VATTIPALLE ESWARIAH Vs. VATTIPALLE RAMESWARAYYA

JUDGEMENT

(1.) This second appeal has been placed before this Full Bench as it raises the important question whether the Court in dealing with an appeal under Order 41, Rule 11 of the Civil P. C. can direct that it be admitted in part only. The appeal arises out of a suit filed in the Court of the District Munsif of Nandalur for the partition of 72 items of property held in common by eight people. The first respondent in the appeal was the plaintiff. A decree for partition was granted by the District Munsif who gave his decision on the claims of the parties to the various items of property. The appellant and the third respondent appealed to the Subordinate Judge of Cuddapah. The Subordinate Judge set aside the allotments, of the District Munsif and made fresh allotments. The appellant was dissatisfied with the Subordinate Judge's decision in so far as it related to items Nos. 29, 30, 31, 33, 37 and 38 of the properties and he filed the present appeal, which was placed before Gentle, J., on the question of admission. The learned Judge passed an order admitting the appeal only in respect of item No. 30.

(2.) In my opinion the learned Judge erred in admitting the appeal only in part. As he considered that there was a question which called for an answer he had no discretion in the matter in view of the wording of Order 41, Rules 11 and 12(1). Rule 11 says: (1) The appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

(3.) Rule 12(1) is in these words: Unless the appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal.