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Gadela Venkayamma Vs. Gadela Ramayya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1943Mad767; (1943)2MLJ348
AppellantGadela Venkayamma
RespondentGadela Ramayya
Excerpt:
- - if the respondent's argument is well-founded, the plaintiff would have no remedy at all......on the other issues the plaintiff appealed to the subordinate judge of bezwada against the decree passed in respect of the first three issues. the learned subordinate judge dismissed the appeal. he observed--and this observation i am unable to under-stand:--that if the suit had been for enhancement of maintenance, then the matter' might have been different. his reason for dismissing the appeal, as it appears from his judgment, was that no appeal lay from mere findings and that the present case did not come within any of the cases cited to him where, although the decision of the court was not expressed to be an order or decree so as to be appealable, it had been held that an appeal lay. in my opinion, it is not possible to hold, as the learned subordinate judge did, that the.....
Judgment:

Happell, J.

1. The appellant in this second appeal filed a suit for maintenance in the Court of the District Munsiff of Bezwada. In effect, she pleaded that a maintenance deed which she had executed many years before was in fact void and that she should be granted maintenance at a rate higher than that expressed to be payable in the deed. The suit was resisted on the ground that the plaintiff was precluded from claiming maintenance at a higher rate than the rate payable under the deed by the terms of the deed itself; and the claim for arrears of maintenance and for future maintenance, whether payable at the contract rate or at the rate claimed in the plaint, was resisted on the ground that the plaintiff was leading an unchaste life. Six issues were framed in the suit. The first three relate in substance to the question whether the suit was maintainable in view of the previous maintenance deed. The fourth and fifth relate to the right to future maintenance and arrears of maintenance and the sixth, to the question of a charge for the maintenance on the defendant's property. The question in this second appeal has arisen because the learned District Munsiff decided the first three issues first, Wrote a separate judgment giving his reasons for holding that the claim for enhanced maintenance was not maintainable, and issued a decree to the effect that 'issues 1 to 3 framed in the suit are found against the plaintiff' and ' that the suit be called to-morrow for evidence on other issues.' Without waiting for the decision on the other issues the plaintiff appealed to the Subordinate Judge of Bezwada against the decree passed in respect of the first three issues. The learned Subordinate Judge dismissed the appeal. He observed--and this observation I am unable to under-stand:--that if the suit had been for enhancement of maintenance, then the matter' might have been different. His reason for dismissing the appeal, as it appears from his judgment, was that no appeal lay from mere findings and that the present case did not come within any of the cases cited to him where, although the decision of the Court was not expressed to be an order or decree so as to be appealable, it had been held that an appeal lay. In my opinion, it is not possible to hold, as the learned Subordinate Judge did, that the decisions of the District Munsiff on the first three issues were mere findings, The District Munsiff has written a judgment in which he has given reasons for his findings on the issues, and the findings have been incorporated in what has been called a decree. If it is a decree, then, of course, an appeal must lie; and it is difficult to see how it can be regarded as other than an adjudication which conclusively determines the rights of the parties with regard to some of the matters in controversy in the suit. It is obvious that whether the procedure adopted by the District MunsifF is correct or not, the decree passed with regard to the first three issues has determined those issues as conclusively as if the decree had been one passed in the usual course after all the issues had been heard and the result incorporated in a single decree

2. It has been argued by the earned Counsel for the respondent that the decree passed in respect of the first three issues cannot be regarded as a decree at all, because it is neither a preliminary decree nor a final decree. This seems to me immaterial. What has actually happened in this case is that a decree has been passed in respect of the first three issues and then, as there was no stay, although an appeal was laid against this decree, a separate decree has been passed in respect of the other issues. It is true that it would be difficult to say that the first of these decrees is a preliminary decree and the second a final decree. They are separate decrees in adjudication of the several issues. It is plain, however, that the plaintiff cannot be debarred from the remedy of an appeal, merely because the trial Court has passed decrees which are defective. If the respondent's argument is well-founded, the plaintiff would have no remedy at all. It is not necessary in this appeal to consider whether the procedure adopted by the District Munsiff was or was not in accordance with law. If it was not in accordance with law, then of course the duty of the appellate Court would be to set aside the decree and direct the District Munsiff to pass only one decree in respect of all the issues. The decree, however, whether the procedure adopted was correct or not, I have no doubt was a final adjudication of the issues between the parties and so was appealable.

3. This second appeal, therefore, will be allowed with costs of the second appeal. The decree of the lower appellate Court will be set aside and the appeal will be heard on merits in the light of the observations contained in this judgment.

4. Leave refused.


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