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Surrut Coomari Dassee and anr. Vs. Radha Mohun Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1895)ILR22Cal784
AppellantSurrut Coomari Dassee and anr.
RespondentRadha Mohun Roy
Cases ReferredPursonchund Golacha v. Kanooram
Excerpt:
small cause court (presidency towns) - new trial, second application for--presidency small cause court act (xv of 1882), section 37--practice--civil procedure code (act xiv of 1882), section 622--act ix of 1850, section 53. - .....new trial in the same suit, and it is quite clear, if mr. garth's contention is correct, that the words 'decree or order' must be read as 'the original decree or order. but it seems to me, i am not at liberty to put any such restrictive meaning upon the words. i think the words 'decree or order' must be read 'the decree or order existing or subsisting in the suit.' the same view was adopted by sir richard couch and mr. justice pontifex in the suit of pursonchund golacha v. kanooram 10 b.l.r. 355 : 19 w.r. 203, which was a reference to the high court by the first and second judges of the small cause court of calcutta. in that case the same question arose under the provisions of section 53 of act ix of 1850. the words of that section are not precisely the same as the words of section 37;.....
Judgment:

Sale, J.

1. The question involved in this rule is as to whether the Judges of the Small Cause Court have power to hear more than one application for a new trial in the same cause. The question arises in this way: The plaintiff, on the 11th August 1894, obtained a decree for a sum of Rs. 258-9-6, and in execution of the decree proceeded to attach certain property. Two claimants then applied to have the attachment set aside. On the 5th December 1894, the claim was dismissed. On the 7th December 1894 an application for a new trial was made by the claimants, and on the 21st January 1895, the Bench hearing the application made a decree in the claim, suit directing the property to be released from the attachment. On the 26th January 1895 the plaintiff applied to have a new trial of the application, which had been granted on the 21st January 1895, under which the property had been released from attachment. The learned Judges, before whom the application was made, thought they had no power to entertain a fresh application, holding, apparently, that, under Section 37 of the Small Cause Court Act, there could only be one application for a new trial in the same suit. The question is whether that view is correct. Section 37 provides: 'Save as is herein especially provided, any decree of the Small Cause Court shall be final and conclusive. But the Court may, on application of either party, made within eight days from the date of the decree or order in any suit (not being a decree passed under Section 522 of the Code of Civil Procedure), order a new trial to beheld, or alter, set aside or reverse the decree or order upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.'

2. Now, in this instance, the learned Judges in making their order on the application for a new trial did not direct a rehearing, but directed the property to be released from attachment. That order, therefore, became the existing decree or order in the claim suit. Mr. Garth contends that it was never intended by Section 37 that there should be successive applications for new trials, and ho points out the inconvenience which might result from any such view. But the question is, whether the Legislature has thought fit, by the words which they have adopted in Section 37, to prevent more than one application being made for a new trial in the same suit, and it is quite clear, if Mr. Garth's contention is correct, that the words 'decree or order' must be read as 'the original decree or order. But it seems to me, I am not at liberty to put any such restrictive meaning upon the words. I think the words 'decree or order' must be read 'the decree or order existing or subsisting in the suit.' The same view was adopted by Sir Richard Couch and Mr. Justice Pontifex in the suit of Pursonchund Golacha v. Kanooram 10 B.L.R. 355 : 19 W.R. 203, which was a reference to the High Court by the first and second Judges of the Small Cause Court of Calcutta. In that case the same question arose under the provisions of Section 53 of Act IX of 1850. The words of that section are not precisely the same as the words of Section 37; but I think that the meaning, both of Section 37 of the present Act, and of Section 53 of the old Act, is substantially the same. As regards the earlier section, Sir Richard Couch says: 'The language of Section 53 of Act IX of 1850 is certainly sufficiently large to allow of an application for a new trial, after a previous trial,' and he proceeds to point out that to allow such new trials after previous new trials, would be in accordance with the practice of the Courts in England. He says: 'There are instances in England in the Common Law Courts and in the Courts of Equity, where more than one trial has been granted, it appearing proper that it should be done. We think the same rule may be applied here. We must assume that the Judges of the Small Cause Court will not exercise this power, unless it appears to them to be right to do so, and they have power to impose such terms as they may think reasonable. '

3. It appears to me it was not the intention of the Legislature, in using the words of Section 37, to change the practice laid down under the previous Act, and if any change is to be made it ought to be so made by clear statutory enactment rather than by the adoption of a construction which would be at variance with the existing rule regulating the practice of the Court. I think, therefore, the Judges of the Small Cause Court have the power to hear the application for a new trial. That is the only point that I decide.

4. The costs of the present application will abide the result of the application for a new trial.


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