SHEOLAL Vs. MOHAMMAD ISMAIL

JUDGEMENT

(1.) 1. The applicant obtained a decree in the Court of the Subordinate Judge, Sausar. An appeal was filed and the District Judge, Chhindwara, passed a, decree modifying the original decree. A second appeal was filed in this Court, but, as is admitted before me, it was dismissed under the provisions of Order 41, Rule 11, Schedule 1, Civil P. C. The applicant applied to the trial Judge for amendment of the decree. This application was allowed by the trial Judge but in revision the order of the trial Court was set aside on the ground that the trial Court had no jurisdiction after supersession of the decree by the appellate decree of the District Judge. The applicant now asks this Court to amend the decree.

(2.) IT is urged by the non-applicant that as the order of this Court did not affect the decree, application must be made to the District Judge. I have therefore to decide whether the dismissal of the appeal under the provisions of Order 41, Rule 11, left the decree of the lower appellate Court untouched or involved the passing of a decree confirming the decree of the lower appellate Court. The decisions on this point in other High Courts are not consistent. In Rami Deka v. Brojo Nath Saikia (1898) 25 Cal 97 it was held that the dismissal under the corresponding section of the old Civil Procedure Code did not relieve the Court from the necessity of writing a judgment. No reasons however were given for the decision. In Surendra Nath v. Raghunath Butt AIR 1923 Cal 558 a similar view was taken mainly on the ground that the point had been previously decided. In Ma Saw v. Ma Bwin Byu AIR 1926 Rang 129 a similar view was taken after full discussion. Chari, J., stated that the dismissal under Order 41, Rule 11, must be followed by a decree and a decree can only be based on a judgment. On the other hand in Samin Hasan v. Piran (1908) 30 All 319 it was held that the provisions of Section 574 of the old Code, corresponding to Order 41, Rule 31, Schedule 1 to the present Code, did not apply to a judgment dismissing an appeal under Section 551 of the old Code, corresponding to Order 41, Rule 11 and in Tanji Dagde v. Shankar Sakharam (1912) 36 Bom 116 Beaman and Hayward, JJ., held that Rules 30 and 31, Order 41, were not applicable when appeals were dismissed under Rule 11, Order 41.

(3.) BUT it is clear that they were considering an appeal which was decided after hearing. They stated that the Board had taken the same view in Abdul Majid v. Jawahir Lal AIR 1914 PC 66 and in that case it was held that an order dismissing an appeal for want of prosecution was in no sense an order adopting or confirming the decision appealed from. In my opinion, an order under Rule 11 passed without notice to the Court from whose decree the appeal is preferred must in like manner be considered an order deciding that the grounds of appeal are not valid and not an order adopting or confirming the decision appealed from. In Hanmant v. Annaji Hanmanta (1913) 37 Bom 610 it was held that a judgment and decree were necessary because the High Court had so directed. In this Court it has not been the practice to pronounce judgments or to pass decrees when appeals are dismissed under Rule 11. In Ma Saw v. Ma Bwin Byu AIR 1926 Rang 129, Chari, J., considered that it was necessary to record reasons for dismissing a case under Order 41, Rule 11, in order that a Court of second appeal could ascertain the reasons for which the appeal was dismissed. But Order 41, Rule 11, applies to second appeals as well as first appeals and an appeal from the decision of a first appeal is not always allowed by the Code. It is no doubt proper that an order under Rule 11 should be a reasoned order if an appeal lies from it. But the Court of second appeal can insist on reasons being given in orders without holding that these orders are judgments to which Rules 30 and 31 apply. I see then no reason to think that the order passed by this Court was a judgment or that there was any confirmation of the decree of the District Judge. That decree then is intact: an application for amendment must be made to the District Judge. This application is dismissed: costs on the applicant: counsel's fee Rs. 20.