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Sheikh Muhammad Hashim Vs. Ram Sahai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All104; 54Ind.Cas.450
AppellantSheikh Muhammad Hashim
RespondentRam Sahai and ors.
Excerpt:
civil procedure code (act v of 1908), sections 109, 110 - suit, value of, in excess of rs. 10,000--appeal, value of, below rs. 10,000--appeal to his majesty in council--leave, whether can be granted--misjoinder, whether question of law justifying appeal to privy council. - .....this case involves directly or indirectly some claim or question to or respecting property of the value of upwards of rs. 10,000, as mentioned in the second clause of the section. we do not think that the case falls under that clause 2 of section 110, the appeal does not involve any question. regarding property of the value of rs. 10,000 or upwards. the sum of rs. 3,800, which the appellant seeks to be deducted put of the amount declared by the court of first instance to be due upon the mortgages, consisted of a principal sum of rs. 1,125 which was alleged to have been paid to the mortgagee and two other sums in regard to which it was urged that the mortgage was without legal necessity. that was not a question affecting directly or indirectly property of the value of rs. 10,000 and.....
Judgment:

1. This is an application for leave to appeal to His Majesty in Council. The suit was one for foreclosure of two mortgages, under which a sum of Rs. 14,493 was alleged to be due to the plaintiffs. The defendant, who now seeks to appeal to His Majesty in Council, is the purchaser of a portion of the mortgaged property and he contested the claim. The Court of first instance decreed the claim. The present applicant preferred an appeal to this Court and in that appeal he raised the question of his liability in respect of Rs. 3,800 out of the total amount held by the Court below to be due under the two mortgages. In this Court he omitted to implead as respondent one of the persons who was a plaintiff in the suit. On the ground of this omission the learned Judges who heard the appeal in this Court dismissed the appeal. The appellant now applies for leave to appeal to His Majesty in Council against the decree dismissing his appeal. The value of the subject-matter of the suit was undoubtedly upwards of Rs. 10,000, but the value of the proposed appeal is only Rs. 3,800. Therefore, the case does not come within the purview of the first paragraph of Section 110. It is, however, urged that the decree or final order in this case involves directly or indirectly some claim or question to or respecting property of the value of upwards of Rs. 10,000, as mentioned in the second Clause of the section. We do not think that the case falls under that Clause 2 of Section 110, The appeal does not involve any question. regarding property of the value of Rs. 10,000 or upwards. The sum of Rs. 3,800, which the appellant seeks to be deducted put of the amount declared by the Court of first instance to be due upon the mortgages, consisted of a principal sum of Rs. 1,125 which was alleged to have been paid to the mortgagee and two other sums in regard to which it was urged that the mortgage was without legal necessity. That was not a question affecting directly or indirectly property of the value of Rs. 10,000 and upwards. The first ground upon which the applicant contends that the case fulfils the requirements of Section 110 is in our opinion untenable. It was next contended that the case was otherwise a fit one for appeal to His Majesty in Council and that a question of law of general importance was involved in the appeal. We do not agree with this contention also. The question of law which is raised by the applicant is whether the omission to implead in the appeal one of the plaintiffs was fatal to the appeal. It is said that that plaintiff was represented by the manager of the family to which he belonged and that, therefore, the omission of his name from the array of respondents did not affect the array of parties in the appeal.

2. This question does not appear to have been raised before the Bench which heard the appeal, and we do not find from the record any suggestion that any of the other respondents was the head and manager of the family to which the minor plaintiff Bansidhar (who was not made a respondent to the appeal) was belonged. Under the circumstances, we think that this is not a case which we can certify to be otherwise a fit one for appeal to His Majesty in Council. We, therefore, reject the application with costs including fees on the higher scale.


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