RAMDHARI AHIR Vs. KHEDU AHIR

JUDGEMENT

(1.) In the first place I do not think we are entitled to place any inter, protection on the order of the learned Judge in the Court below other than that which it will bear on the face of if. The order is the memorandum of appeal is rejected.

(2.) This followed a previous order made about two weeks before, Rule on 16th January 1937, in which the learned Judge expressed the view that the memorandum of appeal was not in accordance with Order 41, Rule 1, Civil P.C. and consequent order was made requesting the appellants to comply with Order 41, Rule 1. Then on 1 February the order came to be made against which this appeal is directed; the order is in these terms: "No compliance. The memo of appeal is rejected. On the first question whether an appeal lies to this Court, two cases of the Madras High Court have been relied upon. The first is the case in 22 Mad 1551 and the other is an earlier decision in Ayyanna V/s. Nagabooshanam (1893) 16 Mad. 258. In the latter case there were some irregularities so far as the vakalat namas of two vakils were concerned, and on the appeal being rejected (for so. it appears to be from the words of the judgment in the case), the objection was taken that no appeal lay and the case in 7 All 428 was relied on for rebutting that contention, the reason being that an order rejecting the plaint was treated under Section 2, Civil P.C. as a decree and the learned Judges were therefore of the opinion that the order rejecting an appeal must also be treated as a decree. If the two cases of the Madras High Court are supposed to support. the universal proposition that the rejecting of a memorandum of appeal is appeasable, I respectfully disagree. Order 43, Rule 1, Civil P.C. provides for appeals in certain circumstances Clauses (t) and (w) of that Order and rule make provision for appeals in cases coming under Order 41, Rules 19, 21 and 23. Now, if the Legislature in its wisdom had made provisions as regards those Orders and Rules, why did it not make provision for appeals regarding Order 41, Rules 1 to 3? No such provision is made and therefore it is necessary to fall back upon Section 2 of the Code. Again, it might be asked if the Legislature has provided for the rejection of a plaint and appeal arising there from, why did it not provide for the ejection of the memorandum of appeal? It seems to and that the reason is obvious because unless the Court either summarily or otherwise adjudicates upon the merits (in the word merits I would include the question of limitation), it cannot be said that the dispute between the parties has been finally disposed of.

(3.) In this case there is a rejection of the memorandum of appeal. We are not concerned, in the particular circumstances of the case, whether the appellants are out of time and they therefore are unable to file another memorandum of appeal, as the fact remains that the mere rejection of the notice of appeal for whatever reason does not preclude the appellants from filing a memorandum which complies with the rules of the Civil Procedure Code.