Calcutta High Court
Amal Chandra Mondal vs Anita Biswas And Anr. on 5 July, 2005
Equivalent citations: 2006(4)CHN644
Author: Tapan Kumar Dutt
Bench: Asok Kumar Ganguly, Tapan Kumar Dutt
JUDGMENT Tapan Kumar Dutt, J.
1. Heard the learned Advocates for the parties.
2. The plaintiff/appellant filed a Title Suit No. 52 of 2002 in the Court of the learned Civil Judge, Junior Division, Bongaon against the defendants-respondents praying for a decree declaring the right, title and interest of appellant in the suit property and for permanent injunction restraining the respondents from entering the suit property and from disturbing the peaceful possession of the appellant in the suit property. It appears that the defendants-respondents are the two daughters of the plaintiff. The plaintiff/appellant has alleged that the plaintiff purchased two adjacent plots of bastu land in the name of his wife in the years 1973 and 1978 and the plaintiff had built a pucca dwelling house on the said land and that the plaintiffs wife was only a 'benamdar' but the actual owner of the property is the plaintiff himself. The plaintiff has further alleged that the defendants-respondents, sometime in the year 2002, tried to enter into the plaintiffs property and declared that they are the present owners of the suit property having purchased the same from their mother. The plaintiff has alleged that the deeds through which the defendants are claiming title to the suit property are forged deeds and that the plaintiffs wife, who was suffering from cancer at the material time, was not at all in a position to execute any such deeds. The plaintiff has challenged such deeds through which the defendants are claiming title to the suit property.
3. That the learned Trial Court by order dated 27.02.2002 granted an ad interim order of injunction directing the defendants not to interfere with the present position of the suit property and not to disturb the status quo position as regards the possession, user and nature and character of the suit property till the disposal of the injunction-petition. It appears that the defendants-respondents filed a petition alleging that the suit filed by the plaintiff/appellant is not maintainable on various grounds and prayed for hearing of the said petition and also for dismissal of the said suit on the ground of non-maintainability. That by order dated 17.03.2003 the learned Trial Court passed an order whereby the learned Trial Court decided the question of non-maintainability as a preliminary issue and held that the suit is maintainable.
4. That challenging such order dated 17.03.2003 the defendants-respondents filed a civil revision case being C. R. No. 49 of 2003 and by order dated 27.02.2004 the learned Additional District Judge, Fast Track Court, Bongaon allowed the said civil revision case by setting aside the order dated 17.03.2003. That challenging the said order dated 27.02.2004, the plaintiff filed an application under Article 227 of the Constitution of India (C. O. No.703 of 2004) in this Court.
5. His Lordship The Hon'ble Justice Girish Chandra Gupta by order dated 04.05.2004 was pleased to reject the revisional application by holding inter alia that the aforesaid order dated 27.02.2004 passed by the learned Revisional Court below is an appealable order and as such the revisional application before this Court is not maintainable. It appears from a copy of the said order dated 04.05.2004 that His Lordship The Hon'ble Justice Girish Chandra Gupta was pleased to hold that when the suit itself has been dismissed the Us has come to an end as far as the Trial Court is concerned and therefore it is a final adjudication of the suit and the order of dismissal amounts to a decree and is, therefore, appealable. His Lordship was of the view that there is no question of entertaining the application under Article 227 of the Constitution of India. The plaintiff/appellant has thereafter preferred the present second appeal.
6. It appears from a perusal of the judgment which is under challenge in this appeal that arguments were advanced on behalf of the respective parties before the learned Revisional Court below in C.R. No. 49 of 2003 by taking into consideration the provisions of the Benami Transaction (Prohibition) Act, 1988. The learned Revisional Court below in the order under challenge in this appeal came to the conclusion that there is no averments in the plaint claiming exception under Section 4(3) of the said Act and the absence of certain pleadings virtually makes the suit non-maintainable. The said learned Revisional Court below found that the suit is barred by law and as such the plaint should be rejected. The said learned Judge also found that the Trial Court has exercised its jurisdiction which is not vested in it by law and has acted in the exercise of his jurisdiction illegally and with material irregularity.
