SHEORAM Vs. HIRAMAN

JUDGEMENT

(1.) MACNAIR , Offg. J.C. 1. The question referred for decision by a Full Bench is as follows: The first Court passes a decree in favour of plaintiff A against defendants B, C and D. Plaintiff A files an appeal therefrom and so do defendants B, C and D. The lower appellate Court delivers separate judgments in the two appeals and draws up two separate decrees, the net result being that the suit was dismissed. The plaintiff A comes up to this Court in second appeal desiring that both the decrees of the lower appellate Court should be sat aside. The plaintiff files only a single second appeal in this Court. Can this Court entertain the said second appeal, or is it necessary for the plaintiff to file two separate second appeals.

(2.) WHEN the lower appellate Court delivers a judgment dismissing an appeal and passes a decree, the decree from which the appeal is preferred is confirmed. This is clear from the language of Order 41, Rule 32, Schedule 1, to the Civil Procedure Code. I may, however, refer to the judgment of their Lordships of the Privy Council in Abdul Majid v. Jawahir Lal A.I.R. 1914 P.C. 66. A decree had been passed by the Subordinate Judge, Allahabad, an appeal to the High Court was dismissed and the decree of the Subordinate Judge was confirmed. The defendant obtained leave to appeal to the Privy Council but did not prosecute the appeal which was dismissed for want of prosecution. The chief matter of argument before the Board was a contention that the decree of the High Court had been constructively turned into a decree of His Majesty in Council by virtue of the dismissal of the appeal for want of prosecution, and their Lordships remarked: The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from,

(3.) IT is clear, then, that, in the opinion of their Lordships, when an appellate Court deals judicially with the matter of the suit, the decree of that Court based on a judgment is the only decree capable of execution. An order dismissing an appeal for want of prosecution is t not an order confirming the decision, not because it does not expressly state that the decree of the lower Court i3 confirmed, but because it does not deal judicially with the matter of the suit.