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Bai Divali Vs. Vishnav Manordas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in4Ind.Cas.829
AppellantBai Divali
RespondentVishnav Manordas and ors.
Excerpt:
civil procedure code (act v of 1908), section 2(2) - decree not drawn up--appeal. - - if as the unsuccessful party she had directed her agent to apply that a decree should be drawn up against which an appeal could have been preferred, the result might have been different......opinion, we think the appeal to this court cannot be entertained because there is in fact no formal decree. a reference to order xx will show that a decree is something different from a judgment: the decree has to agree with the judgment and rule 6 and rule 7 prescribe what the decree shall contain. section 33 also leads to the same conclusion for it provides that the court after the case has been heard shall pronounce judgment and on such judgment a decree shall follow; that judgment may be either preliminary or final.6. the appellant has only herself to thank for this result. if as the unsuccessful party she had directed her agent to apply that a decree should be drawn up against which an appeal could have been preferred, the result might have been different. but we cannot allow.....
Judgment:

1. In this cafe the Subordinate Judge in an administration suit upon issue No. 3 decided in effect a substantial question of right between the parties, and Having so decided lie appointed receivers of all the property in question in the suit.

2. An appeal was preferred from his judgment to the District Judge and it was sought to challenge in appeal the finding upon the third issue on the ground that it was a decree. It was, however, objected that there was no decree and the learned District Judge held that there was no decree which could be the subject of an appeal. He, therefore, disposed of the appeal confining the objections of the appellant to the order for the appointment of receivers.

3. Against his decision with reference to the appointment of receivers, no second appeal would lie, but the appellant comes here in second appeal contending that there has been a decree with reference to the question raised in the third issue and that the learned District Judge was wrong in declining to hear the appeal with reference to it.

4. Now a 'decree' under the Civil Procedure Code 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 it may be either preliminary or final.

5. It was apparently the opinion of the learned District Judge that if the decision upon the third issue had been embodied in a formal expression, such as is contemplated by the Code and called a decree, still no appeal would have been maintainable. Without saying that we agree with the Judge in his hypothetical opinion, we think the appeal to this Court cannot be entertained because there is in fact no formal decree. A reference to Order XX will show that a decree is something different from a judgment: The decree has to agree with the judgment and Rule 6 and Rule 7 prescribe what the decree shall contain. Section 33 also leads to the same conclusion for it provides that the Court after the case has been heard shall pronounce judgment and on such judgment a decree shall follow; that judgment may be either preliminary or final.

6. The appellant has only herself to thank for this result. If as the unsuccessful party she had directed her agent to apply that a decree should be drawn up against which an appeal could have been preferred, the result might have been different. But we cannot allow the provisions of the Civil Procedure Code to be disregarded by appellants who seek to take advantage of the rule which allows of appeals from decree. We, therefore, dismiss the appeal with costs.


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