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Elahi Buksh Vs. Marachow and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal825
AppellantElahi Buksh
RespondentMarachow and ors.
Cases ReferredBurkut Hossein v. Majidoonissa
Excerpt:
suit under act viii of 1859 - decree given after repeal of act viii of 1859--appeal--act x of 1877, section 3. - .....of civil procedure came into operation were saved by the 6th section of act i of 1868; and that an appeal allowed by the code of 1859 in such proceedings is not taken away by anything in the code of 1877.5. it was further held in the case of surrendro nath pal chowdhury v. chunder coomer roy (i.l.r., 3 cal., 669)--one of the cases under consideration by the pull bench--that the provisions of chap. xliii of the new code are inapplicable to orders made before 1st october 1877, and do not give an appeal against such orders where an appeal was not allowed under the repealed code of procedure.6. this case is not directly governed by the full bench decision on either point. here we have a suit instituted under act viii of 1859, but decided in the court of first instance after the repeal of.....
Judgment:

Ainslie, J.

1. In this case the suit was instituted when Act VIII of 1859 was in operation, namely, in September 1877, and a decree was passed after that Act was repealed and the new Code of Procedure was in operation, namely, on the 2nd of February 1878. An appeal against that decree was made, and on that appeal coming on to be heard, neither the appellant nor his pleader appeared, and the appeal was dismissed. The Judge who dismissed the appeal stated, when he did so, that he was aware that the appellant's pleader was a lunatic.

2. The appellant afterwards applied to have his appeal restored, but the Judge, giving no reasons, rejected the application. The appellant in this application stated that, having engaged a pleader, he felt secure, and did not think it necessary to appear in person. The order dismissing the appeal in the first instance was made on the 31st of May 1878, and it is stated by the Judge that it was made under Section 556 of Act X of 1877. The application for its restoration was made under Section 558 on the 21st of June 1878. The appellant now appeals from the order rejecting this application, and Section 588, Clause (v), if the new Code of Procedure applies to the case, allows him to appeal. It is contended, however, by the respondents that, as the suit was instituted under the Act of 1859, that Code, and not Act X of 1877, applies to the case; and that as it has been held in the case of Amiruddin v. Jiban Bibi (1 B.L.R., F.B. Rul., 101.,) that an order made under similar circumstances was not, under Section 347 of the Act of 1859, appealable, no appeal now lies from the order of the Judge refusing to re-admit the appeal.

3. In support of this contention the case of Runjit Singh v. Mehrban Koer (I.L.R., 3 Cal, 662; S.C., C.L.R., 391) was cited.

4. It was then held by a Full Bench that proceedings already commenced when the new Code of Civil Procedure came into operation were saved by the 6th section of Act I of 1868; and that an appeal allowed by the Code of 1859 in such proceedings is not taken away by anything in the Code of 1877.

5. It was further held in the case of Surrendro Nath Pal Chowdhury v. Chunder Coomer Roy (I.L.R., 3 Cal., 669)--one of the cases under consideration by the Pull Bench--that the provisions of chap. xliii of the new Code are inapplicable to orders made before 1st October 1877, and do not give an appeal against such orders where an appeal was not allowed under the repealed Code of Procedure.

6. This case is not directly governed by the Full Bench decision on either point. Here we have a suit instituted under Act VIII of 1859, but decided in the Court of first instance after the repeal of that Act. So far it was undoubtedly governed by the Code of 1859; but the appeal was presented after the repeal of that Code; and therefore the provisions of Section 3 of the Code of 1877 by expressly excepting appeals presented before the new Code came into operation, distinctly indicate that the procedure in this appeal is to be governed by the law of procedure in force at the date of presentation.

7. According to this law, an appeal may be dismissed for default under Section 556, and the appellant may apply for its re-admission under Section 558, and by Section 588 (Clause v) he is entitled to an appeal on refusal.

8. Although the Full Bench decided that an appeal allowed by the old Code in proceedings originated while it was in force is not taken away by the repeal thereof, it does not follow that a further appeal may not be allowed under the Code of 1877, if the procedure of the new Code is applicable to such proceedings. It is not in our opinion open to a party to say that by the institution of a suit before 1st October 1877 he has acquired a right to have the proceedings stopped at a certain point, notwithstanding provisions in the new Code for further proceedings in cases governed by it, because it has been held that there is a right to carry proceedings dating back before 1st October 1877, beyond the stage at which they must stop under the Act of 1877. The Courts will, as a rule, grant the fullest enquiry and most complete remedy they can grant. Their action, if limited, must be limited by express words, and whenever a reasonable construction of the law will admit of granting the remedy, it will be granted.

9. This case differs from Burkut Hossein v. Majidoonissa (3 C.L.R., 208). In that case there was an application pending on the 1st of October 1877, which had been pending for some months. If the order made thereon had been made on or before the 30th September, it would have been final under an express provision of Act VIII of 1859. We held that Section 6, Act I of 1868 operated to keep in force rules laid down in Act VIII, so that the order, though of later date than the repeal of that Act, must be taken as made under it; and that, consequently, the appeal allowable by the new Code against similar orders being limited to orders actually made under the provisions of this latter Code was not available.

10. In this case there was nothing pending in the lower Appellate Court on the 1st of October 1877, and the application to the Judge on the 21st June 1878 was after what now stands as the final decree in the suit, namely, the dismissal of the appeal and confirmation of the decree of the first Court on the 31st May preceding.

11. It seems to us that the order of the 21st June 1878 was made under the Code of 1877, and is, therefore, open to appeal. Then unquestionably the order of the Judge was wrong, for he himself gives a good reason why the appeal should have been reinstated, and none against it.

12. The appeal will, therefore, be allowed with costs, and the Judge will be directed to re-admit the appeal.


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