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Nilkanth Vasudeo Samant and ors. Vs. Balvant Pandurang Samant - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in88Ind.Cas.753
AppellantNilkanth Vasudeo Samant and ors.
RespondentBalvant Pandurang Samant
Excerpt:
civil procedure code (act v of 1908), section 101, order vii, rule 10, order xliii, rule 1(a) - order directing return of plaint for presentation to proper court--appeal, second, whether lies. - maharashtra village police act (46 of 1967)sections 5, 6 & 15: [swatanter kumar, c.j., a.p. lavande & smt. vasanti a. naik, jj] powers of police patil held, section 15 clearly states the varied powers that are vested in the police patil. he is vested with the power to call and examine witnesses, record their statements and search for concealed articles. such are the powers given to the police patil under the provisions of the village police act. the powers vested in the police patil under the provisions of the village police act are relatable to the duties and functions for which the police..........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 vii, rule 10 under order xliii, rule 1(a), an appeal lies under the provisions of section 104 from an order under order vii, 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:

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 VII, Rule 10 Under Order XLIII, Rule 1(a), an appeal lies under the provisions of Section 104 from an order under Order VII, 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 XLIII, 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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