ORAL JUDGMENT R. M. S. KHANDEPARKAR, J. :- Heard the learned advocates parties. 2. This appeal arises from the judgment dated 2nd February, 1988 in First Appeal No.4 of 1978. By the impugned judgment, the learned Judge has set aside the judgment and decree dated 29-4-1977 passed by Court in Special Civil Suit No. 226 of 1973 and has ordered issue preliminary decree for partition of the property, while declaring the share parties and also giving directions for rendition of the accounts from 5-6-1 the respondent/plaintiff gets the possession of the l/7th share in the properly. 3. Though the impugned judgment and decree is sought to be challenged on various grounds, it is not necessary to deal with all those grounds and to refer to only one ground which relates to non-compliance of ma provision of law comprised under Order 41, Rule 31 of the Code Procedure by the appellate Court while passing the impugned judgment. 4. Few facts relevant for the decision are that the respondent/plaint a suit for partition claiming right to the property in question which was contested by the appellants and on conclusion of trial, the suit was dismissed. The was carried in F.A. No.4 of 1978 which was disposed of by the judgment. In fact, the appeal was disposed of in the absence of the appellants herein who were the respondents in the first appeal. Undoubtedly, the appellants served, however, they failed to appear before the Court at the time of the arguments in the first appeal. 5. Order 41, Rule 31 of the Code of Civil Procedure clearly provides that judgment of the appellate Court shall be in writing and shall state the points r determination, the decision thereon, the reasons for the decision, and where decree appealed from is reversed or varied, the relief to which the appellant is titled, and shall at the time that it is pronounced be signed and dated by the age or by the Judges concurring therein. 6. Plain reading of the said provision would disclose that the appellate court before proceeding to deliver the judgment on merits of the case has to formulate the points for determination and with reference to such points for termination, analyse the materials on record and thereupon arrive at the conclusion to be delivered as its decision. Obviously the decision should disclose reasons for the decision. Obviously the decision should disclose reasons for the decision. However, the reasons for decision by themselves cannot constitute the points for determination. The points for determination have be formulated in order to enable the Court to identify the exact points in controversy in the matter and with reference to those points, the Court has to appreciate the evidence led by the parties. In fact, the law on this aspect has been ell settled by the decision of the learned Single Judge of this Court in Vishwash alu VS. Ghasiram Ramratan Jajum, AIR 1975 Bom. 278 wherein it has been Id that the compliance of Order 41, Rule 31 is mandatory and the expression used therein "shall state" clearly discloses that the failure to comply with the said provision of law would not be a mere irregularity. Indeed, the phraseogy used Rule 31 apparently discloses that compliance of the said provision is not a were formality and therefore failure thereof cannot be said to be a mere regularity. This is also clear from Rule 30 of Order 41 and in particular sub (2) thereof. Rule 30(2) of Order 41 provides that "where a written judgment s to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the hole judgment shall be made available for the perusal of the parties or their leaders immediately after the judgment is pronounced." Obviously, in cases here on conclusion of the arguments in appeal, the judgment is reserved to be delivered and thereafter it is sought to be pronounced, it is not sufficient merely declare as to whether the appeal is allowed or not, but ultimate decision has to made known to the parties along with the points for determination which have been considered in the appeal. This provision of law clearly discloses the necessity for formulation of the point for determination before the appellate court proceeds to deliver the judgment in the appeal. 7. The learned Single Judge of this Court in Smt. Anita M. Barretto vs. Abdul Wahid Sanaullah, 1984 Mh.L.J. 931 = AIR 1985 Bom. This provision of law clearly discloses the necessity for formulation of the point for determination before the appellate court proceeds to deliver the judgment in the appeal. 7. The learned Single Judge of this Court in Smt. Anita M. Barretto vs. Abdul Wahid Sanaullah, 1984 Mh.L.J. 931 = AIR 1985 Bom. 98 , while dealing with the necessity of compliance of provisions of Order 41, Rule 31, held that When a requirement such as this is insisted upon by the procedural law of the and, one must try to understand the object and scope of such provision. Merely . Asking the question as to whether the judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of is legal provision. Further, while referring to the earlier decision in Mhasu vs. Davalat, (1905) 7 BomLR. 174, it was also reminded that there was provision in the earlier Civil Procedure Code and it was pointed out object of the Legislature in making it incumbent on an appellate Court points for determination is to clear up the pleadings and focus the attention Court and of the parties on the specific and rival contentions in the matte further held that the points which must arise for determination by a Co appeal must cover all important questions involved in the case and they. Not be general and vague. It was further held that it is a matter of almost knowledge that the exact questions which arise in the appeal for deter must be stated in the judgment. 8. It is thus clear that right from the beginning of 20th century consistent view taken by this Court is that the provision regarding the require formulation of points for determination by the appellate Court while preceding to deliver the judgment in appeal has been held to be mandatory in nature a mere irregularity. 