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Judgment
Indermeet Kaur, J.—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 u/s 144 of the CPC (hereinafter referred to as the ''Code'') had been allowed and restitution had been granted in favor of the Plaintiff; the amount of the two FD Rs comprising a total sum of Rs. 97,516/- had been ordered to be refunded back along with interest @ 24% per annum to the Defendant.
This is a second appeal. It has been admitted and on 19.08.2009, the following substantial question of law was formulated:
Whether an appeal is maintainable u/s 96 CPC against the order passed u/s 144 CPC?
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 u/s 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.
Adjudication or determination of any question u/s 144 of the Code is included within the definition of ''decree''.
The impugned judgment had non-suited the bank on two grounds; firstly that the appeal u/s 96 of the Code is not maintainable against an order passed u/s 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.
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.
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 favor of the Appellant. Appeal disposed of.