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Jagarnath Singh Vs. Budhan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal115
AppellantJagarnath Singh
RespondentBudhan and ors.
Cases ReferredRamchandra Pandurang Naik v. Madhav Purushottam Naik I.L.R.
Excerpt:
appeal - order dismissing an appeal for default - decree, definition of--civil procedure code (xiv of 1882), sections 2 and 556. - .....558), and it gives him the right of appeal against the order refusing such an application. similar provision is made in regard to a plaintiff whose suit is dismissed on default. but the law does not expressly give an appellant the right to appeal directly against an order under section 556. we cannot agree with the learned judges of the bombay high court that an order dismissing an appeal on default is the 'formal expression of an adjudication upon a right claimed.' it seems to us rather that through his default the appellant has lost his right to obtain the adjudication of his right claimed, that is, the right claimed in the proceedings or suit. the right to be heard does not in our opinion come within the definition of a decree, and by providing specially for redress against such.....
Judgment:

Prinsep and Ghose, JJ.

1. This is a second appeal against an order passed by the Lower Appellate Court under Section 556 of the Code of Civil Procedure in consequence of the default of the appellant.

2. Objection is taken by the respondents that no appeal lies.

3. As an authority for the appeal the pleader for the appellant cites the case of Ramchandra Pandurang Naik v. Madhav Purushottam Naik I.L.R. 16 Bom. 23. That case is, however, different from the case before us, inasmuch as the appellant in this case was not represented, and this appeal was dismissed under Section 556. We cannot, however, agree with the learned Judge of the Bombay High Court that an order dismissing an appeal on default properly falls within the definition of a decree as contained in Section 2 of the Code. The law enables an appellant to apply for there-admission of his appeal (section 558), and it gives him the right of appeal against the order refusing such an application. Similar provision is made in regard to a plaintiff whose suit is dismissed on default. But the law does not expressly give an appellant the right to appeal directly against an order under Section 556. We cannot agree with the learned Judges of the Bombay High Court that an order dismissing an appeal on default is the 'formal expression of an adjudication upon a right claimed.' It seems to us rather that through his default the appellant has lost his right to obtain the adjudication of his right claimed, that is, the right claimed in the proceedings or suit. The right to be heard does not in our opinion come within the definition of a decree, and by providing specially for redress against such an order it seems to us that the law does not contemplate an appeal against such an order.

4. With the exception of the case cited there is ample authority for holding that an. appeal against an order under Section 556 is not admissible.

5. The appeal is, therefore, dismissed with costs.


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