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Dalpat Zopdoo Paul Vs. Mahadu Uka - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Civil Reference No. 9 of 1911
Judge
Reported in(1912)14BOMLR259
AppellantDalpat Zopdoo Paul
RespondentMahadu Uka
Excerpt:
civil procedure code (act v of 1908), section 113, order xlv1, rule 1.-mamlatdars' courts act (bombay act 11 of 1906), section 23-possessory suit-collector, revision by-reference, power to make.;the collector hearing an application under the provisions of section 23 of the bombay mamlatdars' courts act, 1906, has no power to make a reference to the high court, under section 113 of the civil procedure code, inasmuch as he is not a court trying a suit or appeal or executing a decree. - .....it under the provisions of the civil procedure code read together with section 23 of the mamlatdars' courts act.2. section 113 of the code says that any court (within which term the collector acting under the mamlatdars' courts act, section 23, is included) may state a case and refer the same subject to the conditions and limitations prescribed.3. order xlvi, rule 1, shows that the conditions prescribed are that a reference shall be before or on the hearing of the suit or appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the court trying the suit or appeal, or executing the decree, entertains reasonable doubt.4. the collector is not a court trying a suit or appeal.....
Judgment:

Basil Scott, Kt., C.J.

1. We cannot entertain this reference because we do not think that the Collector has any power to make it under the provisions of the Civil Procedure Code read together with Section 23 of the Mamlatdars' Courts Act.

2. Section 113 of the Code says that any Court (within which term the Collector acting under the Mamlatdars' Courts Act, Section 23, is included) may state a case and refer the same subject to the conditions and limitations prescribed.

3. Order XLVI, Rule 1, shows that the conditions prescribed are that a reference shall be before or on the hearing of the suit or appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt.

4. The Collector is not a Court trying a suit or appeal or executing a decree. He, therefore, has no power of reference. He appears to be under a misapprehension as to his powers, because, Section 23(2) provides that on revision he may pass such order as he thinks fit, which gives him similar powers to those given to the High Court under Section 115 of the Civil Procedure Code.


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