BIPIN BEHARI CHATTAPADHYA Vs. JOGENDRANATH BANDOPADHYA

JUDGEMENT

(1.) In this case, the lower Appellate Court dismissed the appeal evidently under Order XLI Rule 11. The order runs as follow?: "Heard Pleader. The appeal is summarily dismissed." It is contended on behalf of the appellant before us that the provisions of Order XLI, Rule 11, are controlled by those of Order XLI, Rule 31.

(2.) There is a divergence of opinion on the point in the several High Courts in India. In our Court, in the case of Rami Deka V/s. Brojo Nath Saikia 25 C. 97 : 1 C.W.N. 692 13 Ind. Dec. (N.S.) 66, where the judgment was "Suit laid at Rs. 480, value of buffaloes. Appeal rejected under Section 551, Civil Procedure Code", it was held that the dismissal of an appeal under Section 551. Civil Procedure Code, by a Court whose decision may be the subject of an appeal does not relieve the Court from the necessity of writing a judgment which, according to the provisions of Section 574 of the Code, should show the points raised, the decision upon those points and the reasons for deciding them. In the next case in our Court, Rakhal Chandra Tewari V/s. Satindra Deb Rai 5 C.L.J. 348, Maclean, C.J., (Caspersz, J., agreeing with him) quoted with approval the above case of Rami Deka V/s. Brojo Nath Saikia (l), but distinguished it on the ground that in the case before them there was substantial compliance with the requirements of Section 574 of the Code. In the case of Pachi Dasi V/s. Bala Das 2 Ind. Cas. 405: 13 C.W.N. 1031 Coxe, J., was of opinion that Section 551 of the Code was not controlled by Section 574. Richardson, J., on the other hand fully accepted the view of law taken in the two earlier cases, Both the learned Judges, however, were of opinion that in the case before them the judgment recorded by the Subordinate Judge was sufficient. It appears from pages 1032-33 of the report that the fasts of the case, the points for determination and the reasons for deciding them were stated, though briefly. The question whether the provisions of Section 551 are controlled by those of Section 574, therefore, did not arise for determination in that case and the observations of the learned Judges on the point must be taken as obiter.

(3.) In the Bombay High Court, in the case of Puttapa V/s. Yellappa 5 Bom. L.R. 233, the same view was taken as in the two earlier Calcutta cases. A contrary view was taken later in the case of Tanaji Dagde V/s. Shankar Sakharam 12 Ind. Cas. 564 : 36 B. 116 : 13 Bom. L.R. 1002. That decision, however, was overruled by a Full Bench of the Bombay High Court in Hanmant Rukhmaji V/s. Annoji Hanmant 20 Ind. Cas. 966 : 37 B. 610 : 15 Bom. L.R. 765. But the decision of the Full Bench proceeded upon the ground that there was a Circular Order of the Bombay High Court by which the lower Courts were bound.