Wort, J.:— This was an application before the learned District Judge of Muzaffarpur for the amendment of a decree. Relying upon the case of Uma Sundari Devi v. Bindu Bashini Chowdhrani the learned District Judge came to the conclusion that it was this Court and not the Court of the District Judge which had jurisdiction. The learned Judge cannot be blamed for taking this view as the case to which I have referred has been followed in a number of Courts but speaking for myself I prefer the reasoning in the case of Bapu v. Vajir, that is to say that the decree is the decree of the lower Court and not of this Court when an appeal is summarily dismissed under Order XLI, rule 11, of the Civil Procedure Code. That being so, I think the proper order to make in this case is that the case should be sent back to the learned District Judge to be heard and determined according to law. Having regard to the circumstances under which this application comes to this Court I think the proper order as to costs should be that the costs will abide the result of the hearing before the learned District Judge.
Fazl Ali, J.:— I agree. In my opinion the Civil Procedure Code itself makes a distinction between those cases where an appeal is dismissed summarily under Order XLI, rule 11(1), and those where the appellate Court after hearing the parties affirms, varies or reverses the decree appealed from. This can be made plain by comparing the language of Order XLI, rule 11, with that of Order XLI, rule 32. Some further light is thrown on the subject by referring to section 551 as it originally stood in the Code of 1882. It ran thus—
“The appellate Court may if it thinks fit after fixing a time for hearing the appellant or his pleader and hearing him accordingly if he appears at such time, confirm the decision of the Court against whose decree the appeal is made without sending notice of the appeal to such Court and without serving notice on the respondent or his pleader: but in such case the confirmation shall be notified to the same Court.”
This section was amended by the Civil Procedure Code Amending Act (VII of 1888) by substituting the words
“Dismiss the appeal”
for the words
“Confirm the decision of the Court against whose decree the appeal is made.”
This change must have had some meaning and it is plain that unless there was some distinction sought to be drawn between “the confirmation of the decree appealed from” and “the dismissal of the appeal” no amendment of the section was necessary. No such distinction, however, appears to have been recognized in Munisami Naidu v. Munisami Reddi as well as Uma Sundari Debi v. Bindubashini. I refer to these cases particularly because they seem to have been the basis of a large number of decisions in which the various High Courts except the Bombay High Court have held that where an appeal is dismissed under Order XLI, rule 11, it is the appellate Court which is to amend the decree if necessary and not the Court whose decree is appealed from. In the former case a Bench of three Judges of the Madras High Court held that the case was governed by the ruling of the Full Bench in Pichuvayyangar v. Seshayyangar where it had been held that the jurisdiction of a Court of first instance to amend a decree under section 206 was ousted by the confirmation of that decree on appeal. In the other case it was held that where an appeal is dismissed under section 551 of the Civil Procedure Code or in the case of a second appeal where the decree is one of dismissal, the effect practically is to make the decree which is confirmed the final decree to be executed in the suit; and the High Court making such order has power to amend the decree of the lower Court which has been in effect confirmed by it, so as to bring it in conformity with the judgment which is also confirmed. The only case, however, in which the result of the amendment of 1888 was fully appreciated is the case of Bapu v. Vajir. In that case Farran C.J, dealt with the matter thus:—
“The change of language made in 1888 in that section by the Legislature shows, we think, that it was intended that there should be a difference between the result of a dismissal under it and of a confirmation under section 577; as, indeed, we think, there must be. Dismissing an appeal is, we think, refusing to entertain it as in the case of an appeal dismissed as being time-barred. Where an appeal is dismissed under section 551, there is no decree of the High Court which can be executed, and the reasoning in the cases to which we have been referred does not apply. Mr. Govardhandas argues that the dismissal of the appeal under section 551 is a decree and appealable under section 584. That may be conceded. Still it is clearly not one confirming the decree of the lower Court. It leaves' the decree of the lower Court untouched, neither confirmed, nor varied nor reversed, and it remains we think the decree of the lower Court”
I prefer to follow this decision because the view expressed here receives considerable support from certain observations made by the Judicial Committee in Kristo Kinkar's case. In that case Sir James Colvile after referring to two Full Bench decisions of the Calcutta and Madras High Courts respectively where it had been held that when a decree of the lower Court is reversed, modified or affirmed the decree passed by the appellate Court is the final decree in the suit, added “if the question were, res integra, their Lordships would incline to the view taken by the Judges of the High Court in the present case, viz., that the execution ought to proceed on a decree of which the mandatory part expressly declares the right sought to be enforced. Considering, however, that for the reasons already given the question is not of much practical importance, their Lordships will not express dissent from the rulings of the Madras High Court and of the Full Bench of the Bengal Court further than by saying that there may be cases in which the appellate Court, particularly on special appeal, might see good reasons to limit its decision to a simple dismissal of the appeal and to abstain from confirming a decree erroneous or questionable, yet upon the examination by reason of the special and limited nature of the appeal”.
It is further to be noticed that no appellate decree is in fact drawn up where the appeal is dismissed under Order XLI, rule 11(1), and the language of Order XXI, rule 35, seems to me to suggest and even the Code does not contemplate that a decree should be drawn up in such a case. Under sub-rule (1) of this provision
“The decree of the appellate Court shall bear date the day on which the judgment was pronounced.”
Now it is very doubtful whether strictly speaking a judgment is necessary when an appeal is dismissed under Order XLI, rule 11(1), and although the Calcutta High Court and certain other High Courts are of opinion that it is necessary, the Allahabad High Court has given good reasons for holding that it is not so—[See Samin Hasan v. Piran* sub-rule (3) of Order XXI, rule 35, provides that
“the decree shall also state the amount of costs incurred in the appeal and by whom or out of which property and in what proportion such costs and the costs in the suit are to be paid.”
This plainly cannot apply when an appeal is dismissed under Order XLI, rule 11(1), as the respondent, not having appeared at that stage, can have incurred no costs.
There are two further considerations which also in my opinion go to support the view taken by the Bombay High Court in Bapu v. Vajir: (1) where an appeal is summarily dismissed the decree to be executed must be the decree of the lower Court, because the decree-holder may not even know about the appeal or its dismissal under Order XLI, rule 11(1); and (2) the provision in sub-rule (3) of Order XLI, rule 11, requiring that the dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred seems to suggest that the decree of the lower Court is left untouched. A comparison between the language of this sub-rule and that of Order XLI, rule 37, which directs that a copy of the judgment and of the decree of the appellate Court shall be sent to the Court which passed the decree appealed from shows that the Legislature meant to draw a distinction between the mere dismissal of an appeal under Order XLI, rule 11 and its disposal in ordinary course in the presence of both the parties. The only flaw that may be found in the view taken by the Bombay High Court is that the dismissal of the appeal being conceded to be a decree within the meaning of section 2 of the Civil Procedure Code, there would be two decrees in existence, one of the lower Court and the other of the Court dismissing the appeal under Order XLI, rule 11(1). This somewhat technical argument need not, however, deter us from adopting the view, especially when there is nothing in the Code to prevent two such decrees being simultaneously in existence and when in spite of the dismissal of the appeal under Order-XLI, rule 11(1), the decree to be executed is the decree of the lower and not of the Court dismissing the appeal. In my opinion, therefore, if any amendment is to be made in the decree it should be made by the Court below and not by this Court.
Rule made absolute.