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Amba Prasad Vs. Mushtaq Husain - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in54Ind.Cas.432
AppellantAmba Prasad
RespondentMushtaq Husain
Cases ReferredTulsa Kunwar v. Jageshar Prasad
Excerpt:
civil procedure code (act v of 1908), section 102, order xli, rule 23, order xliii, rule 1(a) - small cause of value below rs. 500--appeal--remand, order of--appeal, second, whether lies. - - the fasts are briefly as follows :the plaintiff respondent and the defendant-appellant with effect from the 1st of july 1914, that is the beginning of the year 1322 fasli, were owners of two separate mahals in a village after a perfect partition had been effected......the money in a representative capacity on behalf of the defendant, therefore, article 39 cannot apply. article 40 refers to a suit for profits and does not apply. article 41 refers to a suit by a sharer in joint property, which is not the case here. it is clear that if any suit can lie, it does not fall under any of these articles and is really a suit of a small cause court nature being for a sum below rs. 500. therefore, no second appeal would have lain from a decree of the appellate court and no appeal, there fore, lies from the order of remand. there are decisions on the point in the case of nath prasad v. baij nath 3 a. 66 and the case of qutub husain v. abul hasan 4 a. 134 : a.w.n. (1881) 141. the decision in the case of tulsa kunwar v. jageshar prasad 23 a. 563 : 3 a.l.j. 372 :.....
Judgment:

1. A preliminary objection is raised in this appeal that no second appeal lies. The fasts are briefly as follows : The plaintiff respondent and the defendant-appellant with effect from the 1st of July 1914, that is the beginning of the year 1322 Fasli, were owners of two separate mahals in a village after a perfect partition had been effected. In the year 1322 Fasli the revenue of both these mahals fell into arrears. The plaintiff was forced to pay the revenue not only of his own mahal but also of the defendant's mahal to the extent of Rs. 127. He brought the present suit to recover their sum plus interest from the defendant in the Court of the Munsif, The Munsif dismissed the suit on the ground that no suit lay to recover the amount. The plaintiff appealed. The lower Appellate Court came to the opposite conclusion and remanded the suit for decision on the merits to the first Court. The defendant has come up here on appeal from this order of remand. Under Order XLIII, Rule 1, Clause (4), an order under Rule 23 of Order XLI remanding a ease is applicable where an appeal would lie from the decree of the Appellate Court. It is contended and with force that in the present suit no second appeal would have lain from the decision of the Appellate Court because the suit is one of a small cause nature, the sum to be recovered being below Rs. 500. On behalf of the plaintiff it is urged that Article 39 or 40 of Schedule II of the Small Cause Courts Act would cover the suit, But with this we cannot possibly agree. The plaintiff did not pay the money in a representative capacity on behalf of the defendant, therefore, Article 39 cannot apply. Article 40 refers to a suit for profits and does not apply. Article 41 refers to a suit by a sharer in joint property, which is not the case here. It is clear that if any suit can lie, it does not fall under any of these articles and is really a suit of a Small Cause Court nature being for a sum below Rs. 500. Therefore, no second appeal would have lain from a decree of the Appellate Court and no appeal, there fore, lies from the order of remand. There are decisions on the point in the case of Nath Prasad v. Baij Nath 3 A. 66 and the case of Qutub Husain v. Abul Hasan 4 A. 134 : A.W.N. (1881) 141. The decision in the case of Tulsa Kunwar v. Jageshar Prasad 23 A. 563 : 3 A.L.J. 372 : A.W.N. (1906) 114 contains remarks which apply to the facts of this case. We have been asked to treat this case as a revision, but in view of the fact that the money was admittedly paid and has not been refunded we decline to do so. We dismiss the appeal with costs.


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