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Amrito Lal Mukherjee Vs. Ram Chandra Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal60
AppellantAmrito Lal Mukherjee
RespondentRam Chandra Roy
DispositionAppeal dismissed
Cases ReferredGilkinson v. Subramania
Excerpt:
appeal second appeal - order dismissing a suit for default of appearance--decree--civil procedure code (act xiv of 1882) section 2.--remand. - .....judge from an order refusing to set the dismissal aside.3. it is further urged that the district judge improperly interfered with the discretion of the subordinate judge, who refused to grant a further postponement of the case.4. it seems to us that both these pleas are well-founded. the suit was dismissed for default of appearance by the subordinate judge. his order expressly states this. such an order is not a decree and consequently no appeal lay from it to the district judge. jagarnath singh v. budhan (1895) i. l. r. 23 calc. 115 and anwar ali v. jaffer ali (1896) 1. l. r. 23 calc. 827.5. we are also disposed to think that the judge's order is wrong on the merits, inasmuch as he would seem to have improperly interfered with the discretion of the subordinate judge in refusing any.....
Judgment:

Rampini and Pratt, JJ.

1. This is a second appeal from an order of the District Judge of Hooghly setting aside an order of the Subordinate Judge of that district, dismissing a suit for default.

2. It is contended that as the suit was dismissed for default no appeal lay to the District Judge and lie had no jurisdiction to set aside the order of the Subordinate Judge. The plaintiff should have applied to the Subordinate Judge under Section 103 for the restoration of the case to the file and might have appealed to the District Judge from an order refusing to set the dismissal aside.

3. It is further urged that the District Judge improperly interfered with the discretion of the Subordinate Judge, who refused to grant a further postponement of the case.

4. It seems to us that both these pleas are well-founded. The suit was dismissed for default of appearance by the Subordinate Judge. His order expressly states this. Such an order is not a decree and consequently no appeal lay from it to the District Judge. Jagarnath Singh v. Budhan (1895) I. L. R. 23 Calc. 115 and Anwar Ali v. Jaffer Ali (1896) 1. L. R. 23 Calc. 827.

5. We are also disposed to think that the Judge's order is wrong on the merits, inasmuch as he would seem to have improperly interfered with the discretion of the Subordinate Judge in refusing any further adjournment of the case--a discretion which we think was very rightly exercised by the Subordinate Judge.

6. It is, however, unnecessary for us to express any definite opinion on this latter point, as it appears that no second appeal lies to us in the case. The District Judge no doubt acted without jurisdiction, but does a second appeal lie to us to enable us to set aside the District Judge's order without an application under Section 622? The learned pleader maintains that the Judge's order was one of remand under Section 562. But the Judge does not profess to pass his order under Section 562. He allows the appeal, sets aside the dismissal of the suit, and as a necessary consequence, directs the Subordinate Judge to proceed to try it. This is not such an order as can be passed under the remand sections of the Civil Procedure Code. There is no regular appeal from an order such as was passed by the District Judge, as his order is not a decree. It is not a formal expression of an adjudication deciding the suit nor yet deciding the appeal, for there was no appeal lawfully preferred to him. Hence it would seem that no second appeal lies in this case, in which view we are fortified by the decision of the Madras High Court in Gilkinson v. Subramania (1898) I. L. R. 22 Mad. 221. We must accordingly dismiss this appeal with costs.


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