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Durga Charan Vs. Markande Misir and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1939All233
AppellantDurga Charan
RespondentMarkande Misir and anr.
Excerpt:
- - the parties shall get and pay costs in pro-portion to their success and failure in this appeal......that rs. 1210 were due. on appeal the lower appellate court has reduced the interest from 24 per cent, per annum to 12 per cent, per annum and has reduced the amount of rs. 1210 which was found due by the plaintiff to the defendant by the trial court by rs. 484. the defendant has come here in second appeal. it has been urged by the learned counsel for the appellant that no appeal lay to the lower court. his contention is that the suit was filed under the provisions of section 33, clause (1), u.p. agriculturists' relief act, which is a special act. it does not provide for an appeal from an order or decree which may be passed in the suit. there is no doubt that there are only two sections in the u.p. agriculturists' relief act, which refer to appeals. they are section 5, clause (2) and.....
Judgment:

Ganga Nath, J.

1. This is a defendant's appeal and arises out of a suit brought against him by the plaintiffs respondents for account under Section 33, Clause (1), U.P. Agriculturists Belief Act. Money was due to the defendant on a mortgage of 14th April 1928 executed by the plaintiffs respondents. The trial Court found that Rs. 1210 were due. On appeal the lower Appellate Court has reduced the interest from 24 per cent, per annum to 12 per cent, per annum and has reduced the amount of Rs. 1210 which was found due by the plaintiff to the defendant by the trial Court by Rs. 484. The defendant has come here in second appeal. It has been urged by the learned Counsel for the appellant that no appeal lay to the lower Court. His contention is that the suit was filed under the provisions of Section 33, Clause (1), U.P. Agriculturists' Relief Act, which is a special Act. It does not provide for an appeal from an order or decree which may be passed in the suit. There is no doubt that there are only two Sections in the U.P. Agriculturists' Relief Act, which refer to appeals. They are Section 5, Clause (2) and Section 23. These Sections did not apply to the present suit. The suit was tried by a Civil Court of original jurisdiction (the Munsif). Section 96, Clause (1), Civil P.C., enacts:

Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie from every decree passed by any Court exercising original jurisdiction, to the Court authorized to hear appeals from the decisions of such Court.

2. In the absence of any provision in the Civil Procedure Code or any other Act, restricting appeals, Section 96 will apply to all the decrees which are passed by any Civil Court exercising original jurisdiction. As already stated, the suit was tried by a Munsif. The order passed by him amounts to a decree as denned in Clause (2), Section 2 which provides:

'Decree' means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the right of parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

3. The decision arrived at by the trial Court is undoubtedly a formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all matters in controversy in connexion with the mortgage in suit. The general principle was laid down in National Telephone Co. Ltd. v. Postmaster General (No. 2) (1913) A.C. 546. There it was observed:

When a question is said to be referred to an established Court, without more it, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches : Per Viscount Haldane L.C. 552,

4. This principle was applied to the case reported in Hem Singh v. Basant Das . It was a case where under the provisions in the Gurdwaras Act, appeals from the tribunal were to be heard by a Division Court and not by a single Judge. The question that arose was whether an appeal lay to His Majesty in Council. Their Lordships observed that the Division Court did not exercise any special jurisdiction and the provisions of the Civil Procedure Code with reference to appeals to His Majesty in Council applied to decrees of the High Court made under Section 34, and hence a right of appeal to the Privy Council from such decrees existed. The principles laid down in both these cases fully apply to the present case. The trial Court did not exercise any special jurisdiction under the U.P. Agriculturists' Relief Act. The right of appeal will be governed by Section 96, Civil P.C. The game view has been taken in Mahadeo Prasad v. Bhaiya Lal Bakhsh Singh , by the Hon'ble Judges of the Oudh Chief Court. In my opinion an appeal lay to the lower Court.

5. The lower Court has reduced the interest from 24 per cent, per annum to 12 per cent, per annum. The interest at the rate of 24 per cent, per annum was excessive. It has not been shown that the security offered by the property mortgaged was in any way insufficient. The respondents themselves wanted only Rs. 429-3-8 to be reduced. The respondents were willing to pay Rs. 54-12-4 more. In view of this fact, the amount decreed by the Court would be increased by this sum, namely Rs. 54-12-4. The appeal is partly allowed only to this extent. The parties shall get and pay costs in pro-portion to their success and failure in this appeal. Permission for Letters Patent appeal is granted.


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