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Report No. 144

Chapter II

Sections 1 to 20

2.1. Section 2(2) and Dismissal for Default

2.1.1. Section 2(2) of the Code, which defines the expression "decree", provides that "decree" shall not include-

"(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default."

2.1.2. Question for consideration-With reference to clause (b) quoted above, a question has arisen as to the precise scope of the expression "dismissal for default".

2.1.3. There exist, what may be called, the narrower view and the wide, view on the subject. According to the narrower view, the expression "dismissal for default" covers only a dismissal for default of appearance. According to the wider view, however, any kind of default, e.g., default in furnishing better particulars, falls within clause (b) of section 2(2), so that dismissal for such a default is also excluded from the definition of "decree".

2.1.4. The narrower view of the expression "dismissal for default", and the consequent wider view as to the scope of "decree", has been taken by the following High Courts:-

(a) Allahabad,1

(b) Calcutta,2

(c) Madhya Pradesh,3-4 and

(d) Nagpur.5-6

1. Syed Mohammadi v. Chandra, AIR 1937 All 284 (285). (Naiamtulah, J.) (Dismissal for want of prosecution of suit is a decree. It is not dismissal for default).

2. Abdul Majid v. Amina, AIR 1942 Cal 539 (541) (Biswas, J.).

3. Budhulal v. Chhotelal, AIR 1977 MP 1, paras. 22, 23 (FB) (failure to pay costs-dismissal is appealable.).

4. Madhya Pradesh State Cooperative v. J.L. Chouksey, AIR 1980 MP 204 (206), para. 8 (failure to give better particular-order of dismissal is "decree") (U.N. Bachawat, J.).

5. Nazir Abbas Sujjat Ali v. Raza Azamshah, AIR 1941 Nag 223 (224) (Vivian Bose, J.) (failure to give better particulars-order held to be "decree", and hence appealable, as a "decree". The order determines, conclusively, certain right).

6. Radhabai v. Purdibai, AIR 1943 Nag 149 (151): ILR 1943 Nag 613 (Digby, J.). (When the suit is dismissed because adjournment costs are not paid, the order is a "decree" and appealable. Suit cannot be restored under the inherent power of the court).

2.1.5. A wider view of the expression "dismissal for default", and consequent narrower view of the word "decree", has been taken by the following Courts:-

(a) Andhra Pradesh,1

(b) Assam,2

(c) Madras,3

(d) Oudh,4

(e) Patna,5 and

(f) Allahabad (later case)6.

1. Chouduru (in re:), AIR 1955 AP 74 (77, 78), para. 13 (FB) (judgment by Subba Rao, C.J.) (Want of prosecution-Dismissal).

2. Gauhafi Bank v. Bahram, AIR 1950 Assam 169 (172, 173, 174), paras. 22, 24 (Ram Labhaya, J.) (dismissal for non-payment of costs or other defects is covered by dismissal for "default") (Thadani, C.J. refused to express opinion on this point).

3. N. Kayambu (in re:), AIR 1941 Mad 836 (837) (FB) (non-payment of court fee).

4. Jagdish Kumar v. Hari Kishan Das, AIR 1942 Oudh 362 (364, 365) (Thomas, C.J. and Agrawal, J.) (see infra).

5. State of Bihar v. Mansoor Alam Khan, AIR 1983 Pat 61, para 8 (B.P. Jha, J.). (Order dismissing appeal for default in paying court fee is not a "decree" and is not appealable as a decree. It is covered by "dismissal for default").

6. Tafazzul v. Shah Mohammad, AIR 1949 All 261 (Seth, J.) (Want of prosecution).

2.1.6. Thus, in the 1942 case from Oudh1, it was held that dismissal of an appeal for non-prosecution is not a "decree", even if a decree is actually prepared in the particular case.

1. Jagdish Kumar v. Hari Kishan Das, AIR 1942 Oudh 362 (Thomas, C.J. & Agarwal, J.).

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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