.

After hearing. The hearing of an appeal should be as full and deliberate as that of an original suit. Some judges, however, I understand, have been in the habit of bringing a written judg ment into court on the day fixed for the hearing of an appeal, and proceeding forthwith to pronounce it after asking the pleaders on either side, as a matter of form, if they had anything to say. Such a practice, however conscientiously followed, must necessarily bring about an absolute denial of justice in some cases.

Language of judg

ment.

572. The judgment shall be written in English; provided that if he is not able to write an intelligible judgment in English is not the mother-tongue of the Judge, and English, the judgment shall be written in his mothertongue or in the language of the Court.

573. When the language in which the judgment is written is not the Translation of judg- language of the Court, the judgment shall, if any party so require, be translated into such language, and the translation, after it has been ascertained to be correct, shall be signed by the Judge or such officer as he appoints in this behalf.

ment.

Contents of judg- 574. The judgment of the appellate Court shall

ment.

state

(a) the points for determination;

(b) the decision thereupon;

(c) the reasons for the decision; and

(d) when the decree appealed against is reversed or varied, the relief to which the appellant is entitled,

and shall at the time that it is pronounced be signed Date and signature. and dated by the Judge or by the Judges concurring

therein.

Compare with Sec. 203, and see the notes thereto.

The reasons for the decision.-It appears that these must be given with sufficient fulness, even where the decree of the lower court is affirmed in all respects.

In the Proceedings of the 22nd July, 1869, at 4 H. C. R., App. LVI, the court observed:-" Although it is not so necessary to enter fully into the reasons for confirming as it is for reversing or modifying the decree of the lower court, still the High Court must require the appellate judges in every case to act so far in conformity with the provisions of the Code of Civil Procedure as is sufficient to show that the court has dealt with each ground of appeal, and more especially to record distinct findings on questions of fact, as the

conclusions of the lower appellate courts are final in this respect and binding on the High Court in special appeal.”

In Bhagbat Khan v. Puddo Bewa, 3 Suth. W. R., 193, the court sent back the case to the judge and ordered him to "clearly and at length take up the several points in issue between the parties, and come to a distinct finding on each and every one of them." It will be observed, however, that this section contains nothing corresponding with Sec. 204.

Held, by Markby, J., that, in saying that the 'reasons for the decision' of an appellate court must be stated, this section means not the reasons for coming to any conclusion of fact, but the reasons showing upon what points of fact or law the decision runs. The bare fact that a judge had not given the reasons for his judgment is not in itself a ground of special appeal. Ramessur Bhuttacharjee v. Shaikh Bhanoo, 12 W. R., 272.

The relief.-This is new. One would expect to find the relief specifically set out in the decree alone, not also in the judgment. It is so in original suits.

Decision when appeal is heard by two or more Judges.

575. When the appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

If there be no such majority which concurs in a judgment varying or reversing the decree appealed against, such decree shall be affirmed:

Provided that if the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, the appeal may be referred to one or more of the other Judges of the same Court, and shall be decided according to the opinion of the majority (if any) of all the Judges who have heard the appeal, including those who first heard it.

When there is no such majority which concurs in a judgment varying or reversing the decree appealed against, such decree shall be affirmed.

The High Court may from time to time make rules consistent with this Code to regulate references under this section.

576. When the appeal is heard by more Judges than one, any Judge dissenting from the judgment of the Court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same.

Dissent to be recorded.

What judgment may

direct.

577. The judgment may be for confirming, varying or reversing the decree against which the appeal is made, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be passed in appeal, the appellate Court may pass a decree or order accordingly.

Confirming-The ancient legal term for strengthening or upholding a judgment appears to be affirming': a word of constant occurrence in law reports.

Affirme (affirmare) signifieth in our common law, as much as to ratifie or approve a former law, or judgment. So is the substantive (affirmance) used. Cowells Interpreter. Confirmare est id firmum facere quod prius infirmum fuit. Co. Lit., 295.

As a rule the judgment will be 'for confirming': and following the rule laid down by the Privy Council, for the guidance of the Privy Council, the High Court "will not disturb a judgment upon a question as to the credibility of a witness, unless it be manifestly clear, from the probabilities attached to certain circumstances of the case, that the court was wrong in the conclusion drawn from such evidence." Heraloll Chuckerbutty v. Mohes Chunder Ghosal, 1 Hyde, 105; Musadee M. Cazum Sherajee v. Mirza A. M. Shoostry, 8 Moo. I. A., 90; Palmer v. Cohen, 1 Hyde, 123.

Judging from the reported decisions of the Madras High Court, I should be disposed to think that that court, ordinarily, is very slow and unwilling to pronounce an opinion to the effect that the lower court erred in its estimate of the worth of evidence adduced before it as a whole; and very slow and unwilling to reverse a decision upon the mere ground that the lower court wrongly believed or disbelieved certain evidence. Even where the High Court thinks that probably it would have come to a conclusion different from that to which the lower court came, if the High Court had been called upon to deal with the evidence as a court of first instance, the High Court will consider that it has not had the obvious advantage, which the lower court had, of watching the demeanour of the parties and witnesses, and therefore is not so well qualified as the lower court to pronounce upon the worth of what the witnesses stated; and, considering this, will say: If we had sat as the court of first instance, very probably we should have decided the case differently, but we are sitting here only as a court of appeal, and we dare not say that the lower court wrongly decided the

case.

Reversing. The word 'reverse,' from the Latin re-vert-, means properly to turn back, and then to place in the opposite position; change wholly; overthrow; change by an opposite decision; annul. Reverse, to undo, repeal, or make void. Wharton.

When the judgment in ejectment is reversed a writ of restitution' may be awarded, for the purpose of restoring possession to the proper party. Archbold, 1047. If a rule ordering restitution be not complied with, it may be enforced by attachment, 2 Salk., 508, per Holt, C. J. Where a rule of court ordered possession of lands to be restored to A., B. & C., or to D. their tenant, a demand by A. alone, without any special authority from B. or C., was held sufficient. Corbett v. Nicholls, 2 Pr. Pep., 87, C. P.

Decree. Not the decision. What is appealed from, and may be" confirmed, varied or reversed," is the decree. This must be borne in mind, since it often happens that a party to a decree who is not hurt by the decree itself fancies that he is hurt by part of the decision, and prays the appellate court to annul the objectionable part of the decision, which thing cannot be done.

Agree as to the form.-What about the terms'? I presume it must be held that they are included in form,' for the purposes of this section. Compare with Sec. 375.

As to the order.-For example one under Sec. 562.

No decree to be reversed or modified for

error or irregularity not affecting merits or jurisdiction.

578. No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal, on in the decision or in any order passed in the suit, or account of any error, defect or irregularity, whether otherwise, not affecting the merits of the case or the jurisdiction of the Court.

Nor shall any case be remanded.-This provision certainly implies that cases may be remanded in appeal on account of an error, defect or irregularity that does affect the merits of the case or the jurisdiction of the court. But how can such implication be made to consist with the plain prohibition in Sec. 564 ?

To warrant a 'remand' under Sec. 562 three things must concur, namely, (1) A disposal of the case upon a preliminary point, (2) An exclusion of essential evidence, and (3) A reversal of the decree upon such preliminary point. When these pre-requisites do not coneur, a

remand' will be irregular. See Chundernath Surma v. Ramanauth Surma, 1 Suth. W. R., 69; Sheikh Futtehoolla v. Oomdanissa Bibee and others, 14 Suth. W. R., 69; Kebul Kishen Mozoomdar v. Mussamut Ambala, 7 Suth. W. R., 326.

The opinion of the Madras High Court with regard to remanding was thus expressed :-An appellate court can remand a case on account of error, defect, or irregularity of procedure in passing a decree or order, provided the error, defect or irregularity be such as to affect the merits of the case, or the jurisdiction of the court. But when a suit has been regularly heard and determined, and on appeal the decree is reversed, the appellate court has the discretionary power to remand the case only if the decree should have been upon a preliminary point and have the effect of excluding the consideration of evidence essential to the rights of the parties. G. Muniappa Naidu v. M. Iyasamy Mudely, 5 H. C. R., 313.

Date and contents of decree.

Of the Decree in Appeal.

579. The decree of the appellate Court shall bear date the day on which the judgment was pronounced.

The decree shall contain the number of the appeal, and the memorandum of appeal, including the names and description of the appellant and respondent, and shall specify clearly the relief granted or other determination of the appeal.

The decree shall also state the amount of costs incurred in the appeal, and by what parties and in what proportions such costs and the costs in the suit are to be paid.

The decree shall be signed and dated by the Judge or Judges who passed it:

Judge dissenting from judgment need not sign decree.

Provided that where there are more Judges than one, if there be a difference of opinion among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree.

Compare with Secs. 205-6.

Copies of judgment and decree to be furnished to parties.

of

decree to be sent to

580. Certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the Court and at their expense.

581. A copy of the judgment and of the decree, certified by the appelCertified copy late Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree Court whose decree is appealed against, and shall be filed with the original proceedings in the suit, and an entry of the judgment of the appellate Court shall be made in the register of civil suits.

appealed against.