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Mt. Deoki and ors. Vs. Jwala Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All679; 113Ind.Cas.737
AppellantMt. Deoki and ors.
RespondentJwala Prasad
Excerpt:
- .....no appeal in fact lay to that court. there is another case of this court, viz.: pitam lal v. balwant singh : air1925all656 to the same effect. we are of opinion that principle applies to an equal extent to the case where the appeal is withdrawn. we cannot therefore amend the decree of the court below. the result, therefore, is that this application must be dismissed with costs.
Judgment:

Sulaiman, J.

1. This is aU270496n application for an amendment of our decree. It appears that in a partition suit the claim was decreed and in its judgment the Court below directed that mesne profits should be ascertained in the execution department. This direction was not incorporated in the decree which was prepared by the Court below. The defendants appealed to the High Court but the plaintiffs did not file any cross-objection. On the date when the appeal came up for hearing the defendants withdrew their appeal without liberty to institute a fresh appeal. They were made to pay the costs of the opposite party. An oral request was made at that time for the amendment of the decree of the Court below which we declined to entertain at that stage.

2. In our opinion when the appeal was withdrawn the order which we passed on that occasion granting permission to withdraw the appeal under Order 23, Rule 1. was not a decree so as to supersede the decree of the Court below. When an appellate Court does not judicially deal with the matter of a suit but merely permits an appeal to be withdrawn so that the decree of the Court below is left intact it cannot be said that it has confirmed the decision appealed from It merely recognizes authoritatively that the appellant does not wish to go on with his appeal. We may refer to the case of Abdul Majid v. Jawahir Lal A.I.R. 1914 P.C. 66, where their Lordships of the Privy Council laid down this proposition with regard to an appeal which had been dismissed for want of prosecution. This case was followed in Nand Lal Saran v. Dharam Kirti Saran : AIR1926All440 , where the appellate Court had held that no appeal in fact lay to that Court. There is another case of this Court, viz.: Pitam Lal v. Balwant Singh : AIR1925All656 to the same effect. We are of opinion that principle applies to an equal extent to the case where the appeal is withdrawn. We cannot therefore amend the decree of the Court below. The result, therefore, is that this application must be dismissed with costs.


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