Skip to content


Badiur Baharnan and ors. Vs. Mokram Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal687
AppellantBadiur Baharnan and ors.
RespondentMokram Ali and ors.
Cases ReferredMian v. Durga Charan
Excerpt:
- .....the appeal against the munsif's order was however dealt with upon its merits and. the first additional subordinate judges of chittagong by his judgment dated 18th september 1931 reversed the order made by the munsif and set aside the ex parte decree in the suit which the munsif had made. the present petitioners as heirs of the plaintiff rahatan bai, in the suit now challenge the order made by the additional subordinate judge on the ground that he had no jurisdiction to hear and determine the appeal from the order of the munsif.2. it is beyond question that no appeal would have lain against the actual decree in the suit. the only question to be determined in the present proceeding is whether or not the order made by the learned munsif refusing the application under order 9, section.....
Judgment:

Costello, J.

1. In this matter one Rahatan Bia instituted a suit in the Court of the Second Sadar Munsif, Chittagong. for the recovery of a sum of Rs. 46-4.0 alleged to be owing by the opposite party in this present proceeding for rent. She obtained an ex parte decree against the defendants on 15th July 1930. Subsequently one of the defendants Mokram Ali who is one of the opposite parties in these proceedings, made an application under Order 9, Rule 13. Civil P. C., for setting aside of that decree on the ground that no summons had been served upon him and that he only became aware of the making of the decree on 3rd August 1930., The learned Munsif who was possessed of the powers referred to in Section 153, sub-para, (b), Ben. Ten. Act, after considering the evidence put before him by the parties, came to the conclusion that the summons in the suit had been duly served and he accordingly on 30th January 1931 rejected the application made under Order 9, Rule 13. Thereupon Mokram Ali respondent 1 in this proceeding, preferred an appeal against that order of the Munsif, when the appeal came on for hearing the respondents to the appeal, that is to say, the present petitioners who are the heirs of Rahatan Bia, took the objection that having regard to the provisions of Section 153, Ben. Ten. Act, no appeal lay against the order of the Munsif rejecting the application for setting aside of the ex parte decree and the restoration of the suit. It was also contended that as the learned Munsif had the special powers mentioned in that section, the subject-matter of the suit being valued at below Rs. 50 any order made by him in relation to the decree which he had made, was final and was not subject to an appeal. The appeal against the Munsif's order was however dealt with upon its merits and. the First Additional Subordinate Judges of Chittagong by his judgment dated 18th September 1931 reversed the order made by the Munsif and set aside the ex parte decree in the suit which the Munsif had made. The present petitioners as heirs of the plaintiff Rahatan Bai, in the suit now challenge the order made by the Additional Subordinate Judge on the ground that he had no jurisdiction to hear and determine the appeal from the order of the Munsif.

2. It is beyond question that no appeal would have lain against the actual decree in the suit. The only question to be determined in the present proceeding is whether or not the order made by the learned Munsif refusing the application under Order 9, Section 13 was an order made in connexion with the suit in such a way as to call into operation the provisions of Section 153, Ben. Ten. Act. There does not seem to be any direct authority upon this point at any rate, as regards orders made in connexion with suits to which Section 153, sub-para. (b) applies. But there is a case Samed Sheikh v. Naba Gopal A.I.R. 1914 Cal. 614 which is sufficiently analogous to constitute some authority in this matter. In that case there was a suit for the recovery of arrears of rent amounting to less than the sum of Rs. 100. The suit was dismissed on its merits. The plaintiff appealed and his appeal was allowed and a decree was made in his favour in the absence of the defendant-respondent to the appeal. The respondent thereupon made an application under Order 41, Rule 21, Civil P. C., to have the appeal reheard in his presence and upon that application being refused he preferred an appeal to this High Court and it was then held that Section 153, Ben. Ten. Act, operated as a bar to the appeal. The Court in giving judgment laid stress upon the actual words of Section 153 itself, the operative part of which reads as follows:

An appeal shall not lie from any decree or order passed, whether in the first instance or on appeal, in any suit instituted by a landlord for the recovery of rent, etc.

3. It follows therefore that the whole question for determination is whether or not an order of the character, I have now to consider, can be said to be an order passed in a suit instituted by a landlord for the recovery of rent. In the cage to which I have just referred Mookorjee, J., and Beachcroft, J., were of opinion that the application to rehear is an application in a suit and they cited in support of that view the case of Acha, Mian v. Durga Charan [1898] 25 Cal. 146 where it was held that an application for a review of an order made in a suit is a proceeding in the suit itself. It seems to me only reasonable to say that if the law denies the right of appeal as against a decree in the suit by reason of the statutory provisions contained in the Bengal Tenancy Act, thereby conferring upon the Court power to deal with the matter in finality, it must be taken that any order relating to the making of the decree is an order made in the suit itself and therefore is subject to the provisions as regards appeals just as much as a decree itself. In that view it follows that although the question of the competency of the appeal was raised before the Additional Subordinate Judge of Chittagong he has not dealt with the point in a manner which is satisfactory. He has given certain reasons which would appear to be wholly irrelevant as regards this particular point.

4. Taking the view that the order made by the learned Munsif dismissing the application under Order 9, Rule 13, was an order in the suit, it follows that there was no right of appeal against that order and the Additional Subordinate Judge of Chittagong had no jurisdiction to hear the purported appeal against the Munsif's order. The judgment and order of the Additional Subordinate Judge must therefore be set aside and the order of the Sadar Munsif, Second Court, restored. This rule is therefore made absolute with costs one gold mohur.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //