Sant Prasad Vs. Bhawani Prasad and anr. - Court Judgment
|Judge||Piggott and ;Walsh, JJ.|
|Reported in||AIR1921All55(1); (1921)ILR43All403|
|Respondent||Bhawani Prasad and anr.|
civil procedure code, 1908, order xliii, rule 1 (u ; section 10 - executions of decree--appeal--no appeal from order in execution proceedings an appeal would not lie in the suit itself. - .....court. the suit was one of a small cause court nature and in the suit itself no second appeal would have lain, by reason of section 102 of the code of civil procedure. there has been a consensus of authority in three high courts, vide sri bullov bhattacharji v. baburam chattopadhya (1885) i.l.r. 11 calc. 169, as also shyama charan mitter v. debendra nath mukerjee (1900) i.l.r. 27 calc. 484, mavula ammal v. mavula maracoir (1906) i.l.r. 30 mad. 212 and narayan parmanand v. nagindas bhaidas (1905) i.l.r. 30 bom. 113, to the effect that a second appeal will not lie in an execution matter, if a second appeal would not have lain in the suit itself. this decision seems to us a reasonable one and, in the absence of authority to the contrary in this court, we are prepared to follow it. holding.....
Piggott and Walsh, JJ.
1. A preliminary objection is taken to the effect that no appeal lies. Under Order XLIII, Rule 1(u), an appeal from an order remanding a case will only lie where an appeal would lie from the decree of the appellate court. We have, therefore, to determine whether in the case before us an appeal would lie from a decree by the lower appellate court. The suit was one of a Small Cause Court nature and in the suit itself no second appeal would have lain, by reason of Section 102 of the Code of Civil Procedure. There has been a consensus of authority in three High Courts, vide Sri Bullov Bhattacharji v. Baburam Chattopadhya (1885) I.L.R. 11 Calc. 169, as also Shyama Charan Mitter v. Debendra Nath Mukerjee (1900) I.L.R. 27 Calc. 484, Mavula Ammal v. Mavula Maracoir (1906) I.L.R. 30 Mad. 212 and Narayan Parmanand v. Nagindas Bhaidas (1905) I.L.R. 30 Bom. 113, to the effect that a second appeal will not lie in an execution matter, if a second appeal would not have lain in the suit itself. This decision seems to us a reasonable one and, in the absence of authority to the contrary in this Court, we are prepared to follow it. Holding that no appeal lies, we dismiss this appeal with costs.