7. In this appeal a preliminary point has cropped up that is, whether an appeal or a revisional application would lie against the judgment passed in the said C.R. No. 49 of 2003.
8. The learned Advocate for the appellant submitted that on this point different views have been expressed by Hon'ble Judges, as would appear from different reported cases. The appellant's learned Advocate submitted that this point needs to be resolved first and, thus, the said learned Advocate cited certain reported decisions in this context. According to the appellant's learned Advocate an appeal is maintainable against the order which is sought to be challenged in this appeal.
9. According to the learned Advocate for the respondents no appeal can lie against the impugned order because there is no decree in existence and under Section 100 of the Civil Procedure Code, according to the said learned Advocate, an appeal shall lie to the High Court only from a decree passed in appeal by any Court subordinate to the High Court. This appeal has been heard, for the present, only on a preliminary point, that is to say, whether a second appeal is maintainable against the kind of judgment that has been delivered by the learned Revisional Court beiow in C.R. No. 49 of 2003.
10. The learned Advocate for the appellant has cited certain reported cases in connection with this point. The decision in the case of Sideswar Biswas and Anr. v. State of West Bengal and Anr. reported in 1976 (1) CLJ 470 was referred to. In the said case on an issue as to whether the suit was barred under Section 57B of the West Bengal Estates Acquisition Act, the learned Trial Court held that the suit had abated in view of the said Section 57B. A revisional application was filed by the plaintiffs in the said suit and at the hearing of the said revisional application a preliminary objection was raised with regard to the maintainability of the said revisional application. The preliminary objection was raised as to whether the order of abatement would amount to a decree and therefore an appeal should lie against the said order of abatement. The Hon'ble Single Bench of this Court held in the said case that the order impugned in the said civil revisional case did not satisfy the essentials of a decree within the meaning of Section 2(2) of the Code of Civil Procedure since the order did not amount to an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. His Lordship was pleased to hold that rights within the meaning of Section 2(2) of the Civil Procedure Code mean substantive rights in regard to the subject-matter of the suit. An interlocutory order on matters of procedure unless they determine substantive rights are not decrees and therefore the decisions on questions of limitation, jurisdiction, res judicata and maintainability of the suit which determine only plaintiffs right to sue are not decrees. His Lordship was pleased to hold in the said reported case that the expression 'abatement' in the context that was under consideration before His Lordship, means termination of suit without any decision on the merits insofar as the said suit relates to any of the matters enumerated in Clauses (a), (b) and (c) of Sub-section (2) of Section 57B and thus any order regarding abatement under Section 57B(2) does not result in adjudication or determination of any substantive rights asserted by one party and denied by the other party. It appears that the Hon'ble Single Bench in the said reported case relied upon two judgments of the Hon'ble Division Benches of this Court. In paragraphs 6 and 7 of the said reported case His Lordship was pleased to discuss the said two reported judgments of the Division Bench. But in paragraph 8 of the said reported case the Hon'ble Single Bench was pleased to take note of another decision of an Hon'ble Single Bench where the Hon'ble Single Bench held that a revisional application would not lie against an order of Trial Court declaring that the suit has abated in view of Section 57B of the West Bengal Estates Acquisition Act in view of the fact that by such order the entire suit is finally determined and therefore such order becomes appealable as decree. Paragraph 8 of the said reported case is quoted below:
