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1 - 10 of 13 (0.31 seconds)Section 100 in The Code of Civil Procedure, 1908 [Entire Act]
Section 5 in The Limitation Act, 1963 [Entire Act]
Mitthulal And Ors. vs Badri Prasad And Ors. on 12 August, 1980
In Mitthulal v. Badri Prasad14, a Full Bench of the Madhya Pradesh High Court held as follows: (AIR p. 4, para 5)
"5. There seems to be a general consensus of judicial opinion that all orders of abatement are not decrees. Only those orders of abatement are decrees in which the Court comes to the conclusion that the right to sue does not survive on the death of the sole plaintiff or on the death of one of the plaintiffs to the surviving plaintiffs. The orders of abatement which follow consequent on the failure of the legal representative of the plaintiff to be brought on record within the period allowed by law or due to the court deciding that a particular applicant is not the legal representative, such orders do not amount to decree. The reason being that the abatement is automatic consequent on the failure of the legal representative to be brought on record within the period of limitation and no formal order is necessary. So there is no adjudication on the rights of the parties in the suit or appeal by such an order. An order under Order 22 Rule 5 cannot obviously be said to fall within the definition of decree for the following reasons: (i) the order is made only for the purpose of determining who should continue the suit as brought by the original plaintiff. It is not intended to determine and it does not, in fact, determine the rights of the parties with regard to any of the matters in controversy in suit. The question that arises for decision and actually decided is not one arising in the suit itself but is one that arises in a collateral proceeding and has to be got decided before the suit can go on; and (ii) in order to operate as a decree, the adjudication must be one between the parties to the original suit or their legal representatives, and with regard to only matters in controversy between the original parties and, therefore, cannot include a decision of the question as to whether certain individual is or is not entitled to represent one of such parties. In cases where the Court comes to the conclusion that the right to sue does not survive consequent on the death of the sole plaintiff or one of the plaintiffs to the surviving plaintiffs, there is final adjudication of the rights of the parties and the order amounts to decree."
Mamuda Khateen And Ors. vs Beniyan Bibi And Ors. on 12 August, 1976
"11. In order that decision of a court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time-barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point. Dealing with some of those decisions a Full Bench of the Calcutta High Court [S.P. Mitra, CJ, Sabyasachi Mukherjee, J (as he then was) and S.K. Datta, J] has held in Mamuda Khateen v Beniyan Bibi15 that "if the application under Section 5 of the Limitation Act was rejected the resultant order cannot be decree and the order rejecting the memorandum of appeal is merely an incidental order". The reasoning of the Full Bench was that when an appeal is barred by limitation the appeal cannot be admitted at all until the application under section 5 of the Limitation Act is allowed and until then the appeal petition, even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law."
Section 11 in The Code of Civil Procedure, 1908 [Entire Act]
K.R. Subramania Iyer vs Venkataramier And Ors. on 31 August, 1914
The language of Order 22 Rule 9(2), when carefully examined, leads us to the conclusion that it is confined to cases in which the abatement takes place by reason of an application not having been made within the time permitted by law to implead the legal representative of the deceased plaintiff or the deceased defendant, and that it has no applicability to cases in which the suit has abated on account of some other cause. This view receives support from the decision of the Madras High Court in K.R. Subramania Iyer v. Venkataramier13. Suppose, the sole plaintiff in a suit dies, and in spite of an application within six months by his legal representative the court holds that the right to sue does not survive, and consequently directs the abatement of the suit. An abatement of this character obviously stands on a different footing. It does not take place ipso facto. The court does not record a merely formal order reciting a past even, as in the case of an abatement in consequence of an application not having been made within the prescribed period to implead the legal representative, but it exercises its mind in the determination of a matter in controversy. The decision of the court directing the abatement of the suit is, in our opinion, a decree, because the right to represent the deceased is a point in controversy between the claimant and the opposite party, and the adjudicator determines their rights with respect thereto, and puts an end to the case, there being no appeal from the adjudication as an appeal from an order. An application under Rule 9 is, as observed above, incompetent and it is difficult to believe that the legislature intended that the decision of a matter, which concludes the suit, should be final and that the aggrieved party should have no remedy whatever.
Section 115 in The Code of Civil Procedure, 1908 [Entire Act]
Section 144 in The Code of Civil Procedure, 1908 [Entire Act]
Ratansingh vs Vijaysingh And Ors on 11 December, 2000
In Ratansingh (supra) the Supreme Court has held that 'decree' means a formal expression of an adjudication and the Court must conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the suit. Therefore, rejection of an application for condonation of delay was held to be not amounting to a decree and the appeal, which was dismissed as time barred, is also not a decree. In paragraph-11 of the judgment the Supreme Court held as under: