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Balanatha Vs. Bhiva Natha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom496
AppellantBalanatha
RespondentBhiva Natha
Excerpt:
civil procedure code (act iv of 1882), section 629--order on application to review--appeal from decree as amended--second appeal--practice. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law..........by section 629. the present second appeal is, therefore, in form against a decree restoring the original decree, although the real objection to it may be, not that the amendment is wrong, but that no amendment should have been allowed under the circumstances.2. but it is further said that in any case the decree now appealed against is final under section 629, as it is, in terms, an order refusing the plaintiff's application. that section prima facie applies to the court which has passed the original decree, but it would, we are inclined to think, be properly deemed to apply according to its spirit to an order by the appellate court. however, it is not necessary to decide the point, as we have no doubt that the decision was a right one for the reasons given by the assistant judge. the.....
Judgment:

Charles Sargent, C.J.

1. A preliminary objection has been taken that no second appeal lies in this case. That would have been so if the order now appealed against had been made on appeal from the order allowing review, as was the case in Shan Singh v. Chundan Singh I.L.R. Cal. 296. Here, however, the appeal to the first Appellate Court, as shown by the stamp and its express terms, is against the decretal order itself as amended by the Subordinate Judge after following the review, and the objection to the order granting the review was taken on that appeal as contemplated by Section 629. The present second appeal is, therefore, in form against a decree restoring the original decree, although the real objection to it may be, not that the amendment is wrong, but that no amendment should have been allowed under the circumstances.

2. But it is further said that in any case the decree now appealed against is final under Section 629, as it is, in terms, an order refusing the plaintiff's application. That section prima facie applies to the Court which has passed the original decree, but it would, we are inclined to think, be properly deemed to apply according to its spirit to an order by the Appellate Court. However, it is not necessary to decide the point, as we have no doubt that the decision was a right one for the reasons given by the Assistant Judge. The Assistant Judge refused to consider the application made to him to amend the decree under Section 206, as that question was not, strictly speaking, before the Subordinate Judge, and at the most he only expressed an opinion. We think the Assistant Judge adopted, on the whole, the right course, and we must confirm the order with costs.


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