KALLU Vs. LOKMAD DAS

JUDGEMENT

(1.) This appeal must be allowed. The plaintiff-appellant brought a suit against the defendants-respondents. The suit was decreed ex parte on the 12 of February 1924. On an application being made by Defendants Nos. 1 and 2, the ex-parte decree was set aside, and the case was restored to its original number on the 15th of March 1924 and eventually issues were framed on the 14 of April 1924 and 12 of May 1924 was fixed for final hearing of the suit.

(2.) On that date the learned Munsif passed an order dismissing the suit. That order has been quoted in extenso by the lower appellate Court. Against the order dismissing the plaintiff's suit the plaintiff filed an appeal in the lower appellate Court. In that Court he was met by the objection that the order of the learned Munsif was one dismissing the suit for default, that is, was an order under Order 17, Rule 2, Civil P.C. and not an order under Order 17, Rule 3, Civil P.C. and as such no appeal lay against that order in the lower appellate Court. This contention of the defendants has found favour with the lower appellate Court.

(3.) The lower appellate Court was of opinion that the order could be interpreted as an order either under Rule 2 or Rule 3 of Order 17, Civil P.C., but it seems to have been of opinion that the scale was turned in favour of the defendants contention because of the formal order that was prepared in pursuance of the judgment of the learned Munsif, which formal order distinctly showed that the suit terminated not by a decree, but by an order dismissing the suit for default. I am unable to agree with the lower appellate Court.