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Sarwan Pande Vs. Jagat Pande and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All771; 103Ind.Cas.315
AppellantSarwan Pande
RespondentJagat Pande and ors.
Excerpt:
- - on this report being put up before the lower appellate court, that court dismissed the appeal on the ground that the deficiency in court-fee not having been made good by the present applicant the appeal could not be entertained......the order of remand passed by the learned district judge was not maintainable. accordingly the appeal filed by the plaintiff-opposite-party in this court was dismissed.3. after remand the learned munsif overruled all the pleas urged in defence by the present applicant and ordered the award to be filed, and a decree to be passed in favour of the plaintiffs-opposite: party for possession of a certain zemindari share. against the order of the learned munsif the present applicant filed an appeal in the lower appellate court. the memorandum of appeal bore a court fee stamp of annas eight. the munsarim reported that the decree passed by the learned munsif being in accordance with the award no appeal lay against that decree, and the appeal being against the decree, the memorandum of appeal.....
Judgment:

1. This application in revision arises out of an arbitration award made without the intervention of the Court. The plaintiffs-opposite party filed an application under para. 20, Sch. 2, Civil P.C., to have the award made a rule of the Court. The learned Munsif disposed of the application by an ex-parte order in the following terms:

Judgment-suit for the enforcement of an award. Defendant's pleader states that he has instruction. Suit is heard ex-parte. Claim is not proved. Decreed with costs.

2. Against this order an appeal was filed by the present applicant in the Court of the District Judge. The District Judge set aside the order of the learned Munsif and remanded the whole case for trial de novo. Against the order of remand passed by the learned District Judge there was an appeal to this Court. But this Court held that as only one appeal is allowed by the Code against an order, a second appeal against the order of remand passed by the learned District Judge was not maintainable. Accordingly the appeal filed by the plaintiff-opposite-party in this Court was dismissed.

3. After remand the learned Munsif overruled all the pleas urged in defence by the present applicant and ordered the award to be filed, and a decree to be passed in favour of the plaintiffs-opposite: party for possession of a certain zemindari share. Against the order of the learned Munsif the present applicant filed an appeal in the lower appellate Court. The memorandum of appeal bore a Court fee stamp of annas eight. The munsarim reported that the decree passed by the learned Munsif being in accordance with the award no appeal lay against that decree, and the appeal being against the decree, the memorandum of appeal was insufficiently stamped. On this report being put up before the lower appellate Court, that Court dismissed the appeal on the ground that the deficiency in Court-fee not having been made good by the present applicant the appeal could not be entertained.

4. In our judgment the Court below was wrong in holding that the memorandum of appeal was not sufficiently stamped. It is to be noted that an appeal is allowed by Section 104(f), Civil P. C against an order filing or refusing to file an award without the intervention of the Court. That being so, the present applicant was entitled to file an appeal against the order of the learned Munsif, by which he ordered the award to be made a rule of the Court. The appeal being against an order the requisite Court-fee stamp was of eight annas and the memorandum of appeal being stamped with a Court-fee stamp of that value, was sufficiently stamped, and the appeal ought to have been heard on the merits.

5. Accordingly we allow this application, set aside the order of the Court below and remand the case to that Court with directions to re-admit the appeal to its original number and to hear and dispose of the same according to law. Costs here and hitherto shall abide the result.


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