Authored By : Trevelyan, Banerjee

Trevelyan and Banerjee, JJ.

1. The learned pleader for the respondents has taken apreliminary objection that no special appeal lies in this case. The order ofthe Court below, which is the subject of the appeal before us, is an ordergiving leave to withdraw the appeal and to withdraw the suit with liberty tobring a fresh suit. The appellant before that Court had a decree made againsthim by the first Court, and the Appeal Court, under the powers which it hasunder the Code similar to those exercised by an original Court, gave this leave.The learned Advocate-General, who appears for the appellant, contends that anappeal does lie. The order is not included amongst the orders which areappealable under Section 588: but he contends that the order made is a decreewithin the meaning of the word "decree" as given in Section 2 of theCode of Civil Procedure. A decree is there defined as "the formalexpression of an adjudication upon any right claimed, or defence set up, in aCivil Court, when such adjudication, so far as regards the Court expressing it,decides the suit or appeal". There can be no question that where an orderof this kind is made by the first Court it does not come within the definitionof a decree in the terms of Section 2: but it is contended that in cases inwhich be decree of the first Court has been got rid of by a decree of theAppellate Court the order which gets rid of that decree must be itself adecree: and in support of this contention he relies on a decision of Mr.Justice Straight and another learned Judge of the Allahabad High Court in thecase of Ganga Ram v. Data Ram I.L.R. 8 All. 82. There is no doubt that decisionis an express authority in favour of the proposition; but there is also anearlier decision of another Division Bench of the same Court, the case ofKalian Singh v. Lekhraj Singh I.L.R. 6 All. 211 which is an authority for thecontrary proposition. Speaking with all respect to the Court which gavejudgment in the case of Ganga Ram v. Data Ram I.L.R. 8 All. 82 it seems to usthat we must prefer the other decision with regard to this matter. We do notthink that this order is in any sense a decree. The setting aside or annullingof a decree by the Appellate Court, as it has been done in this case, does notset aside the decree as the term is used in the its ordinary sense; it does notsubstitute anything for the decree which is set aside, but simply wipes it outand leaves the parties to the determination of their rights in a subsequentsuit, and what is done with regard to the first Courts decree is merelyancillary to the rest of the order, which is not a decree. The rest of theorder does not express any adjudication on the thing claimed, and the settingaside of the first Courts decree, or annulling it, whatever the term used maybe, is also no adjudication upon any right claimed. It says, it is true, thatthe person who obtained that decree will not be at liberty to make use of it,but the right which is declared by that decree will still be open for thedetermination of the Court in the subsequent suit, and is not adjudicated uponin this particular suit. It has also been pointed out to us that the AppellateCourt in setting aside the decree does not do so in any sense of adjudicatingwhether the decree was a right or a wrong decree. That being so, we think thatno appeal lies against an order of this description, and this appeal musttherefore be dismissed with costs.

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Sarut Sunduri Debi vs. Jogodindro Nath (04.03.1891 - CALHC)