Gilkinson and Another vs Subrahmania Aiyar

Moore, J.—The Subordinate Judge of Calicut dismissed a suit u/s 102, Code of Civil Procedure. The plaintiff applied u/s 103 to have the

order of dismissal set aside, but his application was rejected, and an appeal preferred by him against this rejection u/s 588 (Clause 8) was

dismissed by the District Judge. He then preferred a regular appeal from the order of dismissal u/s 102 as if it were a decree to the District Judge

who heard it and disposed of it on the merits. Against his judgment a second appeal has been preferred here. It is now urged on behalf of the

respondent that there was no appeal to the District Judge from the order passed u/s 102 and that, consequently, there is no second appeal here.

This contention is, in my opinion, a valid one. It must be held that an order passed u/s 102 is not a decree (vide Mansab Ali v. Nihal Chand

I.L.R., 15 A., 359. Reference should also be made to the decision of their Lordships of the Privy Council in Ghand Kour v. Partab Singh ILR 16

C., 98 where it was held that ""the dismissal of a suit in terms of Section 102 was plainly not intended to operate in favour of the defendant as res

judicata"" and to an unreported decision of this Court (Appeal against Order 140 of 1892) where the ruling in 15 Allahabad is approved and

followed.

It is further urged that although it is the case that the 23rd September, 1896 (the day on which the suit was dismissed for default) had been fixed

for settlement of issues, yet it should be held that this arrangement was superseded by a further order of the Court directing that the application on

the part of the defendant praying that the plaintiff should be directed to amend the plaint should, be heard on the same day. There does not appear

to be anything in this argument. On the 4th September, the defendant put in the petition just mentioned and the order passed on it by the

Subordinate Judge was that the question raised would be considered at the first hearing and that "" notice should be sent to the plaintiffs for the

23rd."" It is impossible to hold that by this order the Subordinate Judge ""superseded"" the order fixing the 23rd September for the first hearing or

that the plaintiffs could'' reasonably have supposed that he had done so.

On the ground that the order passed u/s 102 of the CPC was not a decree, it must be held that there was no regular appeal to the District Judge

and that, consequently, there is no second appeal here.