8 The learned Advocates for both parties placed before me the recent decision of R. Bhattacharya J. in (10) Amritamay Ghosh v. State of West Bengal and Ors. 80 CWN 205. Bhattacharya, J. in the said case has held that the revisional application before him against an order of the Trial Court declaring that the title suit had abated in view of Section 57B of the West Bengal Estates Acquisition Act was not maintainable. The view of R. Bhattacharya, J. is that by the order impugned the entire suit had been finally determined, and therefore, the order in question was appealable as decree. Unfortunately, the decision in Amritamay Ghosh v. State of West Bengal and Ors. (supra) appears to be inconsistent with the Division Bench decisions in Subodh Gopal v. Nilabja Barani Debt (supra) and in Subodh Gopal Bose v. Burmah Shell Oil Storage and Distributing Co. Ltd. (supra). Accordingly, I am bound to follow these Division Bench decisions regarding the legal effect of abatement of a suit under special laws. R. Bhattacharya, J. was inclined to hold that the effect of abatement under Section 57B and abatement under Order 22 of the Code are same. But, an order recording abatement of a suit by the death of the sole appellant or the sole respondent is not appealable either as an appeal from decree or as an appeal from an order. Order 43 Rule (1)(k) only makes an order refusing to set aside the abatement or dismissal of a suit appealable. R. Bhattacharya, J. in paragraph 5 of his judgment had referred to the decisions of this Court in (11) Baunyddub Biswas v. Maniruddin Laskar and Ors. 32 CWN 299 and in (12) Sabitribai v. Jugal Kishore . Chakravartti, C. J. in his judgment in Subodh Gopal v. Nilabja Barani Deb's (supra) at page 1059 had explained Naimuddin Biswas's case (supra). In the Naimuddin Biswas's case (supra) one of the appellants had died and his heirs were brought on record. The said appeal was such that the right to prosecute it did not survive to the remaining appellants alone and in those circumstances the learned Advocate for the appellants had prayed that the defect of party might be remedied by the Court by taking action in favour of the heirs of the deceased appellant under Order 41 Rule 4 of the Code. Chakravartti, C.J. observed that the observation in Naimuddin Biswas's case (supra) that an order of abatement was 'virtually' a decree did not amount to saying that such an order was technically a decree, but what the Division Bench in Naimuddin Bisivas's case (supra) meant was that the abatement had terminated the rights of deceased appellant in the same manner as a decree against him would and, therefore, the Court could not properly nullify the effect of the abatement by intervening in favour of the heirs of the deceased appellant under Order 41 Rule 4 of the Code.
11. That considering other reported cases His Lordship was ultimately pleased to come to the conclusion that the order impugned in the said revisional application did not amount to a decree and was also not appealable as an order since it was not covered by the provisions of Order 43 of Rule 1 of the Civil Procedure Code. His Lordship was pleased to note that only one particular issue was discussed in the said suit and the remaining issues still remain to be determined. Paragraph 13 of the said reported case is also quoted below:
13. In view of the foregoing discussion I hold that the order impugned in the present rule did not amount to a decree. Same obviously was also not appealable as an order, for the simple reason that it was not covered by the provisions of Order 43 Rule 1 of the Code. It may be also pointed out that the Court below by the order impugned in effect disposed of only the issue No.9 and the remaining issues framed by the Trial Court still remain to be determined. Further, the Court below itself did not formally draw up any decree in the instant case.
12. The case of Shib Sharan Sha v. Janaki Nath Dey and Ors. reported at 1918 CLJ 78 was also referred to on behalf of the appellant. In the suit out of which the said case arose there were several issues but the learned Subordinate Judge took up two issues and held that the suit was not barred either by limitation or by the principle of res judicata. Against such order of the learned Subordinate Judge the defendants in the suit preferred an appeal before the learned District Judge and the learned District Judge held that the suit was barred by limitation and thus dismissed the suit and against such dismissal the plaintiff appealed to the Hon'ble High Court. This Hon'ble Court held that the learned District Judge was wrong in coming to the conclusion that there was a decree within the meaning of Section 2(2) of the Civil Procedure Code. The Hon'ble Division Bench in the said reported case was pleased to hold that the suit in the said proceeding was not finally decided and that it should be allowed to continue and thus the Hon'ble Division Bench was pleased to set aside the decree passed by the learned District Judge and to remand the case to the Court of first instance to proceed with the hearing of the suit from the point at which it left off.
