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Krishnaji Sakharam Kulkarni Vs. Maruti AppA. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Civil Application No. 257 of 1909
Judge
Reported in(1910)12BOMLR762
AppellantKrishnaji Sakharam Kulkarni
RespondentMaruti AppA.
Excerpt:
.....decree-dekkhan agriculturists relief act (xvii of 1879), section 53-revisional application to the district judge-high court-revision.;the plaintiffs alleging that they were agriculturists filed a redemption suit. the subordinate judge raised a preliminary issue whether the plaintiffs were agriculturists, and found it in the plaintiffs' favour. the defendant applied to the district judge in revision under section 53 of the dekkhan agriculturists' relief act, 1879; but he, being of opinion that the decision on the preliminary issue was not a decree, declined to consider the correctness of the decision of the subordinate judge. the defendant next applied to the high court under section 2 of the civil procedure code on the ground that the district judge had declined to exercise the..........favour of the plaintiffs.5. from that decision an appeal was filed but before it was heard by the district judge, the pleader of the defendant asked that it might be-converted into an application in revision under section 53 of the dekkhan agriculturists' relief act. accordingly the district judge considered the application as a matter in revision and being of opinion that the decision that the plaintiffs were agriculturists was not a decree, declined to consider the correctness of the decision of the subordinate judge.6. the defendant now applies to us under section 115 of the civil procedure code on the ground that the district judge has declined to exercise the jurisdiction vested in him by law under section 53 of the dekkhan agriculturists' relief act.7. the question whether he has.....
Judgment:

Basil Scott, Kt., C.J.

1. This is a redemption suit filed by the plaintiffs who contend that they are agriculturists.

2. The principal money expressed to be secured by the instrument of mortgage whereby the property was first mortgaged was Rs. 300, and the plaintiffs contend that that was superceded by a sham document expressed to secure Rs. 360.

3. Now for the purpose of suits valuation the principal money expressed to be secured by the instrument of mortgage is the test. It is therefore a suit in which the subject matter does not exceed in amount or value Rs. 500, and if the Dekkhan Agriculturists' Relief Act applies, no appeal would lie from any decree or order.

4. The preliminary issue, whether the plaintiffs were agriculturists, was determined by the Subordinate Judge in favour of the plaintiffs.

5. From that decision an appeal was filed but before it was heard by the District Judge, the pleader of the defendant asked that it might be-converted into an application in revision under Section 53 of the Dekkhan Agriculturists' Relief Act. Accordingly the District Judge considered the application as a matter in revision and being of opinion that the decision that the plaintiffs were agriculturists was not a decree, declined to consider the correctness of the decision of the Subordinate Judge.

6. The defendant now applies to us under Section 115 of the Civil Procedure Code on the ground that the District Judge has declined to exercise the jurisdiction vested in him by law under Section 53 of the Dekkhan Agriculturists' Relief Act.

7. The question whether he has done so or not depends upon the definition of ' decree ' and ' order' in the Civil Procedure Code, for, the District Judge has jurisdiction to call for and examine the record and pass any decree or order he thinks fit in the case of any decree or order passed by a Subordinate Judge in any suit or other matter under Chapters II, IV or VI of the Dekkhan Agriculturists' Relief Act.

8. Now it is difficult to see how the decision of the Court when formally expressed is not either an order or a decree, for, an ' order' by Section 2 of the Civil Procedure Code means the formal expression of any decision of the Civil Court which is not a decree. Therefore, if the decision that the plaintiffs are agriculturists is not a decree when it is formally expressed, it is an order, and the District Judge has jurisdiction.

9. In our opinion, however, the formally expressed decision upon the point would be a preliminary decree within the meaning of Section 2, being an adjudication which so far as regards the Court expressing it conclusively determined the rights of the parties with regard to the manner in which accounts between them should be taken notwithstanding the written contract that they had entered into before suit.

10. We do not think that any difficulty arises from the terms of Order 20, Rule 6 which has been referred to. If the decree is not a decree in which relief is granted or in which the suit is determined, it is manifest that it cannot specify the relief granted or other determination of the suit.

11. For these reasons we think that the learned District Judge should not have declined jurisdiction in the case and we make the rule absolute and direct the District Judge to entertain the revisional application and dispose of the same according to law.

12. Costs will be costs in the cause.


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