[1934] EACA 14

## APPELLATE CIVIL.

## Before WEBB, J.

MUNSHIRAM & Co. (Appellants) (Original Plaintiffs)

$\boldsymbol{v}$ .

## STAR SODA WATER FACTORY (Respondents) (Original Defendants).

Civil Appeal No. 25 of 1934.

Practice—Appeal—Appeal from Ruling of Resident Magistrate— Failure to lodge certified copy of Order appealed from-Order 39, r.1.

Held (2-11-34).—That Order 39, r.1 is mandatory in requiring every<br>memorandum of appeal to be accompanied by a copy of the<br>Decree or Order appealed from, and that where an appellant has failed to comply with this provision the appeal is not properly before the Court and must be dismissed.

On the 22nd December, 1933, the appellants filed a plaint against the respondents; service was accepted and separate defences were filed by "Deva Singh and Aga Raza trading as the Star Soda Water Factory". On the 13th January, 1934, a reply to one of these defences was filed. Before the case came on for hearing the advocates for the appellants applied to the Court to have a copy of the plaint served on one Lal Singh, who they alleged was a partner in the defendant firm at the time the liability to the appellants was incurred. A copy of the plaint was accordingly served on Lal Singh who entered an appearance and filed a defence on the 7th July, 1934. Subsequently the advocates for the appellants, without applying for leave, filed an amended plaint and served copies on the three defendants. Thereupon Lal Singh applied to the Resident Magistrate to strike out the amended plaint, or, alternatively, that he be dismissed from the suit.

The Resident Magistrate made an Order striking out the amended plaint with costs of the application to Lal Singh as against the appellants. From this Order the present appeal was There was filed with the Memorandum of Appeal a brought. certified copy of the Judgment or Ruling of the Resident Magistrate but no certified copy of the Order appealed from, and in fact the Order had never been drawn up.

Modera for the respondent Lal Singh.

The appeal is not properly before the Court; Order 39 r.1compare Indian Civil Procedure Rules, Order 41, r.1; Mulla (9th Ed.) 983; Qasim Ali Khan v. Bhagwanta Kunwar (40 All. 12); Jeevanjee v. Jeevanjee (12 K. L. R. 41).

## Hogan for the appellants.

It is unusual in the case of a Ruling such as this by $a$ Magistrate's Court to have a formal Order drawn up. In fact the last two sentences of the Ruling constitute the Order. $In$ Jeevanjee v. Jeevanjee there was an appeal from a judgment which is required to be embodied in a decree: Civil Procedure Ordinance, section 25.

Modera in reply.

JUDGMENT.-In my opinion the respondent's objection succeeds. Order $39 \text{ r.1}$ (as amended) is mandatory in requiring every memorandum of appeal to be accompanied by a copy of the decree or order appealed from, and the definition section of the Civil Procedure Code clearly distinguishes between a "Judgment" and an "Order". In the present case the Resident Magistrate gave judgment on 7-8-1934 setting out the grounds of. his order that the amended plaint in the case be struck out. But no formal order has ever been drawn up. Mr. Hogan says that no formal order is usual or necessary, but a formal order would certainly be necessary in one set of circumstances, namely if Lal Singh, who was awarded costs against the plaintiffs, desired to issue execution for those costs. And, conversely, if the decision of the 7th August had been in favour of the plaintiffs the judgment or ruling is not what they would have sought to execute in recovering their costs of the application by Lal Singh, but they would have had to take out an order, in which would be set out the costs awarded and recoverable. This point is relied upon in the judgment of TUDBALL J. in the case reported in 40 All. 12. which is an authority in the respondent's favour.

I am of opinion that this appeal is not properly before the Court, and it must therefore be dismissed with costs to Lal Singh.

$51$