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Nilkant Vasudeo Samant and ors. Vs. Balwant Pandurang Samant - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Reported inAIR1925Bom431
AppellantNilkant Vasudeo Samant and ors.
RespondentBalwant Pandurang Samant
Excerpt:
- indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. .....court, and the preliminary objection has been taken by the respondent's pleader that no second appeal lies. the order made by the subordinate judge was under order 7, rule 10. under order 43, rule 1 (a), an appeal lies under the provisions of section 104 from an order under order 7, rule 10. section 104 says: 'an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this code or by any law for the time being in force from no other orders... (i) any order made under rules from which an appeal is expressly allowed by rules.' sub-section (2) says 'no appeal shall lie from any order passed in appeal under this section.' it is clear, therefore, that this is an order passed by the district judge in appeal from the order of the subordinate.....
Judgment:

Macleod, C.J.

1. The plaintiff filed this suit in the Court of the joint Subordinate Judge at Malvan who held that the Court had no jurisdiction and directed the plaint to be returned for presentation to the proper Court. The plaintiff appealed to the District Judge, who held that the Malvan Court had jurisdiction in the case, and accordingly sent it down for trial according to law. The defendants filed a second appeal to this Court, and the preliminary objection has been taken by the respondent's pleader that no second appeal lies. The order made by the Subordinate Judge was under Order 7, Rule 10. Under Order 43, Rule 1 (a), an appeal lies under the provisions of Section 104 from an order under Order 7, Rule 10. Section 104 says: 'An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other orders... (i) any order made under rules from which an appeal is expressly allowed by rules.' Sub-section (2) says 'No appeal shall lie from any order passed in appeal under this section.' It is clear, therefore, that this is an order passed by the District Judge in appeal from the order of the Subordinate Judge. That appeal was admitted under Order 43, but no further appeal is allowed under Section 104. The appeal is dismissed with costs on the ground that no second appeal lies.


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