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1 - 5 of 5 (0.29 seconds)Section 11 in The Code of Civil Procedure, 1908 [Entire Act]
The Code of Civil Procedure, 1908
Rajmal Girdharlal Marwadi vs Maruti Shivram on 13 July, 1920
6. Another contention of the respondent's vakil is that Order 43, Rule 1(d) does not help the appellant because Order 9, Rule 13 applies only to decrees in suits. He contends that though there is a decree here, it is not a decree in a suit. Though Section 20 of Schedule II of the Code of Civil Procedure directs that the application should be numbered as a suit, he contends that still it is not a suit. For this contention he relies on Rajmal Girdharlal v. Maruti Shivram (1920) I.L.R. 45 B. 329. In that case it was held that for the purpose of Section 11 of the Code of Civil Procedure, an order refusing to file an award is not res judicata in a later regular suit on the ground that the earlier proceedings was not a suit. It is unnecessary to consider that decision now. That is a decision for the purpose of Section 11 only. We are satisfied that for the purpose of Order 9, Rule 13, this is a suit and there is a decree. Order 9, Rule 13 applies. We overrule the preliminary objection and hold that an appeal lies.
Patibandala Sitaramaiya vs Patibandala Pichaiya on 22 August, 1911
4. It cannot be said that the words "case open to appeal" should be necessarily construed only with reference to the decree and to no other order. The appellant also argues that, even if the above argument is not tenable, the appellant could have filed an appeal against the order filing the award. In the present case the order filing the award and the order passing a decree were both contained in the same order dated the 30th July. The decision in Sitaramaiya v. Pichaiya (1911) 21 M.L.J. 1005 is an authority for holding that the two parts can be separated and though there may be no appeal against the decree itself, an appeal can be filed against the earlier portion of the order which directs that the award should be filed. It is true that the present appeal is not filed in the form of an appeal against the order filing the award, but having regard to the fact that from 11th August, 1924 up to this date, the appellant has been pursuing bona fide another proceeding for obtaining the same relief, if it is necessary for us to take this course of action, 'we will be inclined to excuse the delay and allow the appellant to convert the present appeal into an appeal against the order filing the award and proceed with the case.
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