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Nur-ud-dIn Khan Vs. Pran Kishan Chakravarty and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All96; 47Ind.Cas.16
AppellantNur-ud-dIn Khan
RespondentPran Kishan Chakravarty and anr.
Excerpt:
civil procedure code (act v of 1908,), order xliii, rule 1(a) - order returning memorandum of appeal for presentation to proper court, whether appealable--plaint, whether includes memorandum of appeal--execution of decree--duty of executing court. - .....it was prayed that the application might be treated as one for revision if no appeal lay.2. in our opinion no appeal could be preferred to this court from the order directing the memorandum of appeal to be returned for presentation to the proper court. under order xliii, rule 1, an appeal lies from an order returning a 'plaint,' hut a 'memorandum of appeal' is not a 'plaint' and therefore that order has no application to the present case. it may be an omission on the part of the legislature, but under the law as it stands we are unable to hold that the word 'plaint' includes 'the memorandum of appeal'. this court in the case of nazar hasain v. kesri mal 12 a. 581 : a.w.n. (1890) 203 : 6 ind. dec. (n.s) 1116 held that no appeal lay from an order returning a memorandum of appeal. we see no.....
Judgment:

1. This appeal has been preferred under the following circumstance A suit was brought by the appellant for dissolution of partnership and for the taking of partnership accounts. The matter was referred to arbitration, and an award was made which was accepted by the Court and in accordance with which a decree was passed. Under the award the defendants were found entitled to Rs. 6,000 and odd from the plaintiff, and the award directed that they should realise the said amount by sale of the partnership assets. The defendants, who are respondents here, made an application to the Court for execution of the decree which, we may mention has become final. The application was resisted on the ground that under the terms of the decree the applicants for execution were not entitled to take out execution. This objection was overruled by the Gourt of first instance and the appellant subsequently paid the amount of the decree and under the terms of the award he obtained possession of the property, namely, partnership buildings and stock-in-trade, etc. The plaintiff preferred an appeal to the District Judge. The District Judge held that the decree was capable of execution but he was of opinion that no appeal lay to him, and he directed the memorandum of appeal to be returned to the appellant for presentation to the proper Court. In his opinion the value of the suit exceeded Rs. 5,000. From this order returning the memorandum of appeal the present appeal was preferred. In the alternative it was prayed that the application might be treated as one for revision if no appeal lay.

2. In our opinion no appeal could be preferred to this Court from the order directing the memorandum of appeal to be returned for presentation to the proper Court. Under Order XLIII, Rule 1, an appeal lies from an order returning a 'plaint,' hut a 'memorandum of appeal' is not a 'plaint' and therefore that Order has no application to the present case. It may be an omission on the part of the Legislature, but under the law as it stands We are unable to hold that the word 'plaint' includes 'the memorandum of appeal'. This Court in the case of Nazar Hasain v. Kesri Mal 12 A. 581 : A.W.N. (1890) 203 : 6 Ind. Dec. (N.S) 1116 held that no appeal lay from an order returning a memorandum of appeal. We see no reason to differ from the view taken in that case. We accordingly hold that this appeal as an appeal is not maintainable. Looking at the case as an application for revision we are of opinion that there are no merits in it, inasmuch as the decree made by the Court awards to the defendants the amount which they sought to recover by execution and which has been paid to them by the applicant, Whether that decree is a right decree or a wrong decree it is now top late to consider. A Court executing a decree is bound to give effect to it as it stands, and the decree in this case does award the amount claimed to the defendants. Therefore the case is without merit and we see no reason to excrcise our discretionary powers under the revisional section. We accordingly dismiss the appeal, and decline to take action in revision. The respondents will get their costs.


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