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Syed Ikhlaq Ali Vs. Lala Budh Sen - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All352; 54Ind.Cas.435
AppellantSyed Ikhlaq Ali
RespondentLala Budh Sen
Excerpt:
u.p. honorary munsifs act (ii of 1896), section 8(2), proviso - civil procedure code (act v of 1908), section 21(4)-- small cause transferred to court of honorary munsif--decree, whether appealable. - - he sought to recover contribution in that he had paid the whole costs of a former suit which bad been decreed against both him and the present appellant ikhlaq ali. 'the law has distinctly laid down that when an honorary munsif acting under the act decides a suit transferred to his court from a court of small causes, he shall not be deemed to be a court of small cause. the result, therefore, is that the revision must fail and is dismissed with costs. 2. the appeal also will fail and is equally dismissed with costs......is a complete answer to this in section 8 of the honorary munsifs act, in the proviso to clause 2 of that section, which runs thus: ' provided that the last paragraph of section 25 of the code of civil procedure shall not be deemed applicable to cases so transferred from courts of small causes. ' the law has distinctly laid down that when an honorary munsif acting under the act decides a suit transferred to his court from a court of small causes, he shall not be deemed to be a court of small cause. his decree, therefore, will be appealable and the subordinate judge had jurisdiction to hear the appeal. the learned district judge's decision, therefore, on the appeal was a correct one, though perhaps not for the reasons given. the result, therefore, is that the revision must fail and is.....
Judgment:

Tudball, J.

1. Second Appeal No. 1549 of 1917 and Revision No. 1549 of 1918, which arise oat of the same matter, are heard and determined by me together. The facts must be briefly stated. The respondent Budh Sen brought a suit for contribution against the opposite party in the Court of Small Causes, that of the Munsif of East Budaun. He sought to recover contribution in that he had paid the whole costs of a former suit which bad been decreed against both him and the present appellant Ikhlaq Ali. That suit was transferred to the Court of the Honorary Munsif under Section 8, Sub-Section 2, of the Honorary Munsifs Act, II of 1896. The Honorary Munsif dismissed the suit. An appeal was preferred and transferred apparently to the Subordinate Judge for decision. The Subordinate Judge on appeal decreed the suit on the 16th February 1916. In execution of that decree a house was sold and purchased by some third party on the 11th of January 1917. When the sale came up for confirmation, the judgment-debtor raised an objection to the confirmation of sale on the ground that the Subordinate Judge had no jurisdiction to hear and decide the appeal, in that the suit was one of a small cause nature and that no appeal would lie : therefore, the decree passed by the Subordinate Judge was a nullity as having been passed (without jurisdiction. He, therefore, asked that the sale should not be confirmed, The Munsif acceded to his request and refused to confirm the sale. An appeal was preferred to the District Judge, who on the 30th of May 1917 set aside the order of the Munsif and directed that the sale be confirmed. Ikhlaq Ali came here on appeal and his appeal is No. 1549 of 1917. A preliminary objection was taken that no second appeal lay to this Court, the suit being a suit (by reason of its value) of a small cause nature. I thereupon allowed the appellant to file a revision against the original decree passed by the Subordinate Judge on appeal, the ground taken being that the Subordinate Judge had no jurisdiction to hear the appeal. The point taken was that because the suit was first instituted in the Court of Small Causes and was transferred thence to the Court of the Honorary Munsif, the Honorary Munsif must be deemed to have decided the suit as a Small Cause Court in view of the last paragraph of Section 24 of the present Civil Procedure Code and Section 25 of the old Civil Procedure Code of 1882. There is a complete answer to this in Section 8 of the Honorary Munsifs Act, in the proviso to Clause 2 of that section, which runs thus: ' provided that the last paragraph of Section 25 of the Code of Civil Procedure shall not be deemed applicable to cases so transferred from Courts of Small Causes. ' The law has distinctly laid down that when an Honorary Munsif acting under the Act decides a suit transferred to his Court from a Court of Small Causes, he shall not be deemed to be a Court of Small Cause. His decree, therefore, will be appealable and the Subordinate Judge had jurisdiction to hear the appeal. The learned District Judge's decision, therefore, on the appeal was a correct one, though perhaps not for the reasons given. The result, therefore, is that the revision must fail and is dismissed with costs.

2. The appeal also will fail and is equally dismissed with costs.


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