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Case Number
Judges
  • Rowland, J.
Acts
  • Section 2(2) of the CPC, read with S. 47.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Rowland, J.
Acts
  • Section 2(2) of the CPC, read with S. 47.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

Jamuna Prasad Rai (the judgment-debtor) instituted Miscellaneous Appeal No. 240 of 1936, a second appeal against an appellate decision of the District Judge of Shahabad. That appellate decision had summarily dismissed, under Order 41, Rule 11, sub-rule (1) of the Code of Civil Procedure (CPC), his first appeal from an order of the Munsif, Third Court, Arrah. The Munsif had disallowed Jamuna Prasad Rai's objection to the execution of a decree on the ground that the judgment-debtor had already made full payment of the decree-holder's claim out of court.

Jamuna Prasad Rai also filed Civil Revision No. 489 of 1936 seeking revision of the District Judge's decision in the event that it was held that no appeal lay from the appellate order. The Munsif, in the execution proceedings, had considered evidence tendered by the judgment-debtor and found the witnesses to be interested, their statements discrepant and the receipt relied upon to be highly suspicious; on that basis he rejected the plea of payment. The District Judge's appellate order consisted only of the words: "Heard. The appeal is summarily dismissed".

The Court observed that the original suit, enforcement of whose decree gave rise to these proceedings, was of a kind cognizable by Courts of Small Causes and that the value of the subject-matter did not exceed Rs. 500; accordingly, by Section 102 of the CPC no second appeal lies in such a case. On that statutory ground the Court found Miscellaneous Appeal No. 240 not maintainable. The Court also considered whether the summary dismissal should be set aside in revision.

Legal Issues Presented

  1. Whether the dismissal of an appeal under Order 41, Rule 11, sub-rule (1) of the CPC amounts to a "decree" within the meaning of Section 2(2) read with Section 47, and is therefore a decision from which a second appeal may lie.
  2. Whether summary dismissal of an appeal under Order 41, Rule 11 (without a written judgment) furnishes grounds for a second appeal or for interference in civil revision.
  3. Whether the District Judge's brief note "Heard. The appeal is summarily dismissed" was sufficient to indicate acceptance of the first court's findings and hence sufficient for disposal of the matter.
  4. Whether, in the specific facts of this case, a second appeal was maintainable given the statutory bar in Section 102 of the CPC (suit within jurisdiction of Courts of Small Causes and value not exceeding Rs. 500).

Arguments of the Parties

Judgment-debtor's Arguments

  • The judgment-debtor (Jamuna Prasad Rai) contended that he had paid Rs. 478 to the decree-holder out of court and sought that that fact be recorded under Order 21, Rule 2 of the CPC, which would discharge the decree and render execution improper.

The opinion does not contain a detailed account of the decree-holder's separate legal arguments; the Munsif's findings, however, record that the evidence supporting the alleged payment was rejected as unreliable.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Makhu Sahu's case (reported at 13 Pat 540) That the law does not require the lower appellate Court to write a judgment under Order 41, Rule 31 when an appeal is summarily dismissed; and that the decision in that case should be confined to that point. The Court relied on Makhu Sahu's case to limit the proposition that summary dismissal without a written judgment, by itself, is not necessarily a ground for a second appeal. The Court emphasized that Makhu Sahu's case was not intended to decide more than this limited point, and that stray observations in that decision should not be treated as authority for a broader rule.
Reported case at 17 PLT 607 An instance in which a summary dismissal under Order 41, Rule 11 of an appeal from a title-suit was set aside and the appeal remanded to be reheard. The Court noted this authority but expressly stated that it laid down no general rule. It did not treat 17 PLT 607 as expanding the statutory grounds of second appeal (Section 100) or the scope of civil revision (Section 115).

Court's Reasoning and Analysis

The Court began by examining definitions and the substance of adjudicative acts. It read Section 2(2) (definition of "decree") together with Section 47 and contrasted the language of a "decree" with that of an "order" in Section 2(14). The Court rejected form (presence or absence of a formal written judgment) as the decisive criterion; instead, it held that the essential distinction turns on the nature of the decision—whether it is an adjudication of a particular kind—rather than on its manner of expression.

The Court then distinguished between dismissals under Order 41, Rule 11 sub-rule (1) and sub-rule (2). It explained that sub-rule (2) (“an order that the appeal be dismissed” for non-appearance) was intended not to be appealable because (a) non-appearance means the Court has not considered the merits and (b) alternative remedies are provided in the Code (Order 41, Rule 19 for re-admission and, if refused, an appeal under Order 43, Rule 1(f)). By contrast, dismissal under sub-rule (1) following hearing, in substance, expresses a final adjudication that the appeal is without merit and thus has the finality characteristic of a "decree" under Section 2(2).

The Court addressed prior authority. Makhu Sahu's case was regarded as directly authoritative only for the proposition that the law does not require a written judgment under Order 41, Rule 31 when an appeal is summarily dismissed; it did not support the wider idea that all summary dismissals are non-appealable. The Court observed that some language in Makhu Sahu's judgment had been inadvertently expressed in an overbroad way but should not be read beyond the precise point decided in that case.

The Court noted a practical difficulty that could arise if summary dismissals were treated as non-appealable: a District Judge who declines to write reasons could, by a short note alone, give finality to an erroneous point of law. This potential consequence supported treating dismissals under sub-rule (1) differently from dismissals for default of appearance under sub-rule (2).

However, the Court declined to decide generally whether a second appeal lies from every appellate decision under Section 47 because, in the present case, the original suit fell within the limits of Section 102 (suits cognizable by Courts of Small Causes, value not exceeding Rs. 500), which disallows second appeals. Accordingly, the second appeal was not maintainable on statutory grounds, and the Court proceeded to consider revision.

Turning to the facts, the Court identified the single determinative question as whether the alleged payment had in fact been made. The Munsif had found the payment claim to be false, and the District Judge's brief dismissal was understood by the Court to signify acceptance of that finding. The Court expressed that it would have been preferable for the District Judge to indicate expressly acceptance of the Munsif's findings, but held that under Section 115 there was no basis for interference in revision merely because the District Judge did not add explicit words of acceptance. The Court therefore found no ground to set aside the summary dismissal in revision.

Holding and Implications

Holding: The miscellaneous appeal and the civil revision are both DISMISSED. The Court specifically recorded that Miscellaneous Appeal No. 240 is not maintainable on the ground that Section 102 of the CPC bars a second appeal in suits of the nature cognizable by Courts of Small Causes where the subject-matter value did not exceed Rs. 500. The civil revision was dismissed on the merits: the District Judge's summary dismissal was taken to accept the Munsif's finding that the alleged payment was untrue, and Section 115 did not warrant interference.

Consequences and Implications:

  • Direct effect on the parties: Jamuna Prasad Rai's second appeal and revision were dismissed; the Munsif's rejection of the payment plea stands; costs were awarded against the appellant; and there will be no separate hearing fee in the civil revision.
  • Scope as precedent: The Court did not lay down a broad new rule; it confined itself to statutory interpretation and applied existing authorities narrowly (notably Makhu Sahu's case and the decision reported at 17 PLT 607). The Court explicitly avoided deciding the wider question whether all dismissals under Section 47 are subject to second appeal because the statutory bar in Section 102 decided maintainability in this instance.
  • No novel legal principle was established beyond the Court's interpretive conclusions about the difference in character between dismissals under Order 41, Rule 11(1) and Rule 11(2), and the limited reading of Makhu Sahu's case.

Disposition recorded in the opinion: "Appeal and revision dismissed."

Show full summary ...

    Jamuna Prasad Rai v. Rajballam Rai .

    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 O. 41, R. 11 sub-r. (1) of the CPC, 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) of the CPC, read with S. 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 hearing a judgment in conformity with O. 41, R. 31 of the CPC, has been written, and cases where an appeal has been dismissed summarily under O. 41, R. 11 are on the same footing. In the former class of cases a full and formal decree in accordance with O. 41, R. 35 is drawn up. But when an appeal is dismissed under O. 41, R. 11 the practice is merely to notify the dismissal to lower Court under O. 41, R. 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 O. 41, R. 11 is not a decree because the words “formal expression” appear in the definition of a ‘decree’: S. 2(2) of the Code. But the same words (“formal expression” appear in the definition of an ‘order’: S. 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 S. 2(14). Beading 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 O. 41, R. 11, sub-r. (1) is appealable as a decree whereas dismissal under R. 11, sub-r. (2) is not. The difference between the wording of sub-r. (1) and sub-r. (2) of O. 41, R. 11 is significant. Sub-r. (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 O. 41, R. 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 O. 41, R. 19 by application for the re-admission of the appeal, and if that application is refused an appeal lies under O. 43, R. 1(f). But an appellant has no such remedy when his appeal is dismissed under O. 41, R. 11, sub-r. (1). Such a dis missal has, so far as the Court pronouncing it is concerned, the finality which is an essential ingredient in the definition of “decree” in S. 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-r. (1) and in sub-r. (2) of O. 41, R. 11 is apparent on reference to the old Code, S. 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-r. (1) would amount to a decree but ‘an order that the appeal be dismissed’ under sub-r. (2) would not.

