' CH. MUHAMMAD IBRAHIM ZIA, J.--- The captioned appeal with the leave of the Court is addressed against the judgment and decree of the High Court dated 28-3-2009, whereby the appeal filed by the appellant has been dismissed while upholding the judgments and decrees recorded by both the Courts below.
2. The precise facts giving rise to this appeal are that the plaintiff-appellant filed a suit for perpetual injunction against the defendants-respondents in the Court of Civil Judge Dadyal on 22- 11-1999, in respect of the land comprising survey numbers, 2432, 2437, 2458, 2454, 2472 and 2477, measuring 23 kanals, 3 marlas, ,situated at Surakhi, Tehsil Dadyal. During pendency of the aforesaid suit, Mst. Zarida Bi respondent, filed a cross suit for possession against the appellant and pro forma-respondents in respect of the land comprising Khasra Nos.2432, 2437 and 2458, measuring 4 Kanals, 11 marlas, situated at village Surakhi, Tehsil Dadyal. Both the suits were consolidated by the trial Court and after due course of law, the suit filed by Manzoor Hussain, appellant was dismissed to the extent of land comprise Khasra Nos.2432, 2437 and 2458, while the decree of possession in cross suit was granted in favour of Zarida Bi and others, respondents herein, vide judgment dated 26-11-2004. The appellant and pro forma-respondents, feeling aggrieved from the judgment and decree of the trial Court, filed an appeal before the Additional District Judge Dadyal, which was dismissed on 19-12-2005. The appellant and pro forma-respondent No,6, challenged the propriety of the judgment of Additional District Judge. Dadyal through an appeal in the High Court on 14-3-2006. The learned High Court, dismissed the appeal on 28-3-2009 through the impugned judgment, hence, this appeal.
3. Ch. Muhammad Mehfooz Advocate, the learned counsel for the appellant, after brief statement of facts, submitted that the learned High Court has dismissed the appeal on technical grounds. He has only focused his argument on the main reason assigned by the High Court for rejection of appeal leaving aside the other merits of the case. He submitted that the learned single Judge of the High Court has dismissed the appeal on the sole ground that as in appeal the decrees of subordinate Courts have not been challenged, therefore, the appeal is not competent. According to his version, observation in the impugned judgment is incorrect. The appellant has challenged the propriety of the judgment and also appended the certified copy of the decree with the memo of appeal. According to statutory provisions of Order XLI, Rule 1., C.P.C., the requirement to append with the appeal is the certified copy of the decree. The decree takes pulse from the judgment and if the judgment is challenged to be set aside, it cannot be refused merely on the ground that the prayer for setting aside the decree has been made thus mere absence of the word "decree" to set aside a decree does not make the appeal as incompetent.
4. Conversely, Ch. Muhammad Sabir Advocate, the learned counsel for the respondents, while controverting the arguments of learned counsel for the appellant, submitted that the impugned judgment is quite consistent with the principle of law which does not suffer from any illegality, Under section 96 of C.P.C. Appeal is only competent against a decree. No doubt the appellant has appended the copies of decree along with memo of appeal but he has not prayed for setting aside the decree in his memo of appeal; hence, the appeal is not competent.
5. We have considered the arguments of learned counsel for the parties and also perused the record. According to the statutory provisions A of section 96 of C.P.C., an appeal lies against a decree. The legal term "decree" has been defined under subsection (2) section 2 of C.P.C. Which reads as following:--- ".... "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 shall be deemed to include the rejection of a plaint, the determination of any question within section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI 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..."
The phraseology of this statutory provision connotes that in general, a decree amounts to the formal expression of adjudication, conclusively determining the rights of the parties with regard to all or any of the matters in controversy. The statutory provision of sub-rule (2) of rule 1 of the Order XLI, C.P.C. Speaks that:--- "(2) The memorandum shall set forth, concisely under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively."
The examination of these two statutory provisions in juxtaposition reveals that the word "decree" is not merely confined to a decree-sheet drawn on prescribed form rather it has been used in broader sense. If the term "decree" is confined to only a decree-sheet drawn on a form, it will create hardships as in such, a formal decree-sheet, no arguments, reasons. Facts and other propositions are incorporated from where the grounds of objection can be originated or justified. All the facts, details, reasoning, legal as well as factual propositions are incorporated in the order or judgment of the Court. Thus, the grounds of objections against a decree are always originated from the details of the judgment/order. In the Black's Law Dictionary, Sixth Edition, the word "decree" has been defined as following:- "Decree, The judgment of a Court of equity or chancery answering for the most purposes to the judgment of a court of law. A decree in equity is a sentence or order of the court, pronounced on hearing and understanding all the points in issue, and determining the rights of all the parties to the suit, according to equity and good conscience. It is a declaration of the court announcing the legal consequences of the facts found. With the procedural merger of law and equity in the federal and most State courts under the Rules of Civil Procedure, the term "judgment" has generally replaced "decree"."
Thus, the dictionary meanings of the word "decree" also includes the word "judgment". Our this view also stands fortified from the statutory provision of section 100 of C.P.C. Which reads as under:--- "100. Second appeal.--- Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely;---
(a) the decision being contrary to law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
A bare reading of this statutory provision speaks that in the second appeal, mainly the judgment has to be challenged. The decree is originated or founded upon the judgment and if the judgment is set aside, the "decree" cannot sustain. The Courts have to do the substantial justice and should not throw a party out of Court on technicalities. Even otherwise, there is no express statutory provision to throw out an appeal on the ground mentioned in the impugned judgment. Under the provision of rule 1 of Order XLI, C.P.C, the mandatory requirement is that the memorandum of appeal should be accompanied by a certified copy of the decree and the judgment, (if not dispensed with).
6. No doubt, the statutory provision of section 96 of C.P.C, determines the right of appeal and forum of appeal and it does not provide that clue to mere omission in the prayer to set aside a decree, makes an appeal incompetent. Even otherwise, in this case, the appellant in the first appeal has categorically prayed for setting aside the decision and decree of the trial Court.. The decrees have been passed by the trial Court which have been properly challenged in the first appeal. Whereas the first appellate Court has maintained the same and dismissed the appeal consequently, the drawn decree speaks as under:--- {{URDU TEXT} ' Thus, before the High Court, there was a second appeal which is governed by the statutory provision of section 100 of C.P.C., reproduced hereinabove which clearly speaks of the grounds of appeals originated from the decision. It appears that this statutory provision remained out of sight of the High Court while recording the impugned order , which resulted into misconception of law.
6. The counsel for the respondents failed to refer to any legal precedent dealing with this specific legal proposition. In support of his contentions, he has referred to one judgment from the Indian jurisdiction but the same is not dealing with this specific legal proposition, hence, has no nexus with the case in hand.
For the above reasons, while accepting this appeal, the impugned judgment of the High Court is set aside and consequently, the appeal is remanded to the High Court for decision on merits according to law.