JHARNA GHOSAL Vs. SATYENDRA PROSAD DHAR

JUDGEMENT

(1.) These two Rules have been referred to the Division Bench by A. Bhattacharya J.

(2.) The principal point that is involved in these Rules is whether an order recording abatement of a suit under Section 57-B incorporated in the West Bengal Estates Acquisition Act, 1953, hereinafter referred to as the Act, by the West Bengal Estates Acquisition (Second Amendment) Act, 1973, is an appealable order. There are two conflicting decisions on the point, In Amritamay Ghosh v. State of West Bengal, (1976) 80 Cal WN 205, R, Bhattacharya J. has expressed the view that an appeal lies against such an order and a revisional application under Section 115 of the Civil P. C. is not maintainable. In support of his view Bhattacharya J. has placed reliance on two Bench decisions of this Court, one in Naimuddin Biswas v. Moniruddin Laskar, 32 Cal WN 299: (AIR 1928 Cal 184) and the other in Sabitribai v. Jugal Kishore, AIR 1938 Cal 639, and a decision of the Madras High Court in Subbayya v. Saminadayyar, (1895) ILR 18 Mad 496. On the other hand, in Sideswar Biswas v. State of West Bengal, (1976) 3 Cal HC (N) 394, Chitta-tosh Mookerjee J. has taken a contrary view. It has been held by Mookerjee J. that an order recording abatement of a suit under Section 57-B is not an appeable order, but it can be challenged by an application under Section 115 of the Code. Mookerjee J. has pointed out that the case of Naimuddin Biswas v. Moniruddin Laskar (supra) has been distinguished and explained by Chakravartti C. J. in a later Bench decision of this Court in Subodh Gopol v. Nilabja Barani Debi, (1955) 59 Cal WN 1056. Further, the learned Judge has pointed out that the decision of the Madras High Court in Subbayya v, Saminadayyar (supra) was considered by the Full Bench of the Lahore High Court in Niranjan Nath v. Afzal Hus-sain, AIR 1916 Lah 245 (FB) where Shadi Lal J. who delivered the judg-ment of the Full Bench observed: "When a Court passes a purely formal order recognising the abatement which is a fait accompli, such an order, though virtually disposing of the suit, does not adjudicate upon any rights and cannot be treated as a decree. If on the other hand, the order of abatement is the result of an adjudication upon the rights of the parties with respect to a matter in controversy and is not passed upon an application for the revival of the suit made under Order 22, Rule 9, it amounts to a decree and is appealable as such." In that view of the matter Mookherjee J, held that an appeal did not lie from an order recording abatement under Section 57-B of the Act.

(3.) Under Section 96 of the Civil P. C. an appeal lies from every decree except a decree passed by the Court with the consent of parties. Principally, therefore, an appeal lies from a decree and no appeal lies from an order. Certain orders have, however, been made appealable under Section 104 and as enumerated in the list under Order 43, Rule 1 of the Code. So, if an order is not a decree, no appeal lies from it unless it is one of such orders as are mentioned in Order 43, Rule 1. A decree, as defined in Sub-section (2) of Section 2 of the Code, means the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. If an order answers the definition of a decree an appeal will lie from it under Section 96; but if an order is neither a decree nor finds place in the list of appealable orders under Rule 1 of Order 43, no appeal will lie from it.