When an appeal is summarily dismissed by the High Court under O.41, R.11, the decree of the trial Court remains the substantive decree and an application for amendment of the decree must be made to the trial Court and not to the appellate Court.

ORDER :- A suit was filed by the plaintiff to recover possession of a house which was described as bearing No.1372. The trial Court passed a decree in favour of the plaintiff. The defendant appealed, and the decree was confirmed by the District Judge. There was a second appeal to this Court, and it was summarily dismissed. On January 31, 1951, the plaintiff made an application under S.152, Civil P.C. to the District Court for amendment of the decree, alleging that the house had been wrongly described as bearing No.1372 when in fact it bore No.1572. The District Court granted the application. It is from that order that this revisional application is preferred.

2. It is contended before me that, inasmuch as an appeal was preferred to this Court, the application for amendment should have been granted, if at all, not by the District Court, but by this Court, and, therefore, the order of the District Judge was without jurisdiction. Now, the ordinary principle is that the decree of the trial Court is merged in the decree of the appellate Court if an appeal is preferred from that decree, and the decree that has got to be executed is the decree of the appellate Court; and if any amendment is sought of the decree, it must be of the decree of the appellate Court, and, therefore, an application for amendment should be made to the appellate Court. But the question is whether the position is different when an appeal is summarily dismissed by this Court under O.41, R.11. Now, turning to that rule, it provides that the appellate Court may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader; and sub-cl.(3) provides that the dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. It will be immediately noticed that there is considerable difference between the provisions of O.41, R.11, and the provisions of O.41, R.32.

Under O.41, R.32, when an appeal is heard after notice, the judgment of the appellate Court must be a judgment for confirming, varying or reversing the decree from which the appeal is preferred, and the decree that is drawn up is a decree confirming or varying or reversing the decree of the lower Court. But under O.41, R.11, no such decree is to be drawn up. The only provision in O.41, R.11, is that the lower Court has to be notified of the fact that an appeal from its decree has been dismissed. Therefore, the view has been taken by this Court - and, in my opinion, rightly - that when an appeal is summarily dismissed under the provisions of O.41, R.11, the original decree from which the appeal was preferred remains untouched and it is the original decree which is the substantive decree. Therefore, if an application has got to be made for amending the decree, it must be made, not to this Court which has exercised its powers under O.41, R.11, but to the Court which passed the substantive decree.

3. Turning to the authorities, this view was taken as far back as in 1896, in - Bapu v. Vajir, 21 Bom 548. Sir Charles Farran, Chief Justice, who delivered the judgment of the Court, pointed out that there is a change of language made in 1888 by the Legislature in S.551 of the old Code of Civil Procedure of 1882, which corresponded to O.41, R.11 of the new Code of 1908, and from that the learned C.J. infers that it was intended that there should be a difference between the results of a dismissal under S.551 and of a confirmation under S.577, which corresponds to O.41, R.32. The learned Chief Justice further points out as follows (p.551) :

"...... Dismissing an appeal is, we think, refusing to entertain it as in the case of an appeal dismissed as being time-barred. Where an appeal is dismissed under S.551, there is no decree of the High Court which can be executed, and the reasoning in the cases to which we have been referred does not apply."

Mr. Madbhavi has attempted to distin