Against the order passed by the trial court, no appeal would lie under Section 96, Civil Procedure Code which only provides appeal against a decree. Since the application of the respondent was rejected by an order, and no decree was passed by the trial court, therefore, Appeal under Section 96 of Civil Procedure Code filed by the respondent was not maintainable as appeal lies only against a decree and not against an order.