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Ahmedbhoy Habibbhoy Vs. Waman Dhondu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 565 of 1911
Judge
Reported inAIR1914Bom82; (1914)16BOMLR72
AppellantAhmedbhoy Habibbhoy
RespondentWaman Dhondu
DispositionAppeal dismissed
Excerpt:
.....court was not maintainable. - - we are, therefore, of opinion that the preliminary objection is good that the appeal to the high court is not..........from the decision of the district judge to the high court, and the question is whether such appeal lies, an appeal lies only if it is expressly given by the act. it does not lie merely by analogy to appeals in civil suits : see rangoon botatoung co. v. the collector, rangoon (1912) l.r. 39 indap 197 : 14 bom l.r. 833.3. now an appeal lies to the high court in proceedings under the land acquisition act under the conditions specified in section 54 of that act. that section says:' subject to the provisions of the code of civil procedure applicable to appeals from original decrees, an appeal shall lie to the high court from the award, or from any part of the award, of the court in any proceedings under this act.' the section is there obviously dealing with appeals from original.....
Judgment:

Basil Scott, Kt., C.J.

1. In this case an award was made under the Land Acquisition Act which did not exceed Rs. 5000. The reference to the Court was in accordance with the provisions of the Bombay Civil Courts Act to the Assistant Judge, and he tried the reference. Under the same Act an appeal lay to the District Judge as the amount or value of the subject-matter did not exceed Rs. 5,000, and he heard the appeal. That was analogous to an appeal from an original decree.

2. An appeal is now preferred from the decision of the District Judge to the High Court, and the question is whether such appeal lies, An appeal lies only if it is expressly given by the Act. It does not lie merely by analogy to appeals in civil suits : see Rangoon Botatoung Co. v. The Collector, Rangoon (1912) L.R. 39 IndAp 197 : 14 Bom L.R. 833.

3. Now an appeal lies to the High Court in proceedings under the Land Acquisition Act under the conditions specified in Section 54 of that Act. That section says:' Subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees, an appeal shall lie to the High Court from the award, or from any part of the award, of the Court in any proceedings under this Act.' The section is there obviously dealing with appeals from original decrees, and impliedly it recognizes that there may be cases in which the appeal from the original decree will not lie to the High Court.

4. Turning to the provisions of the Civil Procedure Code relating to appeals from original decrees we find that Section 96(I) provides : ' Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.' Now, under Section 16 of the Bombay Civil Courts Act, the Court authorized to hear appeals from the Assistant Judge's Court where the value of the subject-matter is less than Rs. 5,000 is the District Court and not the High Court. We are, therefore, of opinion that the preliminary objection is good that the appeal to the High Court is not maintainable. One set of costs.


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