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Karimmiya Hamdumiya Soniwala Vs. Jafarali Bawamiya - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai
Decided On
Case NumberFirst Appeal No. 337 of 1940
Judge
Reported inAIR1942Bom279; (1942)44BOMLR666
AppellantKarimmiya Hamdumiya Soniwala
RespondentJafarali Bawamiya
DispositionAppeal dismissed
Excerpt:
.....appeal lies from such order. ;an order passed by a court under section 6c of the mussalman wakf (bombay amendment) act, 1935, being final under section 6 f of the act, no appeal lies from such order. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from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 infructuous because of his demise held, high court of bombay, is not correct in..........court has an inherent right to sit in appeal over another court. the jurisdiction of this court to hear appeals from district courts is conferred by the civil procedure code. we can hear appeals against decrees under section 96 and from certain orders under section 104, but the order made in this case does not fall within either of those descriptions. in point of fact no order has been drawn up. counsel for the appellant seems to have appreciated that it was desirable to have a decree to appeal from, and he asked the court to draw one up, and there is recorded in the margin of the application the word 'yes,' but nothing has been done. i have said over and over again that this court will hear appeals from decrees and orders which are appealable and which have been properly drawn up, but.....
Judgment:

Beaumont, C.J.

1. This purports to be an appeal from the District Judge of Ahmedabad in a matter which arises under the Wakf Act, and a preliminary objection is 'taken that no appeal lies.

2. Under the Mussalman Wakf Act of 1923 mutawallis of wakfs are required to furnish to the Court certain particulars relating to the wakf and accounts. The Court, so far as the present matter is concerned, is the District Court. Under that Act the Court is acting merely as an office in which accounts have to be filed. But under the Mussalman Wakf (Bombay Amendment) Act of 1935, the Court is given certain judicial powers. Under Sections 6A and 6B it can make orders on the mutawalli requiring him to do certain things, and under Section 6C the Court may, either on its own motion or upon the application of any person claiming to have an interest in a wakf, hold an inquiry on the matters therein specified, and the result of the inquiry has to be recorded. Then Section 6F provides that the entries made by the Court in the Register of Wakfs and the findings recorded under Section 6C shall, subject to the provisions of Section 6G, be final for the purposes of the Act. Section 6G provides that a civil Court of competent jurisdiction deciding any question relating to any wakf may direct that the Court shall make such entries or amendments of entries in the Register of Wakfs relating to the said wakfs as are consequential upon its decision. The learned Judge in this case was holding an inquiry under Section 6C at the instance of persons claiming to have an interest in the wakf, and it is difficult to see, in view of Section 6F, which provides that a finding recorded under Section 6C shall be final for the purposes of the Act, how any appeal can lie from a decision of the District Court on an inquiry under Section 6C. Obviously, if we can alter the findings of the District Court, those findings are not final. I am disposed to think, therefore, that the Act forbids an appeal from a finding recorded under Section 6C; but even if that is not so, no Court has an inherent right to sit in appeal over another Court. The jurisdiction of this Court to hear appeals from District Courts is conferred by the Civil Procedure Code. We can hear appeals against decrees under Section 96 and from certain orders under Section 104, but the order made in this case does not fall within either of those descriptions. In point of fact no order has been drawn up. Counsel for the appellant seems to have appreciated that it was desirable to have a decree to appeal from, and he asked the Court to draw one up, and there is recorded in the margin of the application the word 'Yes,' but nothing has been done. I have said over and over again that this Court will hear appeals from decrees and orders which are appealable and which have been properly drawn up, but normally will not hear appeals from decrees and orders which have not been drawn up. We must see what the order is which we are asked to alter. In my opinion, the preliminary objection prevails, and no appeal lies in this case.

3. Mr. Desai asks us to treat this as an application in revision, but in view of the fact that no order has been drawn up, I decline to entertain this application as one in revision.

4. The appeal is dismissed with costs.

Sen, J.

5. I agree.

6. Appeal dismissed.


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