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Ramjan Mohaldar Vs. Kirte Mohaldar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal523
AppellantRamjan Mohaldar
RespondentKirte Mohaldar and ors.
Excerpt:
appeal from order - suit of the small cause court class--civil procedure code (act xiv of 1882), sections 562, 586, 588, clause (28) and 589. - .....case had to be governed by the first portion of this sentence, it might be contended that, as no appeal lies from the decree in the suit in relation to which the order was made, therefore no appeal will lie from the order; but this first portion of the sentence does not apply. the portion which applies is the second portion, viz.: 'when such order is passed by a court (not being a high court) in the exercise of appellate jurisdiction, then to the high court.' the order in the case now before us was passed by a court in the exercise of its appellate jurisdiction, and therefore, under the express words of this section, the appeal lies to the high court. there may have been an oversight on the part of the legislature; but we think that, upon the interpretation of this express language, we.....
Judgment:

Field, J.

1. A preliminary objection has been taken in this case, viz., that no appeal will lie because the suit is one of the Small Cause Court class being a suit for damages. Section 586 of the Civil Procedure Code provides that 'no second appeal shall lie in any suit of the nature cognizable in Courts of Small Causes, etc.' The present appeal is not a second appeal. It is an appeal from an order falling under Clause 28 of Section 588. Section 589 provides as follows: An appeal from any order specified in Section 588, Clauses (15), (16) and (17), shall lie to the High Court. 'When an appeal from any other order, that is, any other order than the orders specified in Clauses (15), (16) and (17), is allowed by this chapter,' (and it is clear that an appeal under Clause 28 comes within this description), it shall lie to the Court to which an appeal would lie from the decree in the suit in relation to which such order was made, or, when such order is passed by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.'

2. Now if the present case had to be governed by the first portion of this sentence, it might be contended that, as no appeal lies from the decree in the suit in relation to which the order was made, therefore no appeal will lie from the order; but this first portion of the sentence does not apply. The portion which applies is the second portion, viz.: 'When such order is passed by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.' The order in the case now before us was passed by a Court in the exercise of its appellate jurisdiction, and therefore, under the express words of this section, the appeal lies to the High Court. There may have been an oversight on the part of the Legislature; but we think that, upon the interpretation of this express language, we must hold that an appeal in a case of the Small Cause Court class lies to the High Court from an order made under Section 562 remanding a case.

3. The question raised upon the appeal itself has, we think, been properly decided by the Judge in the Court below. This appeal will, therefore, be dismissed with costs.


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