RAM BARAI BHAGAT Vs. MUNNI LAL SINGH

JUDGEMENT

(1.) The question for consideration in this case is whether the dismissal of a suit on a preliminary question will amount to a decree as defined under Section 2(2) of the Code of Civil Procedure (hereinafter referred to as 'the Code)' and whether an appeal shall lie against such an order.

(2.) The plaintiffs-opposite party filed a suit being Title Suit No. 245 of 1972 in the Court of Munsif, Siwan, for declaration of their title in some lands and for temporary injunction. During the pendency of the suit, another Title Suit No. 91 of 1973 was filed in the Court of Subordinate Judge with regard to the same subject matter and on the same cause of action. Title Suit No. 245 of 1972 was allowed to be withdrawn on a prayer made by the plaintiffs. In the other title suit, namely, Title Suit No. 91 of 1973, the defendants raised a preliminary point that it was a subsequent suit with respect to the same subject-matter and was not maintainable as the Court had not permitted the plaintiffs to file another suit after giving the permission to withdraw Title Suit No. 245 of 1972. The learned Additional Subordinate Judge by his order dated 18.3.1978 held that the plaintiffs had withdrawn the previous suit without getting the permission to file a fresh suit and, therefore, the present suit (Title Suit No. 91 of 1973) was not maintainable. The plaintiffs thereafter filed an appeal which was registered as Title Appeal No. 42/44 of 1978/80. In the appeal the defendants raised an objection that the appeal was not maintainable inasmuch as no decree had been prepared nor one could be prepared against the order passed by the learned Additional Sub-Judge on 18.3.1978 holding that the suit was not maintainable. The learned Additional District Judge has found that the appeal is maintainable because the adjudication by the learned Subordinate Judge as to whether the suit was maintainable or not amounts to a decree which is appealable. The defendants have thereafter come in revision to this Court against the order passed by the learned Additional District Judge.

(3.) 'Decree' as defined under Section 2(2) of the Code: means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determine the rights of the parties, with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include: