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Shama Dass Vs. Hurbuns NaraIn Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal426
AppellantShama Dass
RespondentHurbuns NaraIn Singh and ors.
Excerpt:
appeal - ex parte decree--order setting aside ex parte decree--civl procedure code (act xiv of 1882), sections 108, 588--notification in 'gazette.' - tottenham, j.1. this is an appeal against an order passed by the lower court setting aside an ex parte decree.2. a preliminary objection was taken on the part of the respondents by mr. gregory, that from such an order no appeal lies under section 588 of the code.3. this question was argued at considerable length; and reserving our judgment upon it, we also heard the appeal on the merits. upon consideration, i am of opinion that mr. gregory is right, and that no appeal lies. when act xiv of 1882 was passed, the wording of section 588, el. 9, was to this effect: 'orders rejecting applications under section 108, or an order to set aside a decree ex parte.' under this clause, apparently, an appeal would lie from the order now before us; but i find that the word 'or' in the clause after.....
Judgment:

Tottenham, J.

1. This is an appeal against an order passed by the lower Court setting aside an ex parte decree.

2. A preliminary objection was taken on the part of the respondents by Mr. Gregory, that from such an order no appeal lies under Section 588 of the Code.

3. This question was argued at considerable length; and reserving our judgment upon it, we also heard the appeal on the merits. Upon consideration, I am of opinion that Mr. Gregory is right, and that no appeal lies. When Act XIV of 1882 was passed, the wording of Section 588, el. 9, was to this effect: 'Orders rejecting applications under Section 108, or an order to set aside a decree ex parte.' Under this clause, apparently, an appeal would lie from the order now before us; but I find that the word 'or' in the clause after Section 108 was by an error placed for the word 'for.' In August 1882, that is, one month after the Act came into force, a corrigendum was published in the Gazette of India, under the signature of the Secretary to the Government in the Legislative Department, by which it was notified that the word 'for' ought to have stood for 'or' in this clause. I think I am justified in taking judicial notice of this notification and acting upon it. It is true that the amending Act (VII of 1888) assumes the original wording of the clause to have been correct, for the Act deliberately provides that the word 'for' shall stand in the place of 'or;' but in the statement of objects and reasons, which accompanied the Bill when framed, it was stated that the amendment of this clause was only intended to correct a typographical error. It is clear to me, therefore, that the Legislature never intended to enact that there should be an appeal from an order setting aside a decree passed ex parte.

4. That being so, I allow the preliminary objection in this case and dismiss the appeal with costs.

Banerjee, J.

5. I also am of the same opinion. I think that the Code of Civil Procedure, even as it stood previous to the passing of the amending Act (VII of 1888), did not allow any appeal from an order granting an application for setting aside an ex parte decree.

6. It was contended that Clause 9 of Section 588, as it stood before the amendment by Act VII of 1888, allowed such an appeal. If that clause stood alone, this contention would have been right. But that is one of a series of clauses; and regard being had to the context, and especially to the language of Clause 8, which immediately precedes, it is clear that the word 'or' in Clause 9 is a misprint for the word 'for.' Orders against which appeals are provided for by Section 588 are invariably referred to in the plural number, and where more descriptions of orders than one are provided for in one and the same clause, they are connected by the word 'and,' and not by the disjunctive particle 'or.' Clause 14 may be referred to in this connection. Referring to the state of the law as it stood before the passing of Act XIV of 1882, we find the same view supported; for Clause 9 of Act XII of 1879, which in other respects agrees word for word with the clause now under consideration, bas the word 'for' in the place of the word 'or,' thereby indicating that the Legislature then allowed appeals only against orders rejecting applications for setting aside ex parte decrees, and not against orders allowing such applications. And going further back, and referring to Act VIII of 1859, we find that the state of the law was the same under that Act. The reason of the thing would show that there is no ground for thinking that the Legislature intended to make any change in the law; for whereas an order rejecting an application for setting aside anex parte decree leaves the party against whom the order is passed without any further remedy except an appeal against that order, an order allowing an application for setting aside an ex parte decree leaves the party against whom the order is made ample remedy-by prosecuting his suit, in which, if he is in the right, he may yet succeed. All this was conceded in argument; and the learned Counsel for the appellant admitted that, if the construction of this clause depended merely upon a construction of Section 588, the preliminary objection would be almost unanswerable. But it was contended that the Legislature, by having recourse to the process of legislation for the purpose of altering the word 'or' into 'for,' has shown that we are no longer at liberty to suppose that it was a misprint for 'for.' I do not see much force in this contention. All that the Legislature did was only to guard against any possibility of error in construing Section 588; and, as my learned brother has shown, a reference to the statement of objects and reasons for making the change in question shows that what the Legislature meant to do was merely to correct a typographical error. If that is their express object, there is no force in the argument that we must presume their object to have been to alter the law and make it by the amending Act something different from what it was originally intended to be.


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