MT. GAWARJABAI Vs. HARIRAM

JUDGEMENT

(1.) THE applicant asks for leave to appeal to the Privy Council from what she terms the judgment and decree of this Court in First Appeal No. 59-B. of 1927, decided on 12th January 1928. She was the the defendant in the suit, filed by Hari Earn for a declaration that he (Hari Earn) was the adopted son of Ganeshdas. The first Court in a careful judgment found that Hari Earn had been adopted by Ganeshdas and passed a decree in his favour. The appeal to this Court, First Appeal No. 59-B of 1927, was dismissed by a Bench without notice to the respondent. The decision of the appeal "was termed by the Bench a judgment but no decree was drawn up; it is the pratice of this Court not to pass a decree when an appeal is dismissed under Order 41, Rule 11, Civil P.C. As the judgment or final order of this Court affirmed the decision of the Court immediately below leave to appeal to the King in Council cannot be granted unless the appeal involved some substantial question of law.

(2.) IT is urged before us that it was necessary for this Court to pronounce a judgment containing the matters set forth in Order 41, Rule 31, Civil P. C and that the judgment pronounced does not contain these matters and " is really no judgment at all. " We first consider the question whether a Court dismissing an appeal under the provisions of Order 41, Rule 11, Civil P.C., is bound to pronounce judgment containing the matters detailed in Order 41, Rule 31.

(3.) IN Royal Reddi v. Linga Beddi [1881] 3 Mad. 1 two Judges took the opposite view with regard to the provisions of a former Procedure Code, but the short reasoning which supported their view appears to have no application to the provisions of the new Code. In Kali Kishore Deb Sarkar v. Guru Prosad Sukul [1898] 25 Cal. 99. Macpherson and Ameer Ali, JJ., took the same view of the provisions of the old Code as that taken in the Madras case, but they are careful to say that they think this is the correct view and do not discuss the point at length.