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Judgment
Sabhahit, J.-This Appeal is against the order passed by the District Judge, Dharwad dated 3.12.1980 in Miscellaneous Case No. 65 of 1972 on his file.
At the outset, a preliminary objection was raised by the learned Counsel on the other side that the appeal itself was not maintainable. The First point, therefore, that arises for our consideration is whether the present appeal is maintainable.
An application was instituted under S. 72 of the Bombay Public Trust Act before the learned District Judge, Dharwad in Misc. Case No. 65/72. The case had a chequered career. It dragged on till 3.12.1980 on which day the learned District Judge has passed the following order:
"3.12.80: Applt. by Sri. S.V. Pralayakalmath, Adv. absent, petr. by Sri. R.P. Hosmani, Adv. Absent R2, 4 & 5 absent. R6 by Sri A.C. Chawadi, Adv. present. For arguments.
S.V. Pralayakalmath has sent a Memo of retirement. Applicant present in person and has no objection for retirement. But he prays for time to engage another counsel. I am not inclined to adjourn further in view of the fact that case has been Adjourned from time to time to the knowledge of the applicant who wants to protract the litigation by abusing the process of law which deserves to be curbed.
ORDER
Misc. Case No. 65/72 is dismissed with costs for non-prosecution.
(Sd) G.S. Kittur 3.12.80."
Thus, it is obvious that the impugned order is not a decision in the sence that it represents an adjudication of the dispute on merits. It is a mere order of dismissal for non-prosecution. The moot point is whether an appeal lies against such an order of dismissal.
Sec. 72(4) of the Bombay Public Trust Act, 1950 provides for an appeal to this Court. It reads:
"An appeal shall lie to the High Court Against the decision of the court under sub-sec. (2) as if such decision was a decree from which an appeal ordinarily lies.
Explanation: In this section, the Expression"decision"shall include a scheme framed or modified under Sec. 50A."
Sub-sec. (2) of S. 72 reads:
"The court after taking evidence, if any may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances."
Sub-Sec. (4) speaks of an appeal against the decision of the Court under sub-sec. (2) and sub-sec. (2) as quoted above clearly states that the court after taking evidence, if any, may confirm, revoke or modify the decision Therefore, the word ''decision'' used in sub-section (4) clearly indicates a decision passed on merits adjudicating the dispute before the Court on taking evidence, if any, and hearing the arguments. In other words, it is a decision passed finally on merits and put an order passed dismissing the application for non-prosecution or for default.
The meaning of the word ''decision'' apart from what is specifically stated in S. 72(4), in a standard English dictionary, the Concise Oxford Dictionary, is given thus:
"Decisions a settlement (questions, etc.) conclusion, formal judgment."
In fact, Hon''ble Justice Narayana Pai, as he then was, had an occasion to consider the meaning of the word ''decision'' in Sayyad Sultan v. Abdul Aziz Saheb 1964(1) Mysore Law Journal, page 565. In the last but one para of the Judgment. His Lordship has observed:
"There is no decision in the sense of an adjudication or a statement of a final opinion by him."
Thus, a decision referred to in S. 72(4) clearly means an adjudication or a statement of a final opinion, especially so when sub-sec. itself makes it clear that it should be a decision of the Court under sub-sec. (2) which speaks of enquiry and recording of evidence, hearing of argument and pronouncing judgment. In the circumstances, therefore, we are constrained to hold that no appeal lies against an order dismissing an application for non-prosecution passed in an application Under S. 72 of the Bombay Public Trust Act by the District Judge as in the present case Hence, the appeal is dismissed for non-maintainability. No costs.