The Second Appeal was dismissed as withdrawn by the appellant, who conceded the legal position regarding the maintainability of second appeals against equally appealable orders under Order 22 Rule 9 CPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 59 OF 2000
MRS. MARIANINHA FERNANDES VAZ, R/O. E239, MACHADO VADDO, CARANZALEM, ILHAS, GOA.
..... APPELLANT
VERSUS
SHRI E. DIAS, ADVOCATE FOR THE APPELLANT.
SHRI PARAG S. RAO, ADVOCATE FOR THE RESPONDENTS
CORAM : N. A. BRITTO, J . DATE : 24/11/2005
ORAL JUDGMENT
This is Plaintiff's Second Appeal, arising from Special Civil Suit No.129 of 1989/A and was admitted by order of this Court dated 8/9/2000 on several questions, as substantial questions of law, involved in this Second Appeal.
the Respondents/Defendants, raised a point of non maintainability of this
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Second Appeal submitting that the Second Appeal is maintainable only against a decree a 'Decree' as defined Under Section 2(2) read with Section 100 of Civil Procedure Code. In support of his submission Shri Rao has relied upon the case of Madan Naik Versus Mst. Hansubala Devi & others (AIR 1983 SC 676).
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consequently the trial court held that upon the death of plaintiff No.2, the suit itself was abated.
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(2) C.P.C. refusing to set aside abatement is specifically appealable under Order 43, Rule 1(k). Such an adjudication if it can be so styled would not be a decree as defined in Section 2(2) of C.P.C. Section 100 provides for second appeal to the High Court from every decree passed in appeal by any Court subordinate to the High Court on the grounds therein set out. What is worthy of notice is that second appeal lies against a decree passed in appeal. An order under Order 22, Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent.
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N.A. BRITTO, J.
NH
MRS. MARIANINHA FERNANDES VAZ
MR. PETER FERNANDES
MRS. IRENE CAIADO FERNANDES
N. A. BRITTO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
