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Musammat Badrunnissa Bibi and ors. Vs. Lala Shanker Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in49Ind.Cas.687
AppellantMusammat Badrunnissa Bibi and ors.
RespondentLala Shanker Lal
Excerpt:
bengal, n.w.p. and assam civil courts act (xii of 1887), section 21 - civil procedure code (act v of 1908), order xxxiv, rule 6--mortgage suit below rs. 5,000--decree for sum exceeding rs. 5,000--appeal, forum of. - 1. a preliminary objection is taken to the hearing of this appeal. the original suit was a suit on foot of a mortgage and the value of the suit was a sum below rs. 5,000. the usual mortgage decree was made absolute, and eventually it appears that the mortgaged property was sold but proved insufficient to discharge the amount. thereupon an application was made under order xxxiv, rule 6, corresponding with old section 90 of the transfer of property act, for a personal decree which was granted by the subordinate judge. it is against the decree of the subordinate judge so made that the present appeal is filed. the preliminary objection is that the appeal should have been presented to the district judge and not to the high court. section 21 of act xii of 1887 (civil courts act) provides that.....
Judgment:

1. A preliminary objection is taken to the hearing of this appeal. The original suit was a suit on foot of a mortgage and the value of the suit was a sum below Rs. 5,000. The usual mortgage decree was made absolute, and eventually it appears that the mortgaged property was sold but proved insufficient to discharge the amount. Thereupon an application was made under Order XXXIV, Rule 6, corresponding with old Section 90 of the Transfer of Property Act, for a personal decree which was granted by the Subordinate Judge. It is against the decree of the Subordinate Judge so made that the present appeal is filed. The preliminary objection is that the appeal should have been presented to the District Judge and not to the High Court. Section 21 of Act XII of 1887 (Civil Courts Act) provides that an appeal should lie from a decree of the Subordinate Judge to the District Judge where the Value of the original suit was under Rs. 5,000. The appellant seems to have thought that because a fresh decree was granted under Order XXXIV, Rule 6, and the amount of that decree exceeded Rs. 5,000, this Court was the proper Court to which to present the appeal. We think this view was erroneous. We accordingly allow the preliminary objection and direct that the memorandum of appeal be returned to the appellant for presentation in the proper Court. The respondents must have their costs of this appeal, including fees on the higher scale. The memorandum of appeal may be returned as soon as possible.


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