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Mahomed AfsuruddIn Vs. Beer Chunder Manikya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal471
AppellantMahomed Afsuruddin
RespondentBeer Chunder Manikya and ors.
Cases ReferredDinanath Bose v. Kali Kumar Roy B.L.R. Sup. Vol.
Excerpt:
res judicata - rent-suit--intervenor--civil procedure code (act x of 1877), section 13. - .....and is liable to be set aside by a suit brought in a civil court, yet the decision of the judge passed on appeal against an order passed by the collector under section 77, act x of 1859, is final, because his court is a court of competent jurisdiction and is precisely the same appellate court as that in which an appeal is tried under beng. act viii of 1869. this view appears to us to be erroneous. the decision of the court on appeal against an order passed under section 77, stands in no higher position than the decision of the lower court, whether passed by the collector or by the deputy collector in cases referred to him by the collector. this point has been expressly determined by a full bench of this court in the case of dinanath bose v. kali kumar roy b.l.r. sup. vol. 364; s.c. 5.....
Judgment:

Morris, J.

1. In this case the District Judge holds the view that though a decision of the Collector under Section 77, Act X of 1859, is not final, and is liable to be set aside by a suit brought in a Civil Court, yet the decision of the Judge passed on appeal against an order passed by the Collector under Section 77, Act X of 1859, is final, because his Court is a Court of competent jurisdiction and is precisely the same Appellate Court as that in which an appeal is tried under Beng. Act VIII of 1869. This view appears to us to be erroneous. The decision of the Court on appeal against an order passed under Section 77, stands in no higher position than the decision of the lower Court, whether passed by the Collector or by the Deputy Collector in cases referred to him by the Collector. This point has been expressly determined by a Full Bench of this Court in the case of Dinanath Bose v. Kali Kumar Roy B.L.R. Sup. Vol. 364; s.c. 5 W.E. Act X Rul. 23. The judgment of the Full Bench, delivered by the late Chief Justice, Sir B. Peacock, concludes with these words: 'We think that the words of the Legislature must receive a reasonable construction, and that the right of either party, who may have a legal title to the rent, to establish his title by suit in the Civil Court, is not barred or affected by the decision of the Court of First Instance, or of the Court of appeal, if the suit in the Civil Court is instituted within one year from the date of the decision against him.' In this view, therefore, the decision of the lower Court must be set aside, and the case remanded to that Court to be tried on the merits.


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