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Madon Mohon Poddar and ors. Vs. Purno Chundra Purbot and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal297
AppellantMadon Mohon Poddar and ors.
RespondentPurno Chundra Purbot and ors.
Cases ReferredRattan Krishen v. Poddar Raghoo Nath Shaha I.L.R.
Excerpt:
small cause court, mofussil - act xi of 1865, section 21--new trial--review--limitation act, 1877, article 173. - .....raghoo nath shaha i.l.r. 8 cal. 287.2. there are some cases in which a new trial might be the proper remedy, and where a review would not be allowed by law; and there are others where a new trial could not be had, and the appropriate remedy would be by a review.3. it does not appear from the reference in this case, what the nature of the application was, or whether the plaintiff's proper remedy would be by a new trial or a review; but we think that he should not be bound by the mere form in which the application was made; and that the answer which he ought to give to the reference depends upon whether a new trial or a review would be the proper remedy.4. if a new trial is necessary, then the plaintiff is out of time by reason of the seven days' notice not having been given; but if.....
Judgment:

Richard Garth, C.J.

1. It has already been decided by this Court in several cases that Section 21 of Act XI of 1865 is still in force, notwithstanding the right of review which is given to Small Cause Courts in the mofussil by Section 623 of the Civil Procedure Code--(see reference No. 19 of 1878 from the Small Cause Court of Bhangah, decided by this Bench on 26th August 1879, and reference No. 14 of 1881 from the Munsif of Soodharam, decided on 8th December 1881) Rattan Krishen v. Poddar Raghoo Nath Shaha I.L.R. 8 Cal. 287.

2. There are some cases in which a new trial might be the proper remedy, and where a review would not be allowed by law; and there are others where a new trial could not be had, and the appropriate remedy would be by a review.

3. It does not appear from the reference in this case, what the nature of the application was, or whether the plaintiff's proper remedy would be by a new trial or a review; but we think that he should not be bound by the mere form in which the application was made; and that the answer which he ought to give to the reference depends upon whether a new trial or a review would be the proper remedy.

4. If a new trial is necessary, then the plaintiff is out of time by reason of the seven days' notice not having been given; but if the relief which he seeks may be granted upon a review, he appears to be in ample time.


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