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Asimaddi Sheikh Vs. Sundari Bibi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal339
AppellantAsimaddi Sheikh
RespondentSundari Bibi
Excerpt:
appeal - second appeal, if it lies from an order passed under order xxi, rules 89 and 92 of the code of civil procedure, 1908--civil procedure code (act v of 1908) sections 2, 49, 104(2); order xxi, rules 89-92; order xliii, rule i(j)--civil procedure code (act xiv of 1882), sections 310a, 312 and 588. - .....no longer exists. the decisions as to the appealability of orders under section rested on the view that orders under that section were in the majority of cases orders determining a question mentioned or referred to in section 244, and therefore-were decrees, from which there would be an appeal and second appeal in appropriate conditions. but this view was dependent on the circumstance that an order under section 310a was not specified in section 588 as an order from which an appeal would lie as an appeal from order. this has been changed under the code of 1908, for though it is provided by section 2(2) that a decree shall be deemed to include the do-termination of any question within section 47 (corresponding with section 244 of the code of 1882) the definition goes on to provide.....
Judgment:

Lawrence H. Jenkins, C.J.

1. This case comes before us by way of appeal from an appellate order, and a preliminary objection has been taken that no appeal lies. The application which has resulted in this appeal arises out of Rule 89 of order XXI of the Civil Procedure Code of 1908. The application under Rule 89 was disallowed, and the Court, as required by Rule 92, made an order confirming the sale. Thereupon, the sale became absolute. Prom such an order an appeal lies under Order XLIII, Rule 1, Clause (J), which provides that an. appeal shall lie from an order under Rule 92 of Order XXI setting aside or refusing to set aside a, sale. Section 104, Sub-section (2) provides that no appeal shall lie from any order passed in appeal under this section, and among the orders that came within the operation of that sub-section is an order made under rules from which an appeal is expressly allowed by rules. An endeavour has been made to escape from this clear provision of the law by the help of decisions under the Code of 1882 in relation to Section 310A. But they are of no assistance. To begin with Section 310A (which corresponds with Rule 89 of Order XXI) did not come within the operation of Section 312, whereas Rule 89 comes within the operation of Rule 92, and so the basis on which the decisions of the Court under the old Code proceeded no longer exists. The decisions as to the appealability of orders under section rested on the view that orders under that section were in the majority of cases orders determining a question mentioned or referred to in Section 244, and therefore-were decrees, from which there would be an appeal and second appeal in appropriate conditions. But this view was dependent on the circumstance that an order under Section 310A was not specified in Section 588 as an order from which an appeal would lie as an appeal from order. This has been changed under the Code of 1908, for though it is provided by Section 2(2) that a decree shall be deemed to include the do-termination of any question within Section 47 (corresponding with Section 244 of the Code of 1882) the definition goes on to provide that it shall not include any adjudication for which an appeal lies as an appeal from an order. But an appeal does now lie as an appeal from order from an order made on an application under Rule 89 of Order XXI.

2. In this view, it is unnecessary to consider the further ground urged against this appeal, for I hold, for the reasons I have stated, that the preliminary objection taken on behalf of the respondents must prevail, and that this appeal must be dismissed with costs.


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