9. The mandate of Rule 31 of Order 41 of Civil Procedure C confirmed by the Apex Court in Lakshmi Ram Bhuyan vs. Hari Prasad reported in AIR 2003 SC 351 while holding that the said rule casts an 0 on the author of the appellate judgment to state the points for determination decision thereon, the reasons for the decision and where the decree a from is reversed or varied, the relief to which the appellant is entitled. 10. 10. Attention was sought to be drawn on behalf of the respondent section 99 of the Code of Civil Procedure which provides that "no decree reversed or substantially varied, nor shall any case be remanded, in appeal account of any mis-joinder or non-joinder of parties or causes of action error, defect or irregularity in any proceedings in the suit, not affecting the of the case or the jurisdiction of the Court, provided that nothing in this shall apply to non-joinder of a necessary party." Section 99 refers to irregularities in the proceedings in the suit. Non-joinder of parties or mis-joinder of parties well as mis-joinder of causes of action are irregularities in the proceeding suit. However, even in such cases section 99 itself makes an exception matter of non-joinder of necessary parties. Though it is an irregularity, prejudicially affect the rights of the parties who are not joined and the relating to the rights of such parties are adjudicated upon in the suit. Be even in case of irregularity which affects the substantial rights of the decree can be modified irrespective of the fact that such irregularity affects merits of the case or not. 11. It is also to be noted that the provisions comprised under Order Code of Civil Procedure elaborately deal with procedure to be followed from date of filing of the appeal till it is disposed of. There are certain provisions which are mandatory in nature in relation to such procedural law whereas are some which are directory in nature. Rule 3-A under Order 41 clearly please that in case of delay in filing the appeal, the memo of appeal shall be accompanied by an application supported by an affidavit setting forth the facts which the appellant seeks to rely to satisfy the Court that he had sufficient for not preferring the appeal within the prescribed period. The words used therein "it shall be accompanied by an application". In other words, the application condonation of delay in filing the appeal cannot be filed as a matter of right after filing of appeal. In case there is delay in filing the appeal, then such application should be filed along with the memo of appeal and not thereafter. 12. The provisions comprised under Rules 17 to 21 apparently disclose the discretion in favour of the Court to be exercised depending upon the facts of the. In case there is delay in filing the appeal, then such application should be filed along with the memo of appeal and not thereafter. 12. The provisions comprised under Rules 17 to 21 apparently disclose the discretion in favour of the Court to be exercised depending upon the facts of the. It is not mandatory to dismiss the appeal on account of default on the part e appellant to appear in the matter and even after having dismissed so, it can be re-admitted and re-heard by the Court. It will all depend upon the facts of each e. Hence, it cannot be said that merely because Rule 31 forms part of the procedure to be followed by the appellate Court, that the same is directory in nature. Apart from the words used in the said Rule, which is the primary indication of the intention of the Legislature, whether the provision is mandatory not, the very purpose and object behind such Rule discloses that the compliance thereof is absolutely necessary, as has been ruled by this Court right From 1905 onwards and duly approved by the Apex Court. 13. The learned advocate for the respondent has drawn our attention to the provision of learned Single Judge of this Court in Subhash Vitthalrao Gatlewar vs. tatray Keshavrao Shinde, deceased through LRs. Ramesh Dattatray Shinde ors., reported in 2005(1) Mh.L.J. 43 . Indeed therein, while dealing with the provisions of law comprised under Order 41, Rule 31, it has been held that the compliance thereof is not mandatory but directory in nature. With utmost respect, are unable to persuade ourselves to agree with the said decision. Apart from fact that the same is directly contrary to the consistent view taken by this court from 1905 onwards and made known to the public by the decision referred ,above, considering the same, the decision in Subhash s matter, cited supra, not be held to lay down correct proposition of law on the point in issue. 14. Apart from fact that the same is directly contrary to the consistent view taken by this court from 1905 onwards and made known to the public by the decision referred ,above, considering the same, the decision in Subhash s matter, cited supra, not be held to lay down correct proposition of law on the point in issue. 14. The Apex Court in Santosh Hazari vs. Purushottam Tiwari deceased L.Rs., reported in 2001(2) Mh.L.J. 786 , while dealing with" the scope of powers of appellate Court under section 96 of the Code of Civil Procedure, observed that the task of an appellate Court affirming the findings of the trial court is an easier one and the appellate Court agreeing with the view of the trial court need not restate the effects of the evidence or reiterate the reasons given by trial Court, expression of general agreement with reasons given by the trial Court, expression of which is under appeal, would ordinarily suffice, struck a note of caution on that "expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. The findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is t competent to reverse a finding of fact arrived at by the trial Judge. As a letter of law, if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and premises, the appellate Court is entitled to interfere with the findings of fact. It was further held that "while reversing a finding of fact the appellate Court come into close quarters with the reasoning assigned by the trial Court a assign its own reasons for arriving at a different finding. This would sati Court hearing a further appeal that the first appellate Court had discharge duty expected of it." (emphasis supplied). 