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Zipru Talhoo Vs. Hari Supdushet Vani - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1223 of 1916
Judge
Reported inAIR1917Bom133; (1917)19BOMLR774
AppellantZipru Talhoo
RespondentHari Supdushet Vani
DispositionAppeal dismissed
Excerpt:
.....1908, dismissing the application is an order 'made under rule 101 ' within the meaning of those words in rule 103. the party against whom such an order is made cannot appeal against it under section 47, code of civil procedure, but must file a separate suit under order xxi, rule 103. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become..........and a dismissal of the application for such an order. that appears from a perusal of order ix, rule 9 read with order xliii, rule 1(c); order ix, rule 13 read with order xliii, rule 1, (d); order xxii, rule 9 read with order xliii, rule 1(k); order xxv, rule 2 read with order xliii, rule 1(n); order xli, rule 19 read with order xliii, rule 1(t); and order xli, rule 21 read with order xliii, rule 1(t). we should violate a sound principle of construction if we were to construe the words ' an order made under rule' in rule 103 of order xxi in a different sense to the obvious construction to be placed upon the words an order under rule' throughout order xliii. we dismiss the appeal with costs.batchelor, j.3. i agree that this is probably the right construction of rules 200, 101 and 103.....
Judgment:

Basil Scott, Kt., C.J.

1. The appellants being aggrieved by the possession obtained by the judgment-creditor of family property in which they had an interest and they not being judgment-debtors applied under Order XXI, Rule 100, complaining of their dispossession by the judgment-creditor. Upon that application the Court decided in favour of the judgment-creditor and dismissed the application. The question is whether the appellants are now parties against whom an order has been made under Rule 101 who may institute a suit to establish the right which they claim to present possession of the property and against whom in default of a suit the order is conclusive. In my opinion the order made against an applicant refusing him relief under Rule 101 is as much an order under that rule, as an order granting him relief would be. The rule is a reproduction with certain alterations of part of Section 332 of the Code of 1882, which provided that ' if the Court finds that the ground mentioned in the first paragraph of the section exists, it shall make an order that the applicant recover possession of the property and if it does not find as aforesaid, it shall dismiss the application.' The words 'it shall dismiss the application' are not to be found in the present Code, but that appears to me to be because they were unnecessary. If an application is not granted it must be dismissed, but nevertheless the order is made on the application and I find it very difficult to hold that an order dismissing an application does not fall under the same rule as an order granting the application. If Rule 103 applies to the present case, as I think it does, then the appellants though parties to the suit and not judgment-debtors, cannot have an appeal under the general Section 47.

2. The question which has been reargued at the desire of the Court is whether an order made upon an application under Rule 100 of Order XXI dismissing the application is an order ' made under Rule 101 ' within the meaning of those words in Rule 103. Mr. Patwardhan on behalf of the respondents has shown that the Legislature in enacting the Code of Civil Procedure and the rules framed thereunder, has constantly used the expression 'an order under rule so and so' as covering both the order which the rule directs shall be made and a dismissal of the application for such an order. That appears from a perusal of Order IX, Rule 9 read with Order XLIII, Rule 1(c); Order IX, Rule 13 read with Order XLIII, Rule 1, (d); Order XXII, Rule 9 read with Order XLIII, Rule 1(k); Order XXV, Rule 2 read with Order XLIII, Rule 1(n); Order XLI, Rule 19 read with Order XLIII, Rule 1(t); and Order XLI, Rule 21 read with Order XLIII, Rule 1(t). We should violate a sound principle of construction if we were to construe the words ' an order made under rule' in Rule 103 of Order XXI in a different sense to the obvious construction to be placed upon the words an order under rule' throughout Order XLIII. We dismiss the appeal with costs.

Batchelor, J.

3. I agree that this is probably the right construction of Rules 200, 101 and 103 of Order XXI, having regard to the corresponding provisions of the Code of 1882. But I must say for myself that I have some little difficulty in extracting this conclusion from the words of Rule 101 and it seems to me that if we were to be guided by those words alone, there would be much force in the argument that the only order contemplated by this Rule 101 is an order putting the applicant into possession of the property, so that an order refusing to put the applicant into possession would be merely an order rejecting his application and not an order falling under Rule 101. It may well be, however, that the phraseology in Rule 101 is to be explained by a desire on the part of the Legislature to abbreviate their language so far as possible and having regard to the provisions in the old Code, provisions which there seems to have been no intention to vary, I agree that the appeal must be dismissed.


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