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Lachhmi NaraIn Sahu and ors. Vs. Bindra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All753; 97Ind.Cas.184
AppellantLachhmi NaraIn Sahu and ors.
RespondentBindra and ors.
Excerpt:
- - but i do not think it can be said that the court below has failed to exercise a proper jurisdiction or that it has acted in the exercise of its jurisdiction illegally or with material irregularity......of small causes a suit for the determination or enforcement of any other right to or interest in immovable property. i do not think that this suit can be said to be a suit of the nature specified in clause (11). it is not for the determination or enforcement of any specified right or interest in immovable property, the plaintiff merely asks that he may execute his decree against the property, of all the three defendants. it may be that the prayer includes immovable property, but the only relief claimed by the plaintiff is to recover his money from the property of the defendants, and i think this cannot be held to be a suit falling within the scope of clause (11) of the second schedule. i hold, therefore, that no second appeal lies.3. it has been argued that if no second appeal lies.....
Judgment:

King, J.

1. A preliminary objection has been raised in this case that no second appeal lies, because the suit is of the nature cognizable by a Court of Small Causes and the subject-matter of the suit does not exceed Rs. 500. It is admitted that the subject-matter of the suit does not exceed Rs. 500; and the only question is whether the suit is of the nature cognizable by a Court of Small Causes. This suit was for the recovery of money on a hundi executed by Defendant No. 1, who was the manager of the joint family represented by himself and his son. Defendant No. 2, and his brother, Defendant No. 3. Defendant No. 1 borrowed the money for starting a shop, which was to be run for the benefit of the family-and not specially by or for Defendant No. 1 personally. The plaintiff brought the suit to recover the money, which was less than Rs. 500 from Defendant No. 1 personally and from the property of all three defendants.

2. It has been argued for the appellant that a suit of this nature would not be cognizable by a Court of Small Causes, because it falls within the scope of Clause (11) of the Second Schedule to the Provincial Small Cause Courts Act of 1887. This clause excepts from the cognizance of a Court of Small Causes a suit for the determination or enforcement of any other right to or interest in immovable property. I do not think that this suit can be said to be a suit of the nature specified in Clause (11). It is not for the determination or enforcement of any specified right or interest in immovable property, The plaintiff merely asks that he may execute his decree against the property, of all the three defendants. It may be that the prayer includes immovable property, but the only relief claimed by the plaintiff is to recover his money from the property of the defendants, and I think this cannot be held to be a suit falling within the scope of Clause (11) of the Second Schedule. I hold, therefore, that no second appeal lies.

3. It has been argued that if no second appeal lies then the case can be dealt with by way of revision, and it has been argued that the Court below has acted with material irregularity in refusing to give a decree against the interests of Defendant No. 3 in the joint family property. The order of the Court below may be right or it may be wrong; but I do not think it can be said that the Court below has failed to exercise a proper jurisdiction or that it has acted in the exercise of its jurisdiction illegally or with material irregularity. At the most it can be said that the Court took a wrong view of the law as regards the extent to which the property of Defendant No. 3 should he liable for the debt. I hold that this Court cannot interfere with the decree of the Court below in exercise of revisional powers. I therefore dismiss this appeal with costs including fees on the higher scale.


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