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Mathura Nath Ghose Vs. NobIn Chandra Kundu Biswas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal774
AppellantMathura Nath Ghose
RespondentNobIn Chandra Kundu Biswas and anr.
Cases Referred and Mohadev Narsingh v. Ragho Keshav I.L.R.
Excerpt:
second appeal - order refusing to set aside a sale--appeal from an order remanding a case--code of civil procedure (act xiv of 1882), section 588, clauses 16 and 28, and section 562. - .....in cases which are appeals from decrees.7. as for the cases cited, they are all of them cases of remand orders made, not in appeals from orders, but in appeals from original decrees. the objection that was raised in those cases to an appeal from a remand order being entertained was this, that the cases being of the small cause court class, and a second appeal being barred in such cases by section 586, an appeal from a remand order which would be a second appeal, would not lie; and the objection was overruled upon the ground that clause 28, section 588, was not subject to the exceptional provisions of section 586, which was a provision relating to appeals from appellate decrees and not to appeals from orders. whether that view of the law is right or not is a question which we need not.....
Judgment:

Banerjee, J. and Maclean, C.J.

1. This appeal arises out of an application made by the respondent for setting aside the sale of a ganti tenure in execution of a decree for arrears of rent, on the allegation that he holds a subordinate tenure under the ganti tenure. The application purported to be made under Sections 244 and 311 of the Code of Civil Procedure.

2. The Munsif held, and I think rightly held, that Section 244 has no application to a case like the present; and he rejected the application on the ground that the applicant was not entitled to make any such application under Section 311.

3. Against the order of the Munsif the applicant preferred an appeal; and the learned Subordinate Judge in the Court below has set aside the order of the Munsif and directed him to entertain the application and to dispose of the same according to law. Against this order of the Subordinate Judge the auction purchaser has preferred this second appeal.

4. At the hearing of the appeal, a preliminary objection is taken by the learned Counsel for the respondent, that no second appeal lies in this case. The ground upon which the preliminary objection is based is this, that the order passed by the Court of appeal below was an order passed under Section 588, Clause 16, in an appeal from an order of the Munsif refusing to set aside a sale of immoveable property, and being an order of that nature is final, as provided by the last paragraph of Section 588.

5. In answer to this objection the learned Vakil for the appellant urges that this appeal is allowed by Clause 28 of Section 588 of the Code. It is argued that the order appealed from is a remand order by the Lower Appellate Court made under Section 562, and is therefore appealable; and the cases of Kirte Mohaldar v. Ramjan Mohaldar I.L.R. 10 Cal. 523 Collector of Bijnor v. Jafar Ali Khan I.L.R. 3 All. 18 and Mohadev Narsingh v. Ragho Keshav I.L.R. 7 Bom. 292 are relied upon as lending support to this contention.

6. But we are of opinion that the preliminary objection ought to prevail, and that the cases cited for the appellant are distinguishable from the one before us. It is true that orders under Section 562 remanding a case are appealable under Clause 28 of Section 588; but the provisions of the section are subject to the last paragraph of the section, which says that 'orders passed in appeals under this section shall be final.' The effect of this last paragraph of the section is to bar an appeal from an order passed in an appeal allowed under the section; and where a remand order is made in a case which is itself an appeal from an order allowed by this section, the order, even though it be one remanding the case, is, we think, an order that is not appealable. To reconcile Clause 28 of Section 588 with the last paragraph of the Section, we must read Clause 28 as referring only to orders made under Section 562 in cases which are appeals from decrees.

7. As for the cases cited, they are all of them cases of remand orders made, not in appeals from orders, but in appeals from original decrees. The objection that was raised in those cases to an appeal from a remand order being entertained was this, that the cases being of the Small Cause Court class, and a second appeal being barred in such cases by Section 586, an appeal from a remand order which would be a second appeal, would not lie; and the objection was overruled upon the ground that Clause 28, Section 588, was not subject to the exceptional provisions of Section 586, which was a provision relating to appeals from appellate decrees and not to appeals from orders. Whether that view of the law is right or not is a question which we need not consider in this case. It is enough to say that this case is clearly distinguishable from the cases cited.

8. That being so, we think effect ought to be given to the preliminary objection, and this appeal must be dismissed with costs.


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