13. The next case referred to by the learned Advocate for the appellant is that of Sankari Maity and Ors. v. Birendra Nath Maity, reported at Calcutta Law Times 1998(1) High Court 174. The facts, very briefly, in the said reported case were that a suit was filed for partition and accounts, that a preliminary decree was passed in said suit and an appeal was filed against the preliminary decree but the said appeal was dismissed and the parties were declared to be co-sharers. The plaintiff filed an application for passing a final decree. At that stage the defendant filed an application alleging that the plaintiffs suit is not maintainable in the Civil Court since it is barred by the Benarni Transaction (Prohibition) Act, 1988. The learned Trial Judge held that the suit is not maintainable and against such order a revisional application was filed in this. Hon'ble Court. The Hon'ble Single Judge was pleased to observe in paragraph 16 of the said reported case that the question which arose was as to whether the order of dismissal of the suit could be challenged by filing an appeal or by way of revisional application. In paragraph 19 of the said reported case His Lordship was pleased to hold that the order impugned in the said revisional case did not amount to a decree and also it was not an appealable order since it was not covered by Order 43 Rule 1 of the Civil Procedure Code and that only one of the issues was disposed of and the remaining issues in the suit still remained to be determined. His Lordship was further pleased to note that in the suit no formal decree has been drawn up. In paragraph 21 of the said reported case the learned Single Judge held that by virtue of the order challenged in the said civil revision case, no decree was drawn up and such order is only in the nature of an interlocutory order and such order was amenable to the revisional jurisdiction and that since no decree was drawn up, the petitioner could not have filed an appeal. His Lordship was pleased to hold that the dismissal of a suit on an application filed under Section 4 of the Benami Transaction (Prohibition) Act is a matter of procedure which could be challenged by filing a revisional application. Paragraph 21 of the said reported case is quoted below:
21. Since by virtue of the impugned order one decree was drawn up and it was only in the nature of an interlocutory order, on matters of procedure, such order could be amendable to the revisional jurisdiction of the Court. The jurisdiction, res judicata and maintainability of the suit which determined only the plaintiffs right to the suit and hence there is no substance in the preliminary objection. From the rationale of the above judgment there leaves no room for doubt that in the instant case no decree has been drawn up, the petitioner could not have challenged by filing an appeal. Dismissal of his suit of an application filed under Section 4 of the Benami Transaction (Prohibition) Act is a matter of procedure which could be challenged by filing a revision. In this connection another decision has also been relied upon reported in AIR 1939 Madras at page 847 in the case of Duvvada Nandessam Chowdari v. Duvvada Balkrishnamma wherein it has been held:
In order that matter should be a decree it is not enough that there is a determination, or even a conclusive determination of the rights of parties but that determination must be on matters in controversy in the suit. The expression "matter in controversy in the suit" means such matters as have been brought up for adjudication by the Court by the pleadings in the case so framed as to include them either in the beginning or by amendment made latter with the sanction of the Court. It will not do to bring up new matters were to be adjudged on the footing that by an application itself they became matters of controversy in the suit.
14. The learned Advocate for the appellant relied upon the decision reported at 2001 (2) CHN 691 Bimala Saha and Ors. v. Bijoy Kumar Saha and Ors. In the said reported case the plaintiff filed a suit for partition and in such suit an order was passed by the learned Trial Court holding that the suit was not maintainable so far as certain property is concerned. It also appears that an issue was framed by the learned Trial Court as a preliminary issue in the said reported case as to whether the suit is maintainable in view of Section 4 of the Benami Transaction (Prohibition) Act, 1988 in respect of the property which were allowed to have been purchased in benami. The learned Trial Judge in the said case answered the issue in the negative so far as Lot No. 1 property is concerned and the answer was in the affirmative in respect of the remaining Lot Nos. 2 to 7. The plaintiffs came up before this Hon'ble Court by way of a revisional application. In paragraph 2 of the said reported case His Lordship was pleased to hold that the order holding that the suit is not maintainable in respect of Lot No. 1 properties amounts to a decree within the meaning of Section 2(2) of the Code of Civil Procedure since it conclusively determines the rights of the parties in respect of those properties and the suit also stands disposed of insofar as those properties are concerned. His Lordship was of the view that disposal of the suit in respect of any of the matters in controversy is sufficient to bring the order within the definition of a decree if there is a conclusive determination of the rights of the parties. It appears that the case of Sankari Maity (supra) was referred to in the said reported case and His Lordship, after discussing the matter at length and after considering other reported cases, came to the finding that "if an issue relating to jurisdiction, res judicata, limitation or maintainability is answered in favour of a defendant, such finding must be held to be decree as it will result in dismissal of the suit itself'. His Lordship was ultimately pleased to hold that the order impugned in the said revisional case was a preliminary decree in the suit for partition and was appealable and His Lordship was further pleased to convert the said revisional application into a first appeal. Paragraphs 2, 6 and 7 of the said reported case are quoted below:
2. After hearing Mr. Roychowdhury, the learned Counsel appearing on behalf of the petitioners and Mr. Mukherjee appearing on behalf of the opposite parties and after going through the materials-on-record I am of the firm view that the order holding that the suit is not maintainable in respect of Lot No. 1 properties described in the Schedule of the plaint amounts to decree within the meaning of Section 2(2) of the Code of Civil Procedure as it conclusively determines the right of the parties in respect of those properties and the suit is also disposed of so far those properties are concerned. The fact that the entire suit has not been disposed of by the said order is inconsequential inasmuch as in order to constitute a decree it is not necessary that all the matters in controversy should be disposed of; disposal of the suit in respect of any of the matters in controversy is sufficient to bring the order within the definition of decree if such determination conclusively determines the right of the parties in respect of such matter. In the instant case, the order should be treated to be a preliminary decree in respect of Lot No. 1. Similarly, the fact that no formal decree has been drawn up will not make it any the less a decree.
6. With great respect to Panigrahi, J. I am unable to follow the aforesaid decision as a precedent for the following reasons:
(a) If an order is really a decree within the meaning of Section 2(2) of the Code, failure to draw up a formal decree by office will not make it revisable. His Lordship's attention was not drawn to the provision contained in Order 20 Rule 6A of the Code enabling a party to prefer appeal in a case before drawing up of a formal decree.
(b) In observing that the findings on the question of jurisdiction, res judicata and maintainability of a suit merely determines the plaintiffs right to sue. His Lordship relied upon such observation of Chittatosh Mookerjee, J. in the case of Sideswar Biswas and Anr. (supra). Mookherjee, J. however in arriving at such findings relied upon the following decisions: ILR 30 Born. 339 (FB); AIR 1914 Bom 149; 18 CLJ 78; and AIR 1943 Lah 140 (F.B.). However, in all the aforesaid cases, question was whether a finding in favour of plaintiff relating to the pleas of jurisdiction, limitation, res judicata or maintainability is a decree or not. The Courts answered the question in negative. In my opinion, if an issue relating to jurisdiction, res judicata limitation or maintainability is answered in favour of a defendant, such finding must be held to be a decree as it will result in dismissal of the suit itself. Therefore, those four decisions are applicable only to a case where such issues are answered in favour of a plaintiff because in such a situation the suit is not disposed of but is further required to be heard on merit. If a suit is dismissed on the ground of limitation, res judicata jurisdiction or on the ground that the same is not maintainable, the aggrieved plaintiff must prefer an appeal. He cannot prefer a revision on the ground that by such dismissal only the right to sue has been held to be barred. It is now settled law that if a Court acts without jurisdiction, its decision can be challenged if it had acted with jurisdiction, i.e. an appeal would lie to the Court to which it would lie if its order was with jurisdiction See paragraph 26 of the decision of Apex Court in the case of Janardhan Reddy v. State of Hyderabad . I however make it clear that I have not gone into the question whether the conclusion arrived at in the case of Sideswar Biswas and Anr. (supra) is correct or not as the same is beyond the scope of investigation in this revisional application.