    4. A curious consequence in some cases follows if it were held otherwise. The first Court, let us suppose, has given its findings of fact and has also decided a question or questions of law such as whether a shorter or a longer period of limitation governs the suit. The Code provides for reconsideration of the findings of fact in a first appeal and of the correctness of the law both in first and in second appeal. If, however, no second appeal lies from a dismissal under O. 41, R. 11(1) the consequence follows that a District Judge by not writing a judgment can give an erroneous decision on a point of law a finality which it would not have if he had given reasons in support of it. It is said, however, that 13 Pat 5401 is authority for the contrary view, namely, that there is no distinction between the two cases and that there is no appealable decree in either case. It is a well known principle that every case is authority for what it decides and no more; and the point for decision in Makhu Sahu's case was whether the law required the lower appellate Court to write a judgment even while summarily dismissing the appeal. In Makhu Sahu's case it was decided that the law does not demand a judgment under O. 41, R. 31, when an appeal is summarily dismissed. For this much Makhu Sahu's case is direct authority; and I have been told by both the learned Chief Justice and the learned Judge who was his colleague that it was not intended to be an authority for more than that. The observations in the judgment (at p. 542 of the report) quote the words “the Court may make an order that the appeal be dismissed” from sub-r. (2), and proceed ‘there is thus no appeal from an order made under the rule’. This was said with reference to sub-r. (2). The remark (at p. 546 of the report), ‘there is no appeal from such orders’, was made inadvertently in a context which made it appear applicable to dismissals under both sub-rr. (1) and (2). Makhu Sahu's case, therefore, does not establish that a second appeal is wholly incompetent but that summary dismissal without writing a judgment is not by itself a good ground for second appeal.

    5. I have not, however, in the present case to decide whether from the appellate decision on a case under S. 47 a second appeal lies, because the suit in execution of whose decree the case arose was a suit of the nature cognizable by Courts of Small Causes and the value of the subject matter of the original suit did not exceed five hundred rupees; and by Section 102 of the CPC, there is no second appeal in such a case. Second (Misc. 5) Appeal No. 240 is on this ground not maintainable. I have to consider whether in the case before me the dismissal of the appeal should be set aside in revision. The judgment-debtor preferred an objection on the ground that he had made a payment of Rs. 478 to the decree-holder out of Court which he asked the Court to record under O. 21, R. 2. The Munsif before whom the execution was pending considered the evidence adduced by the judgment-debtor and found that the witnesses were interested, their statements were discrepant, and the receipt itself was highly suspicious. He decided that the plea of payment was false and rejected the application. The District Judge's decision was limited to these words: “Heard. The appeal is summarily dismissed”.

    6. It is clear from the decision in Makhu Sahu's case that the law did not require the learned District Judge to write a judgment. But I have been referred to 17 PLT 607,2 a case in which the summary dismissal under O. 41, R. 11 of an appeal from the decision in a title suit was set aside and the appeal remanded to be reheard. But that case laid down no general rule or principle. I do not read it as extending the grounds for second appeal beyond those stated in S. 100 or the grounds for interference in civil revision beyond those which are to be found in Section 115 of the CPC.

    7. In the original suit the trial Court had framed a number of issues, and the learned Judges may have felt a difficulty in determining on what findings the lower Court's decree was affirmed by the District Judge and whether those findings were sufficient for the disposal of the suit. District Judges can avoid putting the Court of second appeal in such a difficulty by indicating in a few words what findings of the first Court are accepted and made the basis of the appellate decision. I do not in the present case feel any such difficulty.

    8. There was only one point for determination, namely, the question of fact whether the payment alleged by the judgment-debtor had been made or not. I have no doubt that in dismissing the appeal the District Judge intended to accept the finding of the Munsif that the payment was not true, and that finding if accepted was sufficient for the disposal of the matter.

    9. It might have been better if the District Judge had said explicitly that the Munsif's decision appeared to him to be correct for the reasons given therein. But S. 115 of the Code will not justify my interference in revision simply on the ground that had I been in the District Judge's place I should not have dismissed the appeal without expressing in definite words my acceptance of the finding of the first Court. The miscellaneous appeal and civil revision are both dismissed with costs. There will not be a separate hearing fee in the civil revision.

    K.B/A.L

    10. Appeal and revision dismissed.

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    Comments

    Jamuna Prasad Rai v. Rajballam Rai .
    (Feb 26, 1937)