JUDGMENT
Rowland, J.
1. In Miscellaneous Appeal No. 240 of 1936 Jamuna Prasad Rai, judgment-debtor, presents a second appeal from an appellate decision of the District Judge of Shahabad dismissing under Order XLI, Rule 11, Sub-rule (1), Civil Procedure Code, his appeal from the decision of the Munsif, Third Court, Arrah, disallowing his objection to the execution of the decree on the ground that full payment, had been made to the decree holder out of Court. In Civil Revision No. 489 of 1936, the same Jamuna Prasad Rai asks this Court to revise the above appellate decision in case it is held that no appeal lies. It seems unfortunate that litigants should be in doubt as to the nature of their remedy and should feel themselves compelled to institute two proceedings instead of one.
2. The order of the first Court being a decision determining a question arising between the parties to the suit and relating to the execution, discharge or satisfaction of the decree, was a “decree” within the meaning of Section 2(2), Civil Procedure Code read with Section 47. The determination on merits of an appeal from a decree is also generally regarded as a decree for the purposes of second appeal. The question is whether cases where after full bearing a judgment in conformity with Order XLI Rule 31, Civil Procedure Code, has been written, and cases where an appeal has been dismissed summarily under Order XLI, Rule 11, are on the same footing. To the former class of cases a full and formal decree in accordance with Order XLI, Rule 35, is drawn up. But when an appeal is dismissed under Order XLI, Rule 11 the practice is merely to notify the dismissal to lower Court under Order XLI, Rule 11, (3) and the entry in the order-sheet of the appeal remains as the only expression of the decision. This difference of practice may at first sight create the impression that dismissal under Order XLI, Rule 11, is not a decree because the words “formal expression” appear in the definition of a ‘decree’: Section 2 (2) of the Code. But the same words “formal expression” appear in the definition of an ‘order’: Section 2(14). Therefore, the presence or absence of a formal expression cannot be the true criterion of the difference between a decree and an order; and if it be urged that without formal expression there can be no decree, the answer is that the words “appeal dismissed” over the signature of a Judge are a formal expression of a decision: if they were not considered to be that, they would not even amount to an order as defined in Section 2(14). Reading the two definitions together, the essence of the distinction seems to lie in the nature of the decision–whether it is an adjudication of a particular kind or not–rather than in the manner of its expression.
3. The view which has generally prevailed hitherto is that the dismissal of an appeal under Order XLI, Rule 11, Sub-rule (1) is appealable as a decree whereas dismissal under Rule 11, Sub-rule (2) is not. The difference between the wording of Sub-rule (1) and Sub-rule (2) of Order XLI, Rule 11, is significant. Sub-rule (2) provides for “an order that the appeal be dismissed”, if the appellant does not appear when the appeal is called on for hearing. The intention is clear to make the order under this sub-rule not appealable; and for this there are two good reasons: first, the ground of dismissal under Order XLI, Rule 11 (2) being non-appearance, the Court has not considered and adjudicated on the question whether there is any merit in the appeal; secondly, the Code has provided another remedy under Order XLI, Rule 19, by application for the re-admission of the appeal, and if that application is refused, an appeal lies under Order XLIII, Rule 1 (t). But an appellant has no such remedy when his appeal is dismissed under Order XLI, Rule 11, Sub-rule (1). Such a dismissal has, so far as the Court pronouncing it is concerned, the finality which is an essential ingredient in the definition of “decree” in Section 2 (2); and in substance it expresses an adjudication within that definition, to the effect that the appeal is without merit. How it came about that such different language was used in Sub-rule (1) and in Sub-rule (2) of Order XLI, Rule 11, is apparent on reference to the old Code, Section 551. In that section the authority to dismiss for default and to dismiss summarily after hearing the appellant’s Pleader are conferred in the same terms; and this had led to a conflict of judicial opinion. The one opinion was that both cases were on the same footing, and in both cases the dismissal was a decree; the other was that dismissal for default of appearance was not a decree. It has been generally considered since the amendment that the altered language was intended to contrast these two forms of dismissal. If so, “dismissal” under Sub-rule (1) would amount to a decree but ‘an order that the appeal be dismissed’ under Sub-rule (2) would not.
