DAISY MANTOSH Vs. NEMCHAND SARAOGI

JUDGEMENT

(1.) This appeal is directed against order No. 14 dated 20th July 1988, passed by the learned 1st Civil Judge (Senior Division) at Alipore, allowing the defendants' application under Order 7 Rule 11 read with Section 151 C.P.C. upon holding that the suit was not maintainable, having been filed against a dead person, namely, the defendant No. 3, and dismissing the suit on the ground of maintainability. While the defendant No. 3 died on 25th August, 1991, the suit was filed on 15th July, 1997, long after his death.

(2.) Appearing for the respondents, Mr Sudha Dasgupta took a preliminary objection that the appeal was not maintainable as it was not in form. He submitted that since the suit had been dismissed a regular First Appeal ought to have been filed and the Memorandum of Appeal should have been accompanied by the decree of the learned trial Court as provided in sub-rule (1) of Rule (1) of Order 41 of the Code of Civil Procedure Mr. Dasgupta submitted that if no decree had been drawn up in respect of the order appealed against, a certificate to that effect should have been filed along with the Memorandum of Appeal as comtemplated in Order 20 Rule 6A C.P.C. Mr Dasgupta submitted that in the absence of either, the appeal was not in form and was liable to be dismissed as being not maintainable.

(3.) Appearing for the appellant, Mr. Saplansu Basu, learned Advocate, contended that it was really the defendants' application under Order 7 Rule 11 C.P.C., which had been allowed by the impugned order and that the suit had only incidentally been dismissed as a consequence thereof. Mr. Basu urged that the said question had been considered at the time of admission of the appeal and by the order dated 9th November. 1998, the appeal was directed to be classified as a "First Miscellaneous Appeal" since the order of rejection of the plaint under Order 7 Rule 11 C.P.C. would have the effect of a deemed decree. Mr. Basu referred to a decision of the Peshawar Judicial Commissioner's Court in the case of Feroz Shah v. Kalu Ram & Anr., wherein with reference to the definition of "decree" in Section 2(2) C.P.C., it was held that an appeal from an order rejecting a plaint was not required to be accompanied by a separate decree sheet. Reference was also made to the decision of the Hon'ble Supreme Court in Jagat Dhish Bhargaua v. Jawaharlal Bhargava, and Phoolchand & Anr. v. Copal Lal, wherein while observing that the filing of a certified copy of the decree along with the Memorandum of Appeal was mandatory, there could be circumstances where an appeal may be competent with Memorandum of Appeal. Mr. Basu submitted that having regard to the nature of the impugned order, the provisions of Order 20 Rule 6A C.P.C. would not be applicable to the instant appeal and the appeal must be treated to be in form.