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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Harinandan Singh, for the petitioners.
  • Anand Prasad, for the opposite party.
Judges
  • Courtney Terrell, C.J
  • Varma, J.
Acts
  • Order XLI, rule 11, of the Code of Civil Procedure
  • section 47 or section 144,
  • section 2 of the Code
  • Order XLI, rule 11
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Harinandan Singh, for the petitioners.
  • Anand Prasad, for the opposite party.
Judges
  • Courtney Terrell, C.J
  • Varma, J.
Acts
  • Order XLI, rule 11, of the Code of Civil Procedure
  • section 47 or section 144,
  • section 2 of the Code
  • Order XLI, rule 11
See more information ...
Smart Summary

Judicial Summary: Opinion of Courtney Terrell, C.J.

Factual and Procedural Background

This opinion arises from a petition for revision of an order of the District Judge of Shahabad which had dismissed, under Order XLI, rule 11 of the Code of Civil Procedure, an appeal in an execution case. The District Judge recorded the dismissal in the form "summarily dismissed." The central procedural question before the Court was whether such an order under Order XLI, rule 11 must be accompanied by a written "judgment" setting out reasons as required by Order XLI, rule 31, or whether the summary form used by the District Judge was permissible. The opinion notes a conflict of authority among various High Courts on this point. The petition for revision was dismissed by the Court with costs; Varma, J. agreed and the Rule was discharged.

Legal Issues Presented

  1. Whether an order dismissing an appeal under Order XLI, rule 11 of the Code of Civil Procedure must be supported by a written "judgment" containing points for determination, decision, and reasons as required by Order XLI, rule 31.
  2. Whether the District Judge was correct in recording the dismissal as "summarily dismissed" instead of delivering a written judgment setting forth reasons.
  3. How the statutory distinctions between "judgment", "decree" and "order" (as set out in section 2 of the Code) and the requirements of section 142 and Order XX, rule 3 affect whether rule 31 applies to dismissals under rule 11.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Rami Deka v. Brojo Nath Saikia Held (under the old Code) that an order dismissing an appeal under section 551 should be supported by a judgment setting forth the grounds. The Court records this as the origin of a practice in Bengal requiring judgments for dismissals; notes the reported decision did not give reasons.
Samin Hasan v. Piran Two Judges of the Allahabad High Court (1908, under old Code) expressed a contrary opinion to the Calcutta view, i.e., did not require such judgments. The opinion cites this decision as an express dissent from the Calcutta (Rami Deka) approach and as supporting the view that a written judgment is not required for rule 11 dismissals.
Tanaji Dagde v. Shunkar/Shankar Sakharam (1912, under the modern Code) an appeal was summarily dismissed under Order XLI, rule 11; Bombay High Court considered whether a judgment setting forth reasons was required and concluded it was not required after summary dismissal. The Court endorses the reasoning of this Bombay decision as correct, relying on the procedural ordering of Order XLI and the distinction between summary dismissal and a regular hearing demanding a judgment under rule 31.
Hanmant Valad Rakhmaji v. Annaji Hanmanta (Full Bench, Bombay) Full Bench held that an earlier Bombay High Court direction (from 1890) requiring lower courts to write judgments when dismissing appeals had not been abrogated by the new Code, and therefore in the Bombay Presidency dismissals under Order XLI, rule 11 must be supported by a judgment. The opinion describes this Full Bench decision and notes it produced a different practice in the Bombay Presidency; the Court distinguishes and critiques the scope of such directives outside that province.
Durga Thathera v. Narain Thathera (Full Bench, Allahabad) Full Bench reconsidered Samin Hasan and held that rule 31 was applicable to dismissals under rule 11 (i.e., that a judgment with reasons was required). The opinion expressly disagrees with this Full Bench's reasoning, identifies what it considers erroneous premises (confusing judgment with decree/order, ignoring section 142), and rejects the conclusion that rule 31 applies to such dismissals.
Ma Saw v. Ma. Bwin Byu Single Judge in Rangoon relied partly on Calcutta view and, importantly, on the fact that District Judges of Burma had been directed to write judgments when dismissing appeals under Order XLI, rule 11. The Court views this decision as containing defects similar to the Calcutta and Allahabad Full Bench decisions and considers the reliance on local directions (to write judgments) to be an insufficient basis for applying rule 31 to summary dismissals.
Surendra Nath Some v. Raghunath Dutt; Altaf Ali v. Jamsur Ali; Hari Dasi Devi v. Gadadhar Roy (Calcutta High Court decisions) These decisions reflect a settled Calcutta practice requiring judgments to support dismissals under Order XLI, rule 11. The opinion notes these decisions as representing a settled practice in Calcutta but explicitly disagrees with the views therein.

