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Tarak Gobinda Choudhury Vs. Tara Gobinda Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal566
AppellantTarak Gobinda Choudhury
RespondentTara Gobinda Choudhury and ors.
Excerpt:
- .....doubt is entertained, a court may draw up a statement of facts on any point of doubt arising and refer it for decision to the high court. this reference arises out of an application under section 93, ben. ten. act, for appointment of a common manager. although it is true, as the learned judge states in his letter of reference, that the civil procedure code applies to proceedings under section 93, ben. ten. act, yet it is clear that the proceedings under that section do no amount to a suit, but are in the nature of an application, as has been pointed out by the learned advocate. in every suit there must be a plaint and there must be a decree, and both these are absent in an application under section 93, ben. ten. act. it is clear therefore that the point which has given difficulty to.....
Judgment:

Lort. Williams, J.

1. This is a reference purporting to be Under Order 46, Rule 1, Civil P. C. That order provides that where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal any question of law arises on which doubt is entertained, a Court may draw up a statement of facts on any point of doubt arising and refer it for decision to the High Court. This reference arises out of an application Under Section 93, Ben. Ten. Act, for appointment of a common manager. Although it is true, as the learned Judge states in his letter of reference, that the Civil Procedure Code applies to proceedings Under Section 93, Ben. Ten. Act, yet it is clear that the proceedings under that section do no amount to a suit, but are in the nature of an application, as has been pointed out by the learned advocate. In every suit there must be a plaint and there must be a decree, and both these are absent in an application Under Section 93, Ben. Ten. Act. It is clear therefore that the point which has given difficulty to the learned Judge has not arisen out of a suit, within the meaning of Order 46, Rule 1 of the Code and consequently, the reference is not competent and must be rejected.

M.C.Ghose, J.

I agree.


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