LAWS(GJH)-2018-6-49

SARVAJANIK VYAYAM MANDIR Vs. ANAND NAGARPALIKA

Decided On June 22, 2018
Sarvajanik Vyayam Mandir Appellant
V/S
ANAND NAGARPALIKA Respondents

JUDGEMENT

(1.) This second appeal under section 100 of the CPC is at the instance of the original plaintiff and is directed against the judgment and order dated 12th April, 2016 passed by the 2nd Addl. District Judge, Anand in the Regular Civil Appeal No.15 of 2016 filed by the appellant herein against an order dated 4th February, 2016 passed by the 2nd Addl. Senior Civil Judge, Anand, dismissing the suit filed by the appellant herein for non-payment of the amount of costs.

(2.) The facts giving rise to this second appeal may be summarized as under;

(3.) Mr. Chauhan, the learned counsel appearing for the appellant vehemently submitted that the first appellate court committed a serious error in taking the view that the appeal under section 96 of the CPC was maintainable as the order passed by the Civil Court, dismissing the suit for default, cannot be termed as a decree within section 2(2) of the CPC. Mr. Chauhan would submit that section 2(2)(b), no doubt, makes it very clear that an order of dismissal for default will amount to a decree, but the dismissal for default in section 2(2)(b) of the CPC would only include dismissal of suit for default on any of the grounds enumerated under Order-9 of the CPC. To put it in other words, according to Mr. Chauhan, it is only if the suit is dismissed for default on the ground of nonappearance of the party concerned, then such dismissal of the suit for default would amount to a decree. However, if a suit is dismissed for default on the ground of non-payment of the amount of costs imposed by the Civil Court below an interlocutory application filed in the suit, then the same would amount to a decree and a regular first appeal under section 96 of the CPC would be maintainable.