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Report No. 144

2.1.7. Recommendation.-

It appears to us that it is better if the position is clarified by providing that dismissal of a suit for any kind of default should take the order out of the definition of "decree". On principle, when there is no adjudication on the merits, it should not be regarded as a "decree" and should not be appealable as a decree. Practically, all the defaults that have figured in the case law (summarised above) were defaults entailing dismissal for a technical fault or procedural non-compliance. There was no decision on the merits. If so, it should not be regarded as a determination enjoying the benefits available to a decree (one appeal as of right, on facts and law, plus second appeal on law). We recommend that in section 2(2), an Explanation should be inserted, as under:

"Explanation.-'Default' includes default of appearance as well as any other kind of default."

2.2. Section 2(11) and Joint Hindu Family

2.2.1. Section 2(11) of the Code reads as under:-

"2(11) "legal representative" mean, a person who in law represents the estate of a decreased person, includes any person who interimeddies with the estate of the deceased and whereas party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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