Court's Reasoning and Analysis

The Court's analysis proceeds along these principal lines (reciting only the reasoning contained in the opinion):

  1. Textual analysis of the statutes and rules:
    • Order XLI, rule 11 sets out the procedure by which an appellate court may dismiss an appeal without serving notice and by which the appeal may be dismissed if the appellant does not appear. The rule allows the appellate court to "make an order that the appeal be dismissed."
    • Order XLI, rule 31 prescribes the form and content of the "judgment of the appellate court" after hearing: it must be in writing and state the points for determination, the decision thereon, the reasons, and relief where the decree is reversed or varied.
    • Section 2 definitions distinguish "judgment" (the grounds of a decree or order), "decree" (formal expression of an adjudication), and "order" (formal expression of any decision not being a decree). The Court emphasizes the statutory distinction between judgment and decree/order.
    • Section 142 requires that "All orders and notices served on or given to any person under the provisions of this Code shall be in writing," which the Court notes already prevents oral pronouncements of orders.
    • Order XX, rule 3 requires the judgment to be dated and signed in open court at the time of pronouncing it, and prescribes that it shall not be later altered except in specified situations.
  2. Procedural sequencing in Order XLI:
    • The Court highlights that Order XLI is structured by stages: admission (rules 9–15), hearing (rules 16–29), judgment (rules 30–34), and decree (rules 35–37). From this ordering the Court reasons that the requirements for a formal written judgment under rules 30–31 apply to regular hearings after admission and not to a preliminary or summary dismissal under rule 11.
  3. Review of conflicting authorities:
    • The Court surveys opposing High Court decisions. It approves the Bombay decision in Tanaji Dagde for reasoning that rule 31 was intended for regular hearings and not for summary dismissals, and calls that decision correct.
    • The Court criticizes the Calcutta-originated practice (Rami Deka) and the Allahabad Full Bench (Durga Thathera) for failing to respect the distinct statutory categories (judgment vs. order/decree) and for relying on premises the Court regards as erroneous (for example, asserting that rule 31 must apply because otherwise judgments could be pronounced orally, ignoring section 142's writing requirement).
    • The Court considers decisions that rely on prior administrative directions (Bombay 1890 direction or local directions in Burma) to be of limited force outside those jurisdictions and not persuasive to alter the statutory interpretation.
  4. Practical consequence and appellate review:
    • The Court notes there is no appeal from an order made under rule 11. In the provincial practice under consideration, lower appellate courts are not required to write a judgment supporting a rule 11 dismissal. On revision the High Court should examine the material presented to the lower appellate court on the application for admission and determine whether it would have acted in the same manner. The High Court itself does not ordinarily give a written judgment or reasons when disposing of an application for admission.
  5. Conclusion and disposition:
    • Applying the foregoing reasoning, the Court held that the District Judge was not required, in this province, to record a judgment under rule 31 when dismissing an appeal summarily under Order XLI, rule 11. The petition for revision was dismissed with costs. Varma, J. agreed and the Rule was discharged.

Holding and Implications

Core Ruling: The petition for revision was dismissed and the Rule was discharged. The Court held that, in the province governed by this practice, an order dismissing an appeal under Order XLI, rule 11 need not be supported by a formal written judgment under Order XLI, rule 31.

Implications:

  • Direct effect: The District Judge's form of recording the dismissal as "summarily dismissed" was upheld in this case; the revision petition was dismissed with costs.
  • Scope: The opinion emphasizes that practices differ by province and that certain High Courts (e.g., Bombay, Calcutta, Allahabad) have taken different positions; the Court rejects the view that rule 31 universally applies to rule 11 dismissals and identifies the proper approach as interpreting the procedural sequencing of Order XLI together with the statutory definitions and section 142.
  • Precedential effect: The opinion articulates and applies its interpretive view but does not purport to create a uniform rule for all provinces; it notes established practices in other High Courts and explains why those practices are not followed in this province. The immediate legal consequence is limited to the dismissal of the present petition; the Court did not purport to overrule or fully resolve the conflict among High Courts beyond explaining its reasoning.
Final disposition in the opinion: The petition is dismissed with costs; Varma, J. concurred; "Rule discharged."

