1. The appellant was the decree-holder in a suit decided by the District Munsiff of Chicacole. The judgment-debtor filed a petition under Section 19 of Act IV of 1938 and as the result of that petition the trial Court directed an amendment of the decree. Against the order directing the amendment an appeal was filed to the Subordinate Judge under the rule framed by the Local Government under Act IV of 1938 which rule gave a right of appeal against an order under Section 19 of that Act. The appeal petition was accompanied by a copy of the decretal order of the trial Court but not by a copy of the amended decree. The Subordinate Judge entertained the appeal as an appeal against this order and dismissed it holding that the learned District Munsiff's decision was correct. The present civil miscellaneous second appeal has been filed in this Court and it is objected that no appeal lay to the Subordinate Judge, the rule providing for a right of appeal having been declared to be ultra vires. This objection is met by a prayer from the appellant that he may be permitted to pay the deficient court-fee in the lower appellate Court treating the appeal to that Court as an appeal against the amended decree and that he may also be permitted to pay the deficient court-fee in this Court treating the civil miscellaneous second appeal as a regular second appeal,. It is undeniable that similar prayers have been granted by this Court in several cases where no objection has been raised to the procedure. No doubt the position is different in cases in which the lower appellate Court assuming a jurisdiction which was not in fact vested in it has amended the trial Court's decree. But it cannot be said that when the lower appellate Court has wrongly assumed an appellate jurisdiction but has declined to interfere with the trial Court's decree, any right of second appeal is conferred by that wrongful assumption of jurisdiction. The decisions in Raman Nambyar v. Rayiram Naman (1934) 67 M.L.J. 43 : I.L.R. 57 Mad. 777. and similar cases, would not govern a case in which the lower appellate Court has left the trial Court's decree intact.
2. The objection has been raised before us that this Court cannot treat the lower appellate Court's decision as a decision in an appeal from the amended decree when in fact the amended decree was not before the lower appellate Court at all. Order 41, Rule 1 of the Code of Civil Procedure requires that a memorandum of appeal shall be accompanied by a copy of the decree appealed from and it has been held--vide Sundaram Aiyar v. Raja Rajeswara Muthuramalinga Bethupathi (1922) 44 M.L.J. 279. - that a memorandum of appeal-which is not accompanied by a copy of the decree appealed from is incompetent. What therefore we are asked to do is to treat a competent appeal from the order amending the decree as an incompetent appeal from the amended decree and to excuse the defect in this incompetent appeal which defects were not in fact overlooked by the lower appellate Court. Had the lower appellate Court been satisfied with the record of the appeal and entertained it as an appeal against the amended decree the decision of the lower appellate Court would no doubt be appealable before us in spite of the defects in the record before that Court. But in fact the lower appellate Court did not purport or intend to treat this appeal as an appeal against the amended decree and did not overlook any defects in the appeal as presented.
3. An alternative line of argument has been based on the decision in Anna Bati Dasee v. Parameshwar Mallik I.L.R. (1937) 1 Cal. 573. , which was rather a special case arising out of facts not at all similar to those with which we are now confronted. That was a case in which the decree was in two distinct parts. To one part of the decree was appended a Very bulky Commissioner's report with a number of maps the copying of which would be extremely expensive. The other part of the decree was simple and self-contained and it was this latter part alone the correctness of which was canvassed in the appeal. The learned Judges held in the special circumstances of that case that the appeal record sufficiently complied with the provisions of Order 41, Rule 1, notwithstanding the fact that the copy of the decree did not contain the appendices to the irrelevant part of the decree. We do not consider this decision as authority for the view that in any case the appellant is entitled to attach to his memorandum of appeal a mere extract of so much of the decree as he challenges.
4. It is objected that in many of these cases under Section 19 of Act IV the practice in the mofussil Courts has been merely to direct the amendment of the decree in a particular way and to rest content with a decretal order embodying this direction without actually carrying out the amendment of the original decree. Granted so much, we have little doubt that there would be sufficient compliance with Order 41, Rule 1, if an appeal against the amended decree was accompanied by a copy of the original decree together with a copy of the decretal order directing its amendment, the two read together being the only amended decree available to the appellant. But we do not consider that the absence of any complete amendment to the original decree would be a sufficient warrant for treating the order directing the amendment as itself a sufficient substitute for the amended decree without attaching to that order a copy of the original decree.
5. It seems to us therefore to follow that there was before the lower appellate Court no valid appeal against the amended decree, nor was there any intention on the part of the lower appellate Court to entertain any such appeal. In such circumstances we do not consider it proper to treat this appeal as something which it clearly was not and merely by recovering the deficient court-fee to give this appeal a character which legally it could not possess. It follows therefore that the second appeal against the dismissal of the incompetent appeal to the lower appellate Court has to be dismissed with costs. It may of course be open to the appellant now to prefer a properly framed appeal against the amended decree with a petition to excuse the delay.
6. The enclosures filed by the advocate with the memorandum of civil miscellaneous second appeal may be returned to him.