4. A curious consequence in some cases follows if it were held otherwise. The first Court, let us suppose, has given its findings of fact and has also decided a question or questions of law such as whether a shorter or a longer period of limitation governs the suit. The Code provides for re consideration of the findings of fact in a first appeal and of the correctness of the law both in first and in second appeal. If, however, no second appeal lies from a dismissal under Order XLI, Rule 11 (1), the consequence follows that a District Judge by not writing a judgment can give an erroneous decision on a point of law, a finality which it would not have if he had given reasons in support of it. It is said, however, that Makh v. Sahu v. Kamta Prasad Sahu 13 Pat. 540 : A.I.R. 1934 Pat. 341 : 150 Ind. Cas. 817 : 15 P.L.T. 293 : 7 R.P. 21 is authority for the contrary view, namely, that there is no distinction between the two casts and that there is no appealable decree in either case. It is a well known principle that every case is authority for what it decides and no more; and the point for decision in Makhu Safin’s case 13 Pat. 540 : A.I.R. 1934 Pat. 341 : 150 Ind. Cas. 817 : 15 P.L.T. 293 : 7 R.P. 21 was whether the law required the lower Appellate Court to write a judgment even while summarily dismissing the appeal. In Makhu Sahu’s case 13 Pat. 540 : A.I.R. 1934 Pat. 341 : 150 Ind. Cas. 817 : 15 P.L.T. 293 : 7 R.P. 21 it was decided that the law does not demand a judgment under Order XLI, Rule 31. when an appeal is summarily dismissed. For this much Makhu Sahu’s case 13 Pat. 540 : A.I.R. 1934 Pat. 341 : 150 Ind. Cas. 817 : 15 P.L.T. 293 : 7 R.P. 21 is direct authority; and I have been told by both the learned Chief Justice and the learned Judge who was his colleague that it was not intended to be an authority for more than that. The observations in the judgment fat p. 542 Pages of 13 Pat.–[Ed.] of the report) quote the words “the Court may make an order that the appeal be dismissed” from Sub-rule (2), and proceed ‘there is thus ix appeal from an order made under the rule.’ This was said with reference to Sub-rule (2). The remark (at p. 546 Pages of 13 Pat.–[Ed.] of the report), ‘there is no appeal from such order’, was made inadvertently in a context which made it appear applicable to dismissals under both Sub-rules (1) and (2). Makhu Sahil’s case, therefore, does not establish that a second appeal is wholly incompetent but that summary dismissal without writing a judgment is not by itself a good” ground for second appeal.
5. I have not, however, in the present case to decide whether from the appellate decision on a case under Section 47 a second appeal lies, because the suit in execution of whose decree the case arose was a suit of the nature cognizable by Courts of Small Causes and the value of the subject-matter of the original suit did not exceed five hundred rupees; and by Section 102, Civil Procedure Code, there is no second appeal in such a case. Second (Misc?) Appeal No. 240 is on this ground not maintainable. I have to consider whether in the case before me the dismissal of the appeal should be set aside in revision. The judgment debtor preferred an objection on the ground that he had made a payment of Rs. 478 to the decree-holder out of Court which he asked the Court to record under Order XXL, Rule 2. The Munsif before whom the execution was pending considered the evidence adduced by the judgment-debtor and found that the witnesses were interested, their statements were discrepant, and the receipt itself was highly suspicious. He decided that the plea of payment was false and rejected the application. The District Judge’s decision was limited to these words: “Heard. The appeal is summarily dismissed.”
6. It is clear from the decision in Makhu Sahu’s case 13 Pat. 540 : A.I.R. 1934 Pat. 341 : 150 Ind. Cas. 817 : 15 P.L.T. 293 : 7 R.P. 21 that the law did not require the learned District Judge to write a judgment. But I have been referred to Mahabir Das v. Sadho Chaudhuri 17 P.L.T. 607 : A.I.R. 1936 Pat. 505 : 163 Ind. Cas. 142 : 2 B.R. 566 : 8 R.P. 620 a case in which the summary dismissal under Order XLI, Rule 11, of an appeal from the decision in a title suit was set aside and the appeal remanded to be re-heard. But that case laid down no general rule or principle. I do not read it as extending the grounds for second appeal beyond those stated in Section 100 or the grounds for interference in civil revision beyond those which are to be found in Section 115, Civil Procedure Code.
7. In the original suit the trial Court had framed a number of issues, and the learned Judges may have felt a difficulty in determining on what findings the lower Court’s decree was affirmed by the District Judge and whether those findings were sufficient for the disposal of the suit. District Judges can avoid putting the Court of second appeal in such a difficulty by indicating in a few words what findings of the first Court are accepted and made the basis of the appellate decision. I do not in the present case feel any such difficulty. There was only one point for determination, namely, the question of fact whether the payment alleged by the judgment-debtor had been made or not. I have no doubt that in dismissing the appeal the District Judge intended to accept the finding of the Munsif that the payment was not true, and that finding, if accepted, was sufficient for the disposal of the matter.
8. It might have been better if the District Judge had sayl explicitly that the Munsifs decision appeared to him to be correct for the reasons given therein. But Section 115 of the Code will not justify my interference in revision simply on the ground that had I been in the District Judge’s place I should not have dismissed the appeal without expressing in definite words my acceptance of the finding of the first Court. The miscellaneous appeal and civil revision are both dismissed with costs. There will not be a separate hearing fee n the civil revision.