DEVALRAJU SUBBAMMA Vs. DEVALRAJU MADHAVARAO AND ORS.

JUDGEMENT

(1.) THE petitioner applied to the lower appellate Court for an amendment of the decree. The respondents, however, had filed a second appeal to this Court, which was dismissed in limine under Order 41, Rule 11. The question that arises is whether the decree to be amended is the decree of this Court in second appeal or the decree of the lower appellate Court. The lower Court dismissed the application for amendment on the ground that the application should have been made in this Court.

(2.) THE learned advocate for the petitioner, while conceding that if notice had issued in second appeal and the second appeal had been disposed of after hearing then the amendment application should have been made to this Court, argues that the dismissal of the second appeal in limine under Order 41, Rule 11 does not amount to a decree. It merely dismisses the appeal, it is said, leaving the decree of the lower appellate Court in force. In Muniswami Naidu v. Muniswami Reddi, I.L.R.(1898) Mad. 293, it was held that when an appeal was dismissed in limine a decree had to be passed by the appellate Court and that decree superseded the decree of the lower Court. It is however argued that the law is now different, because in the old Code, which was in force when Muniswami Naidu v. Muniswami Reddi, I.L.R.(1898) Mad. 293 was decided, the appellate Court was required to confirm the decree in dismissing the appeal. The wording of Order 41, Rule 11 says nothing about confirming the decree of the lower Court. It is argued that on account of this change in procedure, it is no longer necessary to pass a decree, after an appeal is dismissed under Order 41, Rule 11 and that therefore the proper Court in which to file an application for amendment is the lower Court.

(3.) BEFORE referring to the one or two cases which have dealt with this question, it may be pointed out that the procedure in this Court has been throughout uniform and was not changed when the present Code of Civil Procedure was drawn up. When an appeal is dismissed under Order 41, Rule 11, a decree is drawn up in precisely the same form as when it is dismissed after notice, except that necessarily there is no reference to any advocate appearing for the respondent and no mention of costs. Indeed, there is no difference in principle between a dismissal in limine and a dismissal after notice, in cases where it is not necessary to call upon the respondent to reply.