MAKHU SAHU Vs. KAMTA PRASAD SAHU

JUDGEMENT

(1.) This is a petition for the revision of an order of the District Judge of Shahabad dismissing under Order 41, Rule 11, Civil P.C., an appeal in an execution case. There is no doubt that the order was right on the merits but the question before us is whether the learned Judge was right in recording the order in the form "summarily dismissed" or whether he should have delivered a "judgment" setting forth the reasons for his decision. There has been some conflict between the decisions of the various High Courts on this point. Order 41, Rule 11 is as follows: 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.

(2.) It corresponds with Section 511 of the old Code but in para. 1 of the rule the words "after sending for the record if it thinks fit to do so" are new and the words in the old Code "the appeal may be dismissed for default" have been replaced by the words "the Court may make an order that the appeal be dismissed." There is thus no appeal from an order made under the rule, Order 41, Rule 31 is as follows: The judgment of the appellate Court shall be in writing and shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

(3.) The contention accepted by some High Courts has been that an order under Rule 11 must be justified by a "judgment" under Rule 31. It is worthy of notice that there is a difference between a "judgment" and a "decree" or "order" which is indicated in Section 2 of the Code itself for, by the definitions: (9) judgment means the statement given by the Judge of the grounds of a decree or order, (2) 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 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: (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default, and (14) order means the formal expression of any decision of a civil Court which is not a decree. It may further be noted that appeals are always from "decrees" or "orders" and not from "judgments," for it frequently happens that the order appealed from is right though the judgment by which it is supported is erroneous. Order 41 prescribes the procedure in dealing with appeals.