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J.R. Williams Vs. T.A. Brown and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All109
AppellantJ.R. Williams
RespondentT.A. Brown and ors.
Excerpt:
'decree' - order dismissing a suit under civil procedure code, section 381--civil procedure code, section 2--appeal. - - my answer to the question referred to the full bench is, that the order dismissing the suit for failure by the plaintiff to find security for costs as ordered, was a 'decree......that if security were not furnished within a certain time the suit should be dismissed. the security was not furnished within the time allowed; and thereupon a proceeding was drawn up, the effect of which was to dismiss the suit. the question before us is, whether this proceeding was the decree in the suit or whether it was a mere order. the definition of 'decree' in section 2 of the code means that where the proceeding of the court finally disposes of the suit, so long as it remains upon the record, it is a decree; and it is impossible to contend that so long as this proceeding remained upon the record, the suit was not disposed of. i am therefore of opinion that the order in question was the decree in the suit, and was therefore appealable as a decree, and consequently is not open to.....
Judgment:

W. Comer Petheram, C.J.

1. I am of opinion that the order under consideration was a 'decree' within the definition of that term contained in Section 2 of the Civil Procedure Code. The plaintiff took the steps necessary to initiate his claim against the defendant, and filed his plaint. The defendant then made an application under the Code that the plaintiff be ordered to find security for costs, and accordingly an order to that effect was passed, which, upon the face of it, contained a provision that if security were not furnished within a certain time the suit should be dismissed. The security was not furnished within the time allowed; and thereupon a proceeding was drawn up, the effect of which was to dismiss the suit. The question before us is, whether this proceeding was the decree in the suit or whether it was a mere order. The definition of 'decree' in Section 2 of the Code means that where the proceeding of the Court finally disposes of the suit, so long as it remains upon the record, it is a decree; and it is impossible to contend that so long as this proceeding remained upon the record, the suit was not disposed of. I am therefore of opinion that the order in question was the decree in the suit, and was therefore appealable as a decree, and consequently is not open to revision by this Court under Section 622 of the Code. My answer to the question referred to the Full Bench is, that the order dismissing the suit for failure by the plaintiff to find security for costs as ordered, was a 'decree.'

Straight, Oldfield, Brodhurst, and Tyrrell, JJ.

2. concurred.


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