Smt. Meera Rai vs Smt. Nirmala Khare
2021 Latest Caselaw 8300 MP

                                                                             1                                        SA-274-2020
                                             The High Court Of Madhya Pradesh
                                                       SA No. 274 of 2020
                                                  (SMT. MEERA RAI AND OTHERS Vs SMT. NIRMALA KHARE AND OTHERS)


                                    Jabalpur, Dated : 06-12-2021
                                            Shri Rakesh Kesharwani, learned counsel for the appellant.

                                            Ms. Sonali Biswas, learned Panel Lawyer for the respondent/ State.

Shri Manas Mani Verma, learned counsel for the caveator/ respondent No.1.

This second appeal has been filed on a short substantial question of

law namely whether the order of remand passed by the First Appellate Court will be treated as an order or a decree?

Appeal is admitted on the aforesaid substantial question of law. After hearing learned counsel for the parties and going through the record, it is evident that vide proceedings dated 30.09.2019 passed in Civil

Appeal No.70/2017 learned 7th Additional District Judge, Sagar has quashed the judgment and decree dated 17.08.2017 passed by the trial Court and has remanded the matter with certain observations as are mentioned in para-30 of the impugned proceedings.

It is evident that a decree has been prepared and signed by the concerned Judicial Officer whereas fact of the matter is that there is no conclusive adjudication of the rights of the parties when a matter is remanded and, therefore, as per the definition clause contained in Section 2(2) of the CPC, decree could not have been passed but only an order could have been passed as defined in Section 2(14) of the CPC which are reproduced hereinunder for ready reference:

Section 2(2) and Section 2(14) of the Code of Civil Procedure, 1908 read 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 or final. It Signature Not Verified SAN

shall be deemed to include the rejection of a plaint and the determination of any question Digitally signed by APARNA TIWARI Date: 2021.12.07 18:58:22 IST 2 SA-274-2020 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.

Explanation- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

(14) "order" means the formal expression of any decision of a Civil Court which is not a decree;

Thus, there is no iota of doubt that substantial question of law on which appeal is admitted is to be answered in the following terms that since matter has been remanded, there is no conclusive determination of the rights of the parties with regard to all or any of the matters in controversy in the suit, therefore, the impugned determination is an order in terms of the provisions contained in Section 2(14) CPC and not a decree and, therefore, decree

prepared by the learned 7th Additional District Judge, Sagar is quashed. It is further directed that proceedings dated 30.09.2019 will not be treated as a judgment and decree but an order. It is further directed that matter will be decided by the trial Court in terms of the order of remand passed by the

learned 7th Additional District Judge, Sagar.

In above terms, this Second Appeal is disposed of.

(VIVEK AGARWAL) JUDGE

AT

Signature Not Verified SAN

Digitally signed by APARNA TIWARI Date: 2021.12.07 18:58:22 IST