An order of rejection of a plaint under Order 7, Rule 11 of the Code of Civil Procedure is a decree and an appeal against such order is a regular Second Appeal.

The plaintiffs are the appellants before us. An order of rejection of the plaint under Order 7, Rule 11 of the Code of Civil Procedure passed by the Learned Trial Judge was challenged in this appeal at the instance of the plaintiffs/appellants.

2. At the stage of hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure, the other Division Bench of this Hon’ble Court dismissed the appeal by holding that no legal issue is raised in this appeal. Hence, the appeal does not deserve any merit for admission.

3. Challenging the said judgment and/or order passed by the other Division Bench of this Hon’ble Court on 24th March, 2014, a Special Leave Petition was filed by the plaintiffs/appellants before the Hon’ble Supreme Court. The said Special Leave Petition being Civil Appeal No. 10472 of 2014 was ultimately disposed of by the Hon’ble Supreme Court on 21st November, 2014 by setting aside the order which was impugned in the said appeal and the appeal has been remitted back to the High Court for framing appropriate question of law and for deciding the said question in accordance with law.

4. Under such circumstances, when the matter was listed again before this Court for hearing, a question cropped up as to what will be the classification of the appeal meaning thereby as to whether such appeal should be registered as a Second Miscellaneous Appeal or a regular Second Appeal? Since the scope of consideration of the Second Miscellaneous Appeal is different from the scope of consideration of the Second Appeal, we feel that the dispute as to whether this appeal should be registered as a regular Second Appeal or a Second Miscellaneous Appeal should be decided first.

5. Accordingly we have decided to resolve this issue first.

6. We have already indicated above the nature of the order, which is impugned in this appeal. As a matter of fact an order of rejection of a plaint under Order 7, Rule 11 of the Code of Civil Procedure is under challenge in this appeal.

7. Let us now consider as to whether such an order has the force of decree within the meaning of “decree” as defined in Section 2(2) of the Civil Procedure code or it will be construed as an order within the meaning of “order” as defined under Section 2(14) of the Civil Procedure Code.

8. Section 2(2) of the Code of Civil Procedure defines decree. It provides that “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 or final. It further provides that it shall be deemed to include the rejection of a plaint 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.

9. An explanation is also added to the said provision which says that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

“Order” has been defined in Section 2(14) of the Civil Procedure code which says that “order” means the formal expression of any decision of a Civil Court which is not a decree.

10. Thus, considering the definition of the “decree” and the “order”, we have no hesitation to hold that rejection of a plaint under Order 7, Rule 11 of the Code of Civil Procedure is a decree within the meaning of “decree” under the provision contained in Section 2(2) of the Code of Civil Procedure. Such an order cannot be constructed as “order” within the meaning of an order as it is defined in the Civil Procedure Code.

11. Earlier an identical question came up for consideration before the other Division Bench of this Hon’ble Court in the case of Surajmal Jain v. Prabir Kumar Sett reported in 1980 (2) CLJ