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Pt. Krishna Kant Malaviya Vs. Lala Amarnath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All566
AppellantPt. Krishna Kant Malaviya
RespondentLala Amarnath and ors.
Excerpt:
- - he failed to furnish the security within the required time and the appeal had to be rejected under sub-rule (3) made by this court, and was therefore dismissed for want of prosecution on 5th november 1936. on 4th december 1936 an application was made for the restoration of the appeal on the ground that the appellant had not sufficient information of the time allowed.order1. this is an application for leave to appeal to his majesty in council. a second appeal which was tentatively valued at rs. 3,000 was filed in this court in 1935. under order 41, rule 10, proviso (which has been added by this court), the appellant was called upon to furnish security for the costs of the appeal. he failed to furnish the security within the required time and the appeal had to be rejected under sub-rule (3) made by this court, and was therefore dismissed for want of prosecution on 5th november 1936. on 4th december 1936 an application was made for the restoration of the appeal on the ground that the appellant had not sufficient information of the time allowed. this application for restoration was also dismissed on 4th january 1937 by the same bench. on 3rd february.....
Judgment:
ORDER

1. This is an application for leave to appeal to His Majesty in Council. A second appeal which was tentatively valued at Rs. 3,000 was filed in this Court in 1935. Under Order 41, Rule 10, Proviso (which has been added by this Court), the appellant was called upon to furnish security for the costs of the appeal. He failed to furnish the security within the required time and the appeal had to be rejected under Sub-rule (3) made by this Court, and was therefore dismissed for want of prosecution on 5th November 1936. On 4th December 1936 an application was made for the restoration of the appeal on the ground that the appellant had not sufficient information of the time allowed. This application for restoration was also dismissed on 4th January 1937 by the same Bench. On 3rd February 1937 the present application was filed for leave to appeal from the last order dated 4th January 1937. It does not purport to be an application for leave to appeal from the order dated 5th November 1936, presumably as more than the prescribed 60 days had already expired long before the date of the application. On behalf of the appellant it is contended that the value of the subject matter affected by the suit is in excess of Rs. 10,000. This fact is disputed on behalf of the respondents.

2. It seems to us that the appellant has no right to appeal under Section 109(a) and (b), Civil P.C., and as the case does not fulfil the requirements of that section we cannot grant the certificate asked for. Under that section an appeal lies to His Majesty in Council from any decree or final order passed on appeal by a High Court, or from any decree or final order passed by a High Court in the exercise of original civil jurisdiction. It is not contended that this order was passed in the exercise of original jurisdiction; but it is contended that this was an order passed on appeal by the High Court. Even as regards this contention there is a ruling of this Court in Jai Pratap Narain Singh v. Rabi Pratap Narain Singh : AIR1933All453 according to which such an order would not be an order passed in appeal though it would be an order passed in the exercise of appellate jurisdiction. But quite apart from this, it seems to us that the order is cot a 'final' order within the meaning of Section 109. Their learned advocate for the applicant relies on the case in Mahadeo Sahi v. Secretary of State : AIR1932All312 . In that case the leave was sought from the order dismissing the appeal itself and not from the t order dismissing the application for restoration. That case is therefore distinguishable. The dismissal of the present appeal was under the Rule made by this Court, which is a part of the Code of Civil Procedure. The dismissal of the application for restoration was in the exercise of the inherent jurisdiction of this Court. The Court was not bound to restore the case and had discretion in the matter which of course had to be exercised judicially. No cardinal point between the parties was decided by the order dated 4th January 1937. Nor have the rights of the parties in the case itself been adjudicated upon in that order. We are, therefore, unable to hold that the order in question was a final order within the meaning of Section 109(a). Nor do we think that this is a fit case in which we should grant a certificate under (c) of that section. The application is dismissed with costs.


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