Lucky Churn Chowdhry vs Budurrunnissa and Others

Wilson, J.—We are disposed to think that this appeal will not lie. The order that is sought to be appealed against is one u/s 97 of the Civil Procedure Code, which says: "If, on the day so fixed for the defendant to appear and answer, it be found that the summons has not been served upon him, in consequence of the failure of the plaintiff to pay the Court-fee leviable for such service, the Court may order that the case be dismissed." The question is whether there is an appeal against such dismissal when no appeal is expressly given either in Section 588 or elsewhere. Section 588 says that an appeal will lie against a decree. A decree is defined in the interpretation clause as "the formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court when such adjudication, so far as regards the Court expressing it, decides the suit or appeal." A decree, therefore, must be an expression of opinion upon the rights of the parties; but this was a dismissal on a ground wholly apart from the merits of the case. We are, therefore, disposed to think that this is not a decree, but an order only. That view is confirmed by the latter part of the definition of a decree which expressly says that a certain class of orders, more or less analogous to those made u/s 97, shall be decrees, but says nothing of orders made u/s 97. Then again a large number of orders analogous to those made u/s 97 are expressly made appealable u/s 588, whereas orders u/s 97 are not mentioned. But however that may be, there are certainly no grounds on the merits of the case to lead us to interfere.

The decision of the Subordinate Judge was right, and the appeal is dismissed with costs.