Skip to content


Elias Haji Ahmed Vs. K.B. Haji Esmail Sait - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 76 of 1921 and Suit No. 393 of 1913
Judge
Reported inAIR1923Bom200; (1923)25BOMLR237
AppellantElias Haji Ahmed
RespondentK.B. Haji Esmail Sait
Excerpt:
appeal - practice-procedure-exceptions to commissioner's report-appeal from the decision of the court hearing exceptions-court passing a final decree before the hearing of the appeal-court not competent to pass such decree-appeal from the decree necessary to set it aside.;the plaintiff filed exceptions to the report of the commissioner's made on a reference. the exceptions were heard by the court of first instance and the plaintiff filed an appeal against its decision. while the appeal proceedings were pending the case was set down before the lower court for directions and costs on the commissioner's report.;the lower court confirmed the commissioner's report and passed a decree which was drawn up. then the appeal was decided and the plaintiff succeeded to a certain extent. the plaintiff,..........of mr. justice kajiji filed an appeal, and to a certain extent succeeded in this court, but while the appeal proceedings were pending, it seems that the case was set down before the judge for directions and costs on the commissioner's report. that could only properly be done after the exceptions had been dealt with and finally disposed of. while the hearing of the exceptions was pending in this court the lower court was not competent to hear any application for further directions on the commissioner's report which had not been finally settled. the court having made an order on further directions a decree was drawn up. then the decision was given by this court on the exceptions, but it was incumbent on the plaintiff, as there was a final decree on the record, to appeal from that.....
Judgment:

Norman Macleod, Kt., C.J.

1. This case has been set down before us in a somewhat informal manner owing to an extraordinary series of errors of procedure which have been committed. Originally there was a reference to the Commissioner and on that reference to the Commissioner, a report was made. The plaintiff filed exceptions to the Commissioner's report which were heard by Mr. Justice Kajiji. The plaintiff dissatisfied with the decision of Mr. Justice Kajiji filed an appeal, and to a certain extent succeeded in this Court, but while the appeal proceedings were pending, it seems that the case was set down before the Judge for directions and costs on the Commissioner's report. That could only properly be done after the exceptions had been dealt with and finally disposed of. While the hearing of the exceptions was pending in this Court the lower Court was not competent to hear any application for further directions on the Commissioner's report which had not been finally settled. The Court having made an order on further directions a decree was drawn up. Then the decision was given by this Court on the exceptions, but it was incumbent on the plaintiff, as there was a final decree on the record, to appeal from that decree.

2. The plaintiff instead of appealing against the decree made an application to the Commissioner to amend his report in accordance with the decision of the Appeal Court, and the series of errors was completed by the Commissioner amending his report and the defendants filing exceptions to it. The whole of the proceedings in the lower Court while the appeal was pending were incompetent, but as a decree has been passed, the only way that the plaintiff can get rid of it is by an appeal. At present he is out of time, but he can make an application to have the delay excused. The defendant has asked for time and, therefore, we will hear the application next Monday. All costs to be reserved.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //