JAMUNA PRASAD RAI Vs. RAJBALLAM RAI

JUDGEMENT

(1.) In Miscellaneous Appeal No. 240 of 1936 Jamuna Prasad Rai, judgment- debtor, presents a second appeal from an appellate decision of the District Judge of Shahabad dismissing under Order XLI, Rule 11, Sub-rule (1), Civil Procedure Code, his appeal from the decision of the Munsif, Third Court, Arrah, disallowing his objection to the execution of the decree on the ground that full payment, had been made to the decree holder out of Court. In Civil Revision No. 489 of 1936, the same Jamuna Prasad Rai asks this Court to revise the above appellate decision in case it is held that no appeal lies. It seems unfortunate that litigants should be in doubt as to the nature of their remedy and should feel themselves compelled to institute two proceedings instead of one.

(2.) The order of the first Court being a decision determining a question arising between the parties to the suit and relating to the execution, discharge or satisfaction of the decree, was a "decree" within the meaning of Section 2(2), Civil Procedure Code read with Section 47. The determination on merits of an appeal from a decree is also generally regarded as a decree for the purposes of second appeal. The question is whether cases where after full bearing a judgment in conformity with Order XLI Rule 31, Civil Procedure Code, has been written, and cases where an appeal has been dismissed summarily under Order XLI, Rule 11, are on the same footing. To the former class of cases a full and formal decree in accordance with Order XLI, Rule 35, is drawn up. But when an appeal is dismissed under Order XLI, Rule 11 the practice is merely to notify the dismissal to lower Court under Order XLI, Rule 11, (3) and the entry in the order-sheet of the appeal remains as the only expression of the decision. This difference of practice may at first sight create the impression that dismissal under Order XLI, Rule 11, is not a decree because the words "formal expression" appear in the definition of a decree : Section 2(2) of the Code. But the same words "formal expression" appear in the definition of an order : Section 2(14). Therefore, the presence or absence of a formal expression cannot be the true criterion of the difference between a decree and an order; and if it be urged that without formal expression there can be no decree, the answer is that the words "appeal dismissed" over the signature of a Judge are a formal expression of a decision: if they were not considered to be that, they would not even amount to an order as defined in Section 2(14). Reading the two definitions together, the essence of the distinction seems to lie in the nature of the decision--whether it is an adjudication of a particular kind or not-- rather than in the manner of its expression.

(3.) The view which has generally prevailed hitherto is that the dismissal of an appeal under Order XLI, Rule 11, Sub-rule (1) is appealable as a decree whereas dismissal under Rule 11, Sub-rule (2) is not. The difference between the wording of Sub-rule (1) and Sub-rule (2) of Order XLI, Rule 11, is significant. Sub-rule (2) provides for "an order that the appeal be dismissed", if the appellant does not appear when the appeal is called on for hearing. The intention is clear to make the order under this sub-rule not appealable; and for this there are two good reasons: first, the ground of dismissal under Order XLI, Rule 11 (2) being non-appearance, the Court has not considered and adjudicated on the question whether there is any merit in the appeal; secondly, the Code has provided another remedy under Order XLI, Rule 19, by application for the re-admission of the appeal, and if that application is refused, an appeal lies under Order XLIII, Rule 1 (t). But an appellant has no such remedy when his appeal is dismissed under Order XLI, Rule 11, Sub-rule (1). Such a dismissal has, so far as the Court pronouncing it is concerned, the finality which is an essential ingredient in the definition of "decree" in Section 2(2); and in substance it expresses an adjudication within that definition, to the effect that the appeal is without merit. How it came about that such different language was used in Sub-rule (1) and in Sub-rule (2) of Order XLI, Rule 11, is apparent on reference to the old Code, Section 551. In that section the authority to dismiss for default and to dismiss summarily after hearing the appellant's Pleader are conferred in the same terms; and this had led to a conflict of judicial opinion. The one opinion was that both cases were on the same footing, and in both cases the dismissal was a decree; the other was that dismissal for default of appearance was not a decree. It has been generally considered since the amendment that the altered language was intended to contrast these two forms of dismissal. If so, "dismissal" under Sub-rule (1) would amount to a decree but an order that the appeal be dismissed under Sub-rule (2) would not.