15. It was further held that "while reversing a finding of fact the appellate Court come into close quarters with the reasoning assigned by the trial Court a assign its own reasons for arriving at a different finding. This would sati Court hearing a further appeal that the first appellate Court had discharge duty expected of it." (emphasis supplied). 15. The ruling by the Apex Court obviously discloses that judgment is not a mere formality. The judgment ultimately decides about rights of the parties and the issue sought to be raised by the adversaries litigation. In order to make it known to the litigating parties that the. Delivering the judgment after considering the rival contentions, the material placed on record and on application of mind to the same, has decided the judgment should apparently disclose the points which are considered Judge as relevant for consideration while dealing with the matter. This revealed from the judgment only when the points for determination are pr formulated by the Court before delivering its decision on the rival content the parties. Being so, it cannot be said to be a mere formality in the court delivering the judgment upon the adjudication of the rights of the parties matter. It is rather a very important stage in the delivery of the judgment. Court. Being so, it is to be construed as a mandatory requirement to be compiled with by the appellate Court while delivering the judgment. 16. The learned advocate for the respondent also sought to content after the disposal of the appeal, the subsequent events have taken place and party interest is created in the property. It does not require much time to rejection contention, being devoid of substance. Section 144 of Code of Civil Procedure on the statute book to take due care of such circumstances. Merely because disposal of the appeal by the first appellate Court, the subsequent event the created third party interest, cannot be a justification to deny the rights . Parties in appeal. . 17. In the case in hand, bare perusal of the impugned judgment disc. That the learned Single Judge, merely because nobody had appeared on behalf the respondent in the said appeal, proceeded to dispose of the appeal without complying with the provisions of Order 41, Rule 31. Parties in appeal. . 17. In the case in hand, bare perusal of the impugned judgment disc. That the learned Single Judge, merely because nobody had appeared on behalf the respondent in the said appeal, proceeded to dispose of the appeal without complying with the provisions of Order 41, Rule 31. Bare reading of the judgment nowhere discloses that the learned Single Judge having consider necessity of formulating the questions which are required to be dealt with is appeal. It is pertinent to note that when the appellate Court has reverses judgment of the trial Court, in such circumstances, it was absolutely necessary for the first appellate Court to consider what were the points involved in matter and accordingly formulate the points for determination and then deal those points with regard to the materials on record. Failure on the part of learned Single Judge in this regard clearly warrants setting aside of the judge and remanding the matter to the first appellate Court to consider the appeal a in accordance with the provisions of law. 18. It was also sought to be contended that no prejudice is caused to appellants as during the pendency of the first appeal the original defense expired and her only claim was regarding life interest and therefore on her d the life interest came to an end. Undisputedly this aspect has not been dealt in the manner in which it was required to be dealt with by the first appeal appellate Court in the impugned judgment. It is primarily necessary for the first appellate court to deal with this aspect in accordance with the provision of law and arrive appropriate finding in that regard. It will be premature for us to deal with those points on merits in this appeal. Being so, the question of prejudice sought to be raised is also devoid of substance. 19. For the reasons stated above, the appeal succeeds. The impugned agreement is quashed and set aside and the matter is remanded to the first appellate Court to deal with F.A. No.4 of 1978 in accordance with the provision law. Being so, the question of prejudice sought to be raised is also devoid of substance. 19. For the reasons stated above, the appeal succeeds. The impugned agreement is quashed and set aside and the matter is remanded to the first appellate Court to deal with F.A. No.4 of 1978 in accordance with the provision law. Needless to say that in view of the fact that the appeal relates to the year 78, same shall be dealt with as expeditiously as possible and we, therefore, request the learned Single Judge to dispose of the same, as expeditiously as possible and preferably within a period of four months, No order as to costs. 20. At this stage, the learned advocate for the respondent prays for stay of the order for a period of six weeks. Same is opposed by the learned advocate for the appellants. In our considered opinion, since the order which we have passed in consonance with the provisions of law and is in consonance with the decision of the Apex Court, we do not find any justification for stay of the order. Besides, the matter is not decided on merits of the case and all the issues in that regard are kept open to be decided by the first appellate Court. Hence the request stay is rejected. Appeal allowed.