This summary is based exclusively on the content of the provided opinion and does not add or infer information beyond that text.

Show full summary ...

    Makhu Sahu v. Kamta Prasad Sahu

    Courtney Terrell, C.J:— This is a petition for the revision of an order of the District Judge of Shahabad dismissing under Order XLI, rule 11, of the Code of Civil Procedure an appeal in an execution case. There is no doubt that the order was right on the merits but the question before us is whether the learned Judge was right in recording the order in the form “summarily dismissed” or whether he should have delivered a, “judgment” setting forth the reasons for his decision. There has been some conflict between the decisions of the various High Courts on this point.

    Order XLI, rule 11, is as follows:—

    “(1) The appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

    (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called, on for hearing, the Court may make an order that the appeal be dismissed.

    (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.”

    It corresponds with section 511 of the old Code hilt in the first paragraph of the rule the words “after sending for the record if it thinks fit to do so” are new and the words in the old Code “the appeal may be dismissed for default” have been replaced by the words “the court may make an order that the appeal be dismissed”. There is thus no appeal from an order made under the rule.

    Order XLI, rule 31, is as follows:—

    “The judgment of the appellate court shall be in writing and shall state—

    (a) the points for determination;

    (b) the decision thereon;

    (c) the reasons for the decision; and,

    (d) where the decree appealed from is reversed or varied the relief to which the appellant is entitled;

    and shall at the time that if is pronounced be signed and dated by the Judge or by the Judges concurring therein.”

    The contention accepted by some High Courts has been that an order under rule 11 must be justified by a “judgment” under rule 31. It is worthy of notice that there is a difference between a “judgment” and a “decree” or “order” which is indicated in section 2 of the Code itself for by the definitions

    “(9) ‘judgment’ means the statement given by the Judge of the grounds of a decree or order,

    (2) ‘decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include—

    (a) any adjudication from which an appeal lies as an appeal from an order, or

    (b) any order of dismissal for default, and

    (14) ‘order’ means the formal expression of any decision of a Civil Court which is not a decree.”

    It may further be acted that appeals are always from “decrees” or “orders” and not from “judgments” for it frequently happens that the order appealed from is right though the judgment by which it is, supported is erroneous. Order XLI prescribes the procedure in dealing with appeals. Before an appeal is heard and adjudicated upon it must first be “admitted”. Rules 9 to 15 inclusive deal with the procedure on admission of an appeal. Rules 16 to 29 inclusive deal with the procedure on the hearing of an appeal which has been admitted under the preceding rules. Rules 30 to 34 inclusive deal with the judgment to be delivered after hearing. Rules 35 to 37 inclusive deal with the decree which has to be drawn up in pursuance of the judgment of the Court and under section 142

    “All orders and notices served on or given to any person under the provisions of this Code shall be in writing.”

    By Order XX, rule 3,

    “The judgment shall be dated and signed by the Judge in open Court at the time, of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by section 152 or on review.”

    Some High Courts have directed that certain orders including orders dismissing an appeal under Order XLI, rule 11, shall be supported by a “judgment”. But such is not the case in this province. In Rami Deka v. Brojo Nath Saikia decided under the old Code two Judges of the Bengal High Court decided that an order dismissing an appeal under section 551 should be supported by a judgment setting forth the grounds of the decision. The learned Judges are not reported as having given any reasons for their decision. Nevertheless this case seems to be the origin of the practice in Bengal which has since been followed. In 1908 also under the old Code a contrary opinion was expressed by two Judges of the Allahabad High Court in Samin Hasan v. Piran* which expressly dissented from the Calcutta opinion referred to above. In 1912 in Tanaji Dagde v. Shunkar Sakharam under the modern Code an appeal was summarily dismissed under Order XLI, rule 11. The Bombay High Court dealt with the question as to whether a judgment setting forth the reasons was required. Relying upon the order in which the various matters are deal with in Order XLI they pointed out that the requirements of rules 30 and 31 as to judgments referred only to regular hearings at which issues are raised in the presence of the parties with the record before the court and that it was never intended by the legislature that judgments should be required save after regular hearing so conducted. In my opinion this decision was correct.

