MATA PROSAD SHAW Vs. KHEDRU SHAW

JUDGEMENT

(1.) THIS Rule was issued upon the opposite parties to show cause why the order of a Judge of the City Civil court refusing the plaintiff decree-holder's prayer for amendment of the decree should not be set aside. The material facts are that the suit out of which this matter has arisen was decreed by the trial court and there was an appeal from that decree to this court, but the appeal was dismissed for default by a Division Bench of this court. When the decree was put into execution it was discovered that through mistake the schedule of the property had not been given in the decree. The plaintiff made an application to the trial court for amendment of the decree by inserting the description of the property. That prayer was refused by Sri N. M. Sarkar, Judge of the City Civil Court on the ground that he had no jurisdiction to amend the decree since the decree which was sought to be executed was the decree of this Court in which the decree of the trial court had merged. The plaintiff thereafter made an application for review of the order of Sri N. M. Sarkar but the Judge (Sri S. Sen Gupta) who heard that matter agreed with Sri N. M. Sarkar and dismissed the application for review.

(2.) IT is now contended before me that the order of dismissal for default of the appeal by this Court was not a "decree" within the meaning of Sec. 2 of the Code of Civil Procedure. In my opinion that is the correct view and title aforesaid orders of the Judges of title City Civil Court cannot be supported. In the definition of decree in the Code of Civil Procedure, 1882 (Act mo. 14 of 1882), the expression that the "decree" shall not include "any order of dismissal for default" did not find a place. In a Full Bench decision of this court in the year 1903 (Radha nath Sing v. Chandi Charan Singh, (1)LL. R. Cal. Vol. 30, 660) it was held that an order dismissing for default an appeal from a decree was a "decree" within the meaning of section 2 of the code of Civil Procedure. Now, that was a decision under the Code of 1882.

(3.) BUT the definition of decree was subsequently amended; in the Code of 1908 the word 'decree' is denned as follows :