( 1 ) THIS is a second appeal by the plaintiffs against the order of the District and Sessions Judge Sorath Junagadh dismissing their First Appeal under Order 41 rule 11 clause (1) Civil Procedure Code.

( 2 ) THE plaintiffs had filed a suit against the original State of Saurashtra under sec. 92 of the Civil Procedure Code for the relief that certain immovable properties which plaintiff No. 1 had by a wakfnama handed over for the benefit of one Islamia Girls School at Junagadh be made use of for another object mentioned in that very wakfnama as the original object had failed and for framing a scheme. Various grounds were set forth in support of this prayer but they are not necessary to be stated herein. The State had contested the plaintiffs suit on various grounds and the trial Court came to the conclusion that none of the grounds urged by the plaintiffs entitled them to the reliefs that they had claimed and dismissed the suit with costs. The plaintiffs had filed the suit in their capacity as trustees of the said wakf or public charitable trust and as stated above had sought for a scheme regarding those properties. Being aggrieved by the decision of the trial Court the plaintiffs appealed to the District Judge at Junagadh and set forth various grounds in the appeal. The learned District Judge it appears decided to exercise jurisdiction under Order XLI rule 11 and passed the following order:-HEARD L. A. Shri Virani; Summarily dismissed under Order 41 rule 11 (1) Civil Procedure Code. L. A. Virani has argued all points raised in memo of appeal. 7th November 1958. The original plaintiffs therefore have filed this second appeal on various grounds. At the hearing the learned advocate Mr. S. M. Shah on behalf of the appellants raised a preliminary point of law and urged that the learned District Judge had erred in not writing a judgment and recording his reasons while dismissing the appeal under his summary powers. The order is therefore not in accordance with law and must therefore be set aside. In support of this preliminary point Mr. Shah relied upon the decision in Hanmant Rukhmaji v. Annaji Hanmant 15 B. L. R. p. 765 a Full Bench decision of the Bombay High Court. It was submitted that this being a decision before the 1st May 1960 it is binding on this Court. In the said decision it was held that in dismissing an appeal under Order 41 rule 11 of the Civil Procedure Code the appellate Court should write a judgment as required by Civil Circular No. 51 of 1890. It may be mentioned that there is Civil Circular No. 410 in the Circulars in force which is in substance equivalent to Circular No. 51 mentioned in this old decision of the Bombay High Court. That circular is as follows :-410 When an appeal is dismissed summarily under Order XLI rule 11 of the Civil Procedure Code the Court shall record a brief judgment stating the reasons for dismissal. A formal decree should also be drawn up in such a case. In the case of Hanmant v. Annaji reference was made to the Full Bench because in the case of Tanaji Dagde v. Shankar Sakharam I. L. R. 36 Bombay 116 a Division Bench of that Court took the view that in dismissing an appeal under Order 41 rule 11 of the Civil Procedure Code (Act 5 of 1908) it was not obligatory upon the Lower Appellate Court to write a judgment while the previous practice as upheld by the Bombay High Court in several reported cases was that even while dismissing the appeal under summary powers the District Judge was bound to write a short judgment giving reasons. Thus a conflict of decisions had arisen and hence the reference. Before the Full Bench on behalf of the appellant it was urged that the lower Appellate Court should have written the judgment as provided in Civil Circular No. 51 even while dismissing the appeal under Order 41 rule 11. Reliance was placed on some of the older decisions of the High Court. While on behalf of the other side reliance was placed on the above mentioned case of Tanaji Dag