1. The petitioner applied to the lower appellate Court for an amendment of the decree. The respondents, however, had filed a second appeal to this Court, which was dismissed in limine under Order 41, Rule 11. The question that arises is whether the decree to be amended is the decree of this Court in second appeal or the decree of the lower appellate Court. The lower Court dismissed the application for amendment on the ground that the application should have been made in this Court.
2. The learned advocate for the petitioner, while conceding that if notice had issued in second appeal and the second appeal had been disposed of after hearing then the amendment application should have been made to this Court, argues that the dismissal of the second appeal in limine under Order 41, Rule 11 does not amount to a decree. It merely dismisses the appeal, it is said, leaving the decree of the lower appellate Court in force. In Muniswami Naidu v. Muniswami Reddi I.L.R.(1898) Mad. 293, it was held that when an appeal was dismissed in limine a decree had to be passed by the appellate Court and that decree superseded the decree of the lower Court. It is however argued that the law is now different, because in the old Code, which was in force when Muniswami Naidu v. Muniswami Reddi I.L.R.(1898) Mad. 293 was decided, the appellate Court was required to confirm the decree in dismissing the appeal. The wording of Order 41, Rule 11 says nothing about confirming the decree of the lower Court. It is argued that on account of this change in procedure, it is no longer necessary to pass a decree, after an appeal is dismissed under Order 41, Rule 11 and that therefore the proper Court in which to file an application for amendment is the lower Court.
3. Before referring to the one or two cases which have dealt with this question, it may be pointed out that the procedure in this Court has been throughout uniform and was not changed when the present Code of Civil Procedure was drawn up. When an appeal is dismissed under Order 41, Rule 11, a decree is drawn up in precisely the same form as when it is dismissed after notice, except that necessarily there is no reference to any advocate appearing for the respondent and no mention of costs. Indeed, there is no difference in principle between a dismissal in limine and a dismissal after notice, in cases where it is not necessary to call upon the respondent to reply.
4. In Batuk Prasad Singh v. Ambica Prasad Singh I.L.R.(1931) Pat. 409 it was held that there was a fundamental difference between the law under the old Code and the law under the new Code that made obsolete the earlier decisions of the Madras High Court in Pichuvayyangar v. Seshayyangar (1894) 5 M.L.J. 39 : I.L.R. Mad. 214 and Muniswami Naidu v. Muniswami Reddi. I.L.R.(1898) Mad. 293 It was pointed out that in Order 41, Rule 11, there is no mention of a decree, whereas in Rule 32 of the same order it is laid down that the judgment of the appellate Court may be one ' for confirming, varying, or reversing the decree ' and that in order to confirm the decree it is necessary for the appellate Court to draw up a fresh decree. It was also argued then that Rule 35, which describes the form that a decree should take could not apply to orders passed under Order 41, Rule 11, because some of the provisions of Rule 35 would not apply to appeals disposed of in limine. It seems to me, however, that an order dismissing an appeal is a decree within the meaning of Section 2(2), because it is a formal expression of an adjudication which conclusively determines the rights of parties. It seems to me not to make any difference that notice does not go to the respondent; for a notice to respondents will only be necessary if the Court thinks it necessary to hear the respondents in order to determine the questions that arise in the appeal. Even when an appeal is admitted, it is not always that the respondent is called upon to reply; and the fact that it might not be necessary to hear the respondent cannot make the decision any the less a final determination of the rights of the parties. It also seems to me that if an appeal is dismissed, that dismissal entails a confirmation of the decree of the lower Court; for that is clearly the effect of it. If an order passed under Order 41, Rule 11 is a decree and confirms the decree of the lower Court and Rule 35 applies to orders passed under Order 41, Rule 11, then it would seem that the decree so passed in appeal would supersede the decree of the lower Court in the same way as if notice had gone to the other side.
5. Although there is great deal to be said for the argument in Batuk Prasad Singh v. Ambica Prasad Singh I.L.R.(1931) Pat. 409 yet that authority does not seem to me sufficient to warrant my holding that the procedure consistently adopted by this Court is wrong. The above view of the Patna High Court agrees with that held in the Bombay High Court and in Nagpur; but it is not the view of the Calcutta and other High Courts. This Court has, I believe, always presumed, even if it has not decided, that an order dismissing an appeal under Order 41, rule II has precisely the same effect as an order dismissing an appeal after notice under Rule 32.
6. The petition is dismissed with costs.