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Gulab Rai Vs. Mangli Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All42
AppellantGulab Rai
RespondentMangli Lal
Excerpt:
civil procedure code, sections 2, 54(c), 582, 622 - 'decree'--order rejecting plaint--plaint held to include memorandum of appeal--order rejecting appeal--act xv of 1877 (limitation act), section 4--high court's powers of revision. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the..........that the order of the district judge was a 'decree' within the meaning of section 2 of the civil procedure code; that it was appealable, and could not, therefore, be made the subject of revision.2. there can be no doubt that 'an order rejecting a plaint' is treated by the code as a 'decree,' under the express words of section 2, and the learned pandit contends, that with reference to the provisions of the last paragraph of section 582, the word ' plaint,' as used in section 2, must be understood to include memorandum of appeal. he further contends that the first part of the definition of 'decree ' given in section 2 is sufficiently broad to include orders such as the one now under consideration.3. on the other hand, the learned pleader for the petitioner relies upon a ruling of a.....
Judgment:

Mahmood, J.

1. This is an application under Section 622 of the Civil Procedure Code, for revision of an order of the District Judge rejecting an appeal as barred by limitation. The learned Pandit who has appeared on behalf of the opposite party has raised a preliminary objection that the order of the District Judge was a 'decree' within the meaning of Section 2 of the Civil Procedure Code; that it was appealable, and could not, therefore, be made the subject of revision.

2. There can be no doubt that 'an order rejecting a plaint' is treated by the Code as a 'decree,' under the express words of Section 2, and the learned Pandit contends, that with reference to the provisions of the last paragraph of Section 582, the word ' plaint,' as used in Section 2, must be understood to include memorandum of appeal. He further contends that the first part of the definition of 'decree ' given in Section 2 is sufficiently broad to include orders such as the one now under consideration.

3. On the other hand, the learned pleader for the petitioner relies upon a ruling of a Division Bench in Gajraj Singh v. Bhagwant Singh Weekly Notes 1883 p. 255 in which Stuart, C.J., and Tyhrell, J., held that an order rejecting a memorandum of appeal, for failure of the appellant to supply the deficiency of stamp, was not appealable as a decree. The case, however, is not on all fours with the present case, and whatever view we ourselves might have taken in that case, we do not regard it as governing the question now before us, though the ratio decidendi bears upon this case. The power exercised by the Judge in that case could have been exercised only under Section 54(b), read with the last part of Section 582 of the Code, and the proposition of law laid down in that case may seem doubtful, but we are not directly concerned with the point decided in that case.

4. In the Civil Procedure Code there is no separate provision which allows the Appellate Court to 'reject' a memorandum of appeal on the ground of its being barred by limitation. Section 543 is limited to cases in which the memorandum of appeal is not drawn up in the manner prescribed by the Code, and it is only by applying Section 54(c), mutatis mutandis (as provided by the last part of Section 582), to appeals that the Code can be understood to make provision for rejection of appeals as barred by limitation. However, Section 4 of the Limitation Act clearly lays down that every 'appeal presented after the period of limitation prescribed therefor shall be dismissed.' It is therefore clear that the order of the District Judge in this case must be taken to be one which falls under the definition of 'decree' within the meaning of Section 2 of the Code, as the order, so far as the Judge was concerned, disposed of the appeal. We do not think any other view can give effect to the provisions of the Code, for we cannot hold that the Legislature intended such orders to be final.

5. The learned pleader for the petitioner, however, contends that the view which we have taken is inconsistent with the ratio decidendi of a recent ruling of this Court in Dianatullah Beg v. Wajid Ali Shah I.L.R. 6 All. 438 to which one of us was a party. But the point decided in that case was different to the one now before us, and the question of interpretation there related to the language of the Limitation Act, and not to that of the Civil Procedure Code.

6. The order to which this application for revision relates was, therefore, appealable, and cannot be dealt with by this Court in revision under Section 622 of the Civil Procedure Code. The application is dismissed with costs.


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