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Hamida Bibi Vs. Ali Husen Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All172
AppellantHamida Bibi
RespondentAli Husen Khan
Excerpt:
civil procedure code, sections 366, 558 - abatement of suit--appeal. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board...........v. purskotam, i.l.r. 10 bom. 220, in which it was held that soon aft order is appealable. it was held by the learned judge who decided that appeal that such an order was virtually 'a decree within the meaning of section 2 of act no. xiv of 1882, as it disposes of the plaintiff's claim as completely as if a. salt had been dismissed.' the learned judges who decided that appeal appear to have overlooked the very important provisions of section 371, which allows fresno claiming to be the legal representative of a deceased to apply for an order to set aside the order of abatement. it cannot therefore be said that an order under the first paragraph of section 366 is an adjudication which, as far as the court expressing it, decides the suit or appeal. moreover, it is provided by clause (20).....
Judgment:

Knox and Aikman, JJ.

1. A preliminary objection is raised by Mr. Ghulam Mujtaba to the bearing of this appeal, on the ground that the order appealed from is an order passed under the first paragraph of Section 366 of the Code of Civil Procedure and that no appeal is provided for such order by Section 988 of the Code Our attention was drawn in the course of the argument to the case of Bhikaji Ramchandra v. Purskotam, I.L.R. 10 Bom. 220, in which it was held that soon aft order is appealable. It was held by the learned Judge who decided that appeal that such an order was virtually 'a decree within the meaning of Section 2 of Act No. XIV of 1882, as it disposes of the plaintiff's claim as completely as if a. salt had been dismissed.' The learned Judges who decided that appeal appear to have overlooked the very important provisions of Section 371, which allows Fresno claiming to be the legal representative of a deceased to apply for an order to set aside the order of abatement. It cannot therefore be said that an order under the first paragraph of Section 366 is an adjudication which, as far as the Court expressing it, decides the suit or appeal. Moreover, it is provided by Clause (20) of Section 588 of the Code that am applicant whose application for an order to set aside an abatement is refused can appeal from such order of refusal. We sustain the objection and dismiss the appeal with costs.


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