AJOY KUMAR MUKHOPADHAYA Vs. PUSPABALA CHAUDHURY AND ANOTHER
HIGH COURT OF GAUHATI
Ajoy Kumar Mukhopadhaya
Puspabala Chaudhury And Another
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Thadani, C.J. -
(1.) I have had the advantage of reading the judgment of my learned brother. I regret to say that I am unable to agree in the conclusion he has arrived at.
(2.) THE question for consideration is -whether an adjudication made in pursuance of O. 20, R. 16, Civil P.C., at a time when the defendant was dead, a preliminary decree for accounts having been passed against him when he was alive, is a nullity. I have deliberately used the word 'adjudication,' and not the words 'a final decree,' for reasons which will appear from the judgment. Before proceeding to a consideration of the reports of decided cases which were cited at the bar, I will endeavour to arrive at an accurate analysis of sub -s. (a) of S. a, Civil P.C., including the explanation to it. Sub -section (S) of S. 2 and the explanation thereto are in these terms :
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the Bait and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 3. 47 or S. 144, but 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.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It la final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
(3.) IT is manifest that a decree, to be a decree within the meaning of sub S. (2) of S. 2, Civil P.C., must conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the suit. A decree, be it preliminary or final, must conform to the requirement that the adjudication conclusively determines the rights of the parties. A decree which conclusively determines the rights of the parties but requires further proceedings to be taken before the suit can be completely disposed of, is designated as preliminary, and final, when the adjudication upon such further proceedings completely disposes of the suit. The adjudication itself for the purpose of completely disposing of the suit, is not a decree, for, the Court has already conclusively determined the rights of the parties upon a decree in which further proceedings have to be taken for the limited purpose of completely disposing of the suit.;
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