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Peddi Siviah Vs. C. Ramanath, a Firm Carrying on Business at General Bazar, Secunderabad Per Its Proprietor Badrinath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. Nos. 100 of 1956 and 59 of 1957
Judge
Reported inAIR1961AP327
ActsCode of Civil Procedure (CPC) , 1908 - Sections 107 and 107(2) - Order 7, Rule 10
AppellantPeddi Siviah
RespondentC. Ramanath, a Firm Carrying on Business at General Bazar, Secunderabad Per Its Proprietor Badrinath
Appellant AdvocateM. Lakshminarasiah and ;V.V.L. Narasimah Rao, Advs.
Respondent AdvocateA.S. Prakasam and ;A. Raghuvir, Advs.
Disposition Appeal allowed
Excerpt:
civil - appeal - section 107 (2) order 7 rule 10 of code of civil procedure,1908 - appeal arise out of an order by subordinate judge - issue arose relating to maintainability of appeal to district judge -where appeal from order of subordinate judge properly lay to high court wrongly entertained by district judge and allowed - proper course to be followed in appeal to high court from order of district court to direct lower appellate court to return memorandum of appeal applying provision of order 7 rule 10 read with section 107. - .....of 1956 is brought by the plaintiff-judgment-debtor from the appellate order of the court of the district judge of secunderabad confirming as against him the aforesaid order of the subordinate judge. c. m. s. a. no. 59 of 1957 is brought by the defendant-decree-holder against the appellate order of the court of the district judge, secunderabad allowing the appeal of the plaintiff's surety from the same order of the subordinate judge. 2. a preliminary objection is taken in c. m. s. a. no. 100 of 1956 by the defendant-decree-holder that no appeal lay to the court of the district judge. this point was also raised by him as a ground of attack against the order of the district judge in c. m. s. a. no. 59 of 1957 against the order of the district judge. the objection is founded on section 15.....
Judgment:

Krishna Rao, J.

1. These appeals arise out of an order dated 20-7-1956 made by the Court of the Subordinate Judge Secunderabad directing attachment of the movables of the plaintiff-judgment-debtor and his surety in execution. C. M. S. A. No. 100 of 1956 is brought by the plaintiff-judgment-debtor from the appellate order of the Court of the District Judge of Secunderabad confirming as against him the aforesaid order of the Subordinate Judge. C. M. S. A. No. 59 of 1957 is brought by the defendant-decree-holder against the appellate order of the Court of the District Judge, Secunderabad allowing the appeal of the plaintiff's surety from the same order of the Subordinate Judge.

2. A preliminary objection is taken in C. M. S. A. No. 100 of 1956 by the defendant-decree-holder that no appeal lay to the Court of the District Judge. This point was also raised by him as a ground of attack against the order of the District Judge in C. M. S. A. No. 59 of 1957 against the order of the District Judge. The objection is founded on Section 15 of the Hyderabad City Civil Court Act, 1954 which is in the following terms:

'15 (1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge or an Additional Subordinate Judge shall lie

(a) to the District Judge where the value of the original suit in which or any proceeding arising out of which the decree or order was made does not exceed rupees five thousand;

(b) to the High Court in any other case.'

The suit out of which the execution proceedings that have given rise to both the appeals arose was valued at Rs. 6900/- and odd. Therefore it is clear that both the appeal by the plaintiff-judgment-debtor and the appeal by his surety lay only to the High Court. The learned counsel for the appellant in C. M. S. A. No. 100 of 1956 and for the respondent in C. M. S. A. No. 59 of 1957 did not dispute this position. They merely urge that the lower Court should be directed to return both the appeal memoranda for presentation to the High Court.

In both the cases the lower appellate Court entered into merits which it was incompetent to do. It has been held in a catena of decisions that the proper course in such circumstances is to direct the lower appellate Court to return the memorandum of appeal for presentation to the proper Court applying the provisions of Order 7, Rule 10 read with Section 107 C. P. C.-- Narayan v. Tukaram, AIR 1923 Nag 310, Sukhdeoji v. Ramlal, AIR 1933 All 108 Sitaram Singh v. Tika Ram Singh, AIR 1942 Oudh 481 and Ramchandrti v. Pannalal, AIR 1954 Raj. 191.

There is also an observation in Kunhikutti v. Achotti, ILK 14 Mad 462 where a Division Bench consisting of Muthusami Ayyar and Wilkinson, JJ. observed that the order returning the petition of appeal for presentation to the proper tribunal was an order made with reference to the provisions of Sections 57 and 582 of the old Code of Civil Procedure which correspond to Order 7, Rule 10 and Section 107(2) of the present Code. The only case striking a different note brought to my notice is Sitarama Murti v. Lakshminarayanamurti, AIR 1943 Mad 185 where a second appeal against an incompetent appeal to the Subordinate Judge was dismissed. That appears to be a case where no appeal at all lay from the first Court's order and therefore no question of return of the appeal memorandum for presentation to proper Court arose.

3. The orders of the Court of the District Judge in these two appeals are set aside as being incompetent and the order of the Subordinate Judge restored. The cases are sent back to the Court of the District Judge for returning the memoranda of appeal to the respective appellants for presentation to proper Court. As no objection to the jurisdiction to the lower appellate Court was taken there, the parties will bear their own costs in these appeals.


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