    The decision in 1913 was considered by a Full Bench of the Bombay High Court in Hanmant Valad Rakhmaji v. Annaji Hanmanta. It appears to have been the fact that in the year 1890 the High Court of Bombay acting under its powers had issued a distinct direction to the lower courts that when dismissing an appeal under section 551 of the old Code a judgment should be written. The Court in the case of Tanaji Dagde v. Shankar Sakharam seems to have been ignorant of the fact of this direction having been given and the Full Bench decided that the, new Code had not abrogated the direction given by the Bombay High Court. It was therefore held that in the Bombay Presidency an order of dismissal under Order XLI, rule 11, must be supported by a judgment giving grounds for the decision.

    A Full Bench of the Allahabad High Court in Durga Thathera v. Narain Thathera reconsidered the former decision of the same Court in the case of Samin Hasan v. Piran* and decided that rule 31 was applicable to cases of dismissal under rule 11. With the greatest respect I am entirely unable to agree with the reasoning of the learned Judges and it seems to me that the court ignored the distinction between a judgment on the one hand and a decree or order on the other. It is said “There can be no question that in dismissing an appeal, under Order XLI, rule 11, the appellate Court delivers a, judgment, in accordance with which the decree is prepared”. This premise which is the basis of the decision is, to my mind, erroneous. Moreover, in my opinion, the Court makes a mistake in setting forth a further false premise. It is said “If rule 31 were not to apply to judgments delivered under Order XLI, rule 11, the necessary result would be that there would be no provision of law which would require such judgments to be in writing or to be signed and dated by the Judge. A judgment under Order XLI, rule 11 could then be pronounced orally. This could not possibly have been intended, by the legislature”. I think the Court forgot section 142 under which orders and notices must be in writing. Furthermore the Court disapproved of the reasoning in Samin Hasan v. Piran* based upon the order in which the various matters dealt with under Order XLI are grouped and said that the grouping cannot be relied upon to control the effect of the provision. But in this case the grouping is strictly in accord with the proper classification of the different stages of procedure. A simple order of dismissal may be passed if the appeal is not admitted and it is not until after admission and after hearing that a judgment is required.

    The circumstances of the Bombay Full Bench decision were re-produced in Rangoon in the case of Ma Saw v. Ma. Bwin Byu before a single Judge of that Court. The learned Judge it is true based his decision partly upon the view of the Calcutta High Court and disagreed with the decision in Samin Hasan v. Piran*. Nevertheless the main ground of his judgment was the fact that as in the Bombay Full Bench case, the District Judges of Burma had been directed to write judgments when dismissing appeals under Order XLI, rule 11, and, in my opinion, the judgment of the learned Judge while sound on this point has the defects of the decisions in the Allahabad Full Bench case and the Calcutta decision and is erroneous.

    A series of decisions of the Calcutta High Court, Surendra Nath Some v. Raghunath Dutt; Altaf Ali v. Jamsur Ali; Hari Dasi Devi v. Gadadhar Roy, treat the matter as one not admitting of further discussion the practice being well settled for that Court. I am, however, unable to agree with the views therein expressed.

    In so far as the courts in this province are concerned there is far as I know no practice of requiring lower appellate courts to write judgments' in support of orders under Order XLI, rule 11. There is no appeal from such orders and in, dealing with such an order under a petition for revision the High Court should merely examine the matter presented to the lower appellate court on the application for admission and see whether or not it (the High Court) would have acted in the same manner. It is a matter of common knowledge that the High Court itself never gives any judgment or reasons in support of its order that such an application for admission be allowed or dismissed.

    I may in conclusion state that it is merely a matter of practice with this court that first appeals are admitted as a matter of course. Under the Civil Procedure Code all appeals whether from original or appellate decrees may be subjected to the preliminary test of admission and original appeals are as liable to summary dismissal as are appeals from appellate orders.

    I would dismiss this petition with costs.

    Varma, J.:— I agree.

    Rule discharged.

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    Comments

    Makhu Sahu v. Kamta Prasad Sahu
    (Mar 16, 1934)