ROMESH CHANDRA DAS Vs. SARADA KRIPA LAL

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of possession of land upon partition. The Court of first instance dismissed the suit after trial on the merits. The plaintiff then appealed to the District Judge. The lower Appellate Court called upon him to furnish security for the costs of the appeal and of the original suit under Sub-rule (i) of Rule (10) of Order XLI of the Civil P. C.. The plaintiff did not comply with this order. Thereupon the Court proceeded to make the order contemplated by Sub-rule (ii) of Rule (10), which provides that where such security is not furnished, the Court shall reject the appeal. The order of the District Judge is not accurately expressed, because it states that the appeal is dismissed and not that the appeal is rejected. This inaccuracy in expression, however, does not alter the nature of the order. The plaintiff has now appealed to this Court.

(2.) On behalf of the respondents, a preliminary objection has been taken that the appeal is incompetent. This raises the question whether an order under Order XLI, Rule (10), Sub-rule (ii), is or is not appealable If it is treated as an order, it is clearly not appealable, because it is not included in the list of appealable orders set out in Order XLIII, Rule (1), nor is it covered by the provisions of Section 104, Consequently if an appeal is to be entertained, the appellant must satisfy us that the order of rejection is, in essence, a decree. We are of opinion that the order does not fall within the definition of a decree contained in Section 2, which provides that "decree" 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." The order in this case does not determine the rights of the parties with regard to all or any of the matters in controversy in the suit, inasmuch as the Court rejected the appeal and did not deal with the merits of the controversy between the parties. This view was adopted by a Full Bench in the case of Lekha V/s. Bhauna 18 A. 101 (F.B.) : A.W.N. (1895) 238 : 8 Ind. Dec. (N.S.) 773, which was mentioned with approval in Secretary of State for India in Council V/s. Jillo 21 A. 133 : (F.B.) : A.W.N. (1898) 204 : 9 Ind. Dec. (N.S.) 794 and Firozi Begam V/s. Abdul Latif Khan 30 A. 143 : 5 A.L.J. 109 : A.W.N. (1908) 53 3 M.L.T. 221. We observe that in the case last mentioned, it was remarked that it would be well if the Legislature would consider whether it would not be advisable to embody in the Code of Civil Procedure some provision analogous to that contained in the second paragraph of Section 381 of the Code of 1882 and thus to give a right of appeal from orders passed under Section 541 of that Code. The Legislature, however, does not appear to have taken notice of the suggestion. It may be pointed out further that Section 2 includes in the term "decree" an order of rejection of a plaint, but not an order of rejection of an appeal, It is also worthy of note that Order XXV, Rule (2) which deals with the dismissal of a suit, on failure to furnish security describes the order, not as that of rejection of a suit but as that of dismissal of a suit, and such order of dismissal is made expressly appealable under Order XLIII, Rule (1), Clause (n), We are consequently of opinion that an order of rejection of an appeal under Order XLI, Rule (10), is not appealable, either as a decree or as an order. This appeal is plainly incompetent and is accordingly dismissed with costs.

(3.) The application filed in Court to-day, with a view to have the order set aside in the exercise of our re-visional jurisdiction or of our power of superintendence, is refused. Buckland, J.