Jagarnath Singh vs Budhan and Others

Prinsep and Ghose, JJ.—This is a second appeal against an order passed by the Lower Appellate Court u/s 556 of the CPC in consequence of the default of the appellant.

Objection is taken by the respondents that no appeal lies.

As an authority for the appeal the pleader for the appellant cites the case of Ramchandra Pandurang Naik v. Madhav Purushottam Naik ILR 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 u/s 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 u/s 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.

With the exception of the case cited there is ample authority for holding that an. appeal against an order u/s 556 is not admissible.

The appeal is, therefore, dismissed with costs.