(c) The decision of Madras High Court in the case of Duvvada Nandessam Chowdari v. Duvvada Balkrishnamma relied upon by His Lordship is wrongly described as one reported in AIR 1939 Mad 847. In the entire volume of AIR 1939 Madras no such decision is reported. Thus, in what contexts observations quoted by His Lordship were made remains unknown.
7. I thus hold that the order impugned is a preliminary decree in the suit for partition and is appealable. Since this revisional application was entertained by a Division Bench and is pending for the last eight years, instead of dismissing the same, I convert it into a first appeal. The petitioners are directed to pay balance Court-fees within a week. The office is directed to do the needful and register it after the petitioners comply with all other formalities. I make it clear that I have not gone into merit.
15. Mr. Chatterjee, learned Advocate for the respondent submitted that since no decree has been drawn up, the appellant cannot maintain this appeal. Mr. Chatterjee refers to Section 100 of the Civil Procedure Code.
16. It may be recorded here that this appeal on the aforesaid point is being heard along with C.0. No. 900 of 2004 since a similar preliminary point on a question of law is involved. We have also heard Mr. Utpal Bhattacharyya learned Advocate for the petitioners in C.O. No. 900 of 2004. Mr. Bhattacharyya submitted that if all issues are not adjudicated upon there will be no decree but only a decision.
17. It appears from the facts of the case as indicated in Shib Sharan Sha's case (supra) that in that case a number of issues were raised in the suit but only two issues were taken up as preliminary points and those two issues were decided in favour of the plaintiff. An appeal was preferred by the defendants to the learned District Judge and an objection was taken before the learned District Judge that there was no decree and as such an appeal did not lie. The learned District Judge came to the conclusion that there was a decree within the meaning of Section 2(2) of the Civil Procedure Code. The Hon'ble Division Bench of this Court was pleased to hold that such view of the learned District Judge was erroneous and that the suit has not been finally decided and it should be allowed to continue. The Hon'ble Division Bench was pleased to set aside the decree of the learned District Judge and remand the case to the Court of first instance to proceed with the hearing of the suit from the point at which it left off. Thus, it would appear that in the said reported case the preliminary issues were decided in favour of the plaintiff and the question was whether an appeal could lie against such decision.
18. In Sideswar Biswas's case (supra) the suit was filed for declaratory relief and one of the additional issues was whether the suit was barred by Section 57B by the West Bengal Estates Acquisition Act. The Trial Court held that the suit had abated in view of the said Section 57B and the Hon'ble Single Judge of this Court was pleased to hold that the order of the learned Trial Court is not a decree since the said order did not amount to an adjudication, conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit.
19. Thus, it would appear that in Shib Sharan Sha's case the preliminary issue was decided in favour of the plaintiff and as such it was held that an appeal did not lie. This is so because the suit did not come to an end and other issues remained to be decided in the suit. Thus, there was no adjudication determining the parties' rights conclusively. In such a situation it was held by the Hon'ble Division Bench that appeal did not he against the trial Court's order.
20. In Sideswar Biswas's case (supra) Section 57B in the West Bengal Estates Acquisition Act was inserted in the statute during the pendency of the suit and the learned Trial Court, after taking up the matter relating to abatement of the suit under Section 57B, held that the suit comes within the mischief of the said Section 57B and therefore, abated. The Hon'ble Single Judge in the said reported case held that the expression 'abatement' in that context meant termination of suits without any decision on merits insofar as suits relate to any of the matters as envisaged under Section 57B(2) and an order recording abatement did not result in any adjudication of any substantive rights asserted by one party and denied by the other party. His Lordship was pleased to hold that the order of the Trial Court did not amount to a decree and that it was not an appealable as an order since it was not covered by the provision of Order 43 Rule 1 CPC and formal decree was also not drawn up. It appears that the. Hon'ble Single Judge in Sankari Maity's case (supra) relied upon the said Sideswar Biswas's case (supra) and came to the. finding that the order challenged that is allowing the application under Section 4 of the Benami Transaction (Prohibition) Act, 1988 did not amount to a decree.
21. After hearing the respective submissions of the parties and also the aforementioned reported cases, we have to say, with respect, that we find it difficult to follow the ratio of the judgment in Sankari Maity's case (supra). Factually, it appears that there is some difference in between the present case which we are dealing with and Sideswar Bisivas's case (supra) as will appear from what has been narrated above. In Sideswar Biswas's case (supra) there was a question of abatement and, we observe with respect, the whole of the provision of Section 2(2) of the Code of Civil Procedure did not come up for consideration. In the present case with which we are dealing with it will appear from the impugned order that the learned Additional District and Sessions Judge, Fast Track Court, Bongaon took into consideration the provision of Order 7 Rule 11(d) of the Civil Procedure Code and held that the plaint should be rejected. In our view if the Court comes to a finding that the plaint should be rejected then the order passed by the Court should be deemed to be a decree because under the definition of decree in the Civil Procedure Code it has been said that decree shall be deemed to include the rejection of a plaint. Therefore, in our view, the impugned order is a deemed decree.
22. With respect, we cannot agree with the decision rendered in Sankari Maity's case (supra), which has also relied upon Sideswar Biswas's case (supra), because of the following reasons:
(i) In our opinion, if any issue, whether it relates to jurisdiction or res judicata or limitation or maintainability of the suit is answered in favour of the defendants then in that event the suit itself has to be dismissed and nothing remains in that suit to be decided and such decision should held to be a decree.
(ii) Order 7 Rule 11(d) of the Civil Procedure Code stipulates that the plaint should be rejected where suit appears from the statement in the plaint to be barred by any law and such rejection of plaint has been included in the definition of decree in Section 2(2) of the Civil Procedure Code.
(iii) Order 20 Rule 6A of the Civil Procedure Code allows an appeal to be preferred against a decree without filing a copy of the decree and the said provision says that a copy which is made available to the party by the Court shall for the purposes of Order 41 Rule 1 be treated as the decree. Now, it appears that by way of the Amendment Act of 1999, Order 41 Rule 1 stipulates that the memorandum of appeal should be accompanied by the copy of the judgment. Thus, in our view whether formal decree has been drawn up or not, cannot in any way affect the filing of an appeal.
23. For the aforesaid reasons, with respect, we agree with the decision of the Hon'ble Single Judge in the case of Bimal Saha (supra). We hold that the impugned order is deemed decree and an appeal lies against such a decree. In view of our above discussion we cannot accept the submission of the learned Advocate for the respondent that no appeal would lie since no decree has been drawn up.
24. But, it appears that the appellants have filed the instant second appeal against the impugned order passed by the learned Revisional Court below. There cannot be any dispute that revisional jurisdiction is a part of the appellate jurisdiction and the learned Court below passed the impugned order by exercising revisional jurisdiction which is a part of the appellate jurisdiction. In such situation, we are of the view, that the impugned order should be treated to be a deemed decree passed by the Court of First Appeal and accordingly, the appellants should have filed second miscellaneous appeal before this Court. We, accordingly, convert the present second appeal into a second miscellaneous appeal and we direct the department concerned to assign an appropriate number to the said case and again place the matter for hearing under Order 41 Rule 11 CPC before the appropriate Bench. We make it clear that we have decided only a preliminary point as indicated above.
Asok Kumar Ganguly, J.
I agree.