Delhi High Court
Vijaya Bank vs Gambro Nexim (India) Medicals ... on 4 May, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of judgment: 04.05.2011
+ R.S.A.No.30/2008
VIJAYA BANK ...........Appellant
Through: Mr. Y.P. Narula, Sr. Advocate
with Mr. Vaibhav Dang, Advocates.
Versus
GAMBRO NEXIM (INDIA) MEDICALS PVT. LTD & ORS.
..........Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated
07.11.2007 which had endorsed the findings of the trial Judge
dated 21.03.2006 whereby the application filed by the non-
applicant/defendant under Section 144 of the Code of Civil
Procedure (hereinafter referred to as the „Code‟) had been
allowed and restitution had been granted in favour of the plaintiff;
the amount of the two FDRs comprising a total sum of Rs.97,516/-
had been ordered to be refunded back along with interest @ 24%
per annum to the defendant.
2 This is a second appeal. It has been admitted and
on19.08.2009, the following substantial question of law was
formulated:-
"Whether an appeal is maintainable under Section 96 CPC against the order
passed under Section 144 CPC?"
3 Attention has been drawn to the provisions of Section 96 of
the Code. Section 96 deals with an appeal from an original decree.
A „decree‟ has been defined under Section 2 (2) of the Code.
Definition of „decree‟ had been amended by the amendment of
1976 i.e. w.e.f.01.02.1977. The amended definition of „decree‟
reads as under:-
"‟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 suit and
may be either preliminary of final. It shall be deemed to include the rejection of
a plain and the determination of any question within section 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."
4 Adjudication or determination of any question under Section
144 of the Code is included within the definition of „decree‟.
5 The impugned judgment had non-suited the bank on two
grounds; firstly that the appeal under Section 96 of the Code is
not maintainable against an order passed under Section 144 of the
Code. This is a perversity in view of definition of „decree‟ as
contained in Section 2 (2) of the Code quoted hereinabove. It is
liable to be set aside.
6 Learned counsel for the appellant has also drawn attention
of the Court to the findings on merits of the matter which are
contained in para 11. It is pointed out that this was a cursory
approach adopted by the first appellate court; it was the bounden
duty of the first appellate court to have delved into detail into the
merits of controversy which it had not abided. The impugned
judgment suffers from a perversity on this count.
7 This is a fit case for remand. Matter is accordingly
remanded back to be decided on merits. Appeal is allowed. The
findings in the impugned judgment are set aside. The parties are
directed to appear before the District & Sessions Judge on
11.05.2011 at 10:00 AM who shall assign the case to the first
appellate court who shall decide the case on its merits.
Substantial questions of law are answered in favour of the
appellant. Appeal disposed of
INDERMEET KAUR, J.
MAY 04, 2011
a
