S.S. BHALOTIA Vs. ESSEM ENTERPRISES PRIVATE LIMITED

JUDGEMENT

(1.) THE Code of Civil Procedure would clearly categorize the decisions of one Court to be available for appeal before the superior Court. A class of decisions is specified as order that would be covered by Order XLIII whereas the other class to be treated as decree would be dealt with by Order XLI. There are orders where appeal would not be maintainable and revision would lie, yet many a times there are confusions looking at the nature of the decision. The Court of law does not dismiss those erroneous appeals as a matter of course and often permit the appellants to convert it into the right form. This procedure is not unknown.

(2.) THIS is an intra Court appeal within the meaning of clause 15 of the Letters Patent. The decision was rendered under Order VII Rule 10 and 11 wherein the learned Single Judge dismissed the suit filed by the appellant. Appellant filed the appeal treating it as an appeal from order that should have been an appeal from decree. The respondent would contend, they cautioned the appellant at the admission stage. Yet the appellant was callous. The appeal appeared for hearing before us when the appellant realized their mistake and sought an adjournment to make the present application for amendment that was in effect, correction of such mistake. The appellant prayed for amendment of the cause title and the body of the Memorandum of Appeal limited to the mistake referred to above. The respondents contested the application by filing affidavits.

(3.) WE have considered the rival contentions. We have carefully perused the proposed amendment. We fully agree with Mr. Chowdhury, the amendment was absolutely formal in nature. It is true that once the appeal from order would be converted into appeal from decree, it would have a different shape. The same would attract appropriate court fees to be paid. However, the respondent would not be in any way prejudiced.