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Bijadhur Bhugut Vs. Monohur Bhugut - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal11
AppellantBijadhur Bhugut
RespondentMonohur Bhugut
Excerpt:
appeal - application to file award--order rejecting appeal, matters to be decided upon--application to file an award--court-fee on such application. - .....that the application under section 525 should be rejected upon the ground that the defendant had raised an objection which the court under sections 525 and 526 could not dispose of. it further appears that the lower court, upon the objection of the respondent before us on the 28th march 1881, directed that the plaintiff should pay a court-fee stamp of rs. 328-8-0 to make up the deficiency in the court-fee stamp required for the plaint. the lower court was evidently under the impression that this being a suit the plaintiff was bound to pay the court-fee for a plaint according to the value of the suit as required by the court fees act, but it has evidently overlooked the provision of the law that the application for enforcing an award under section 525 shall be simply numbered and.....
Judgment:

Mitter, J.

1. We are of opinion that in this case there is no appeal, because the proceedings in the lower Court were held under Sections 525 and 526 of the Civil Procedure Code. While rejecting this appeal upon this ground, we are at the same time of opinion that the lower Court has exercised a jurisdiction not vested in it by law, in deciding the question raised in the second issue mentioned in its judgment, viz., whether the defendant did not agree to the terms of the ekrarnama, and they were fraudulently made. It appears from Section 526 that the Court has jurisdiction to adjudicate only upon the grounds of objection mentioned in Sections 520 and 521. Now, the defendant's objection that he did not agree to the terms of the ekrarnama, and that he was imposed upon in being persuaded to put his signature to the particular ekrarnama, which was the foundation of the award in this case, is not one which comes within the purview of Sections 520 and 521. When an objection of this nature was raised it was the duty of the Court to reject the application under Section 525, and refer the parties to a regular suit. No doubt the defendant also raised certain other objections which came within the purview of Sections 520 and 521, but the lower Court has not disposed of them, being of opinion that the mere fact of their having been mentioned in the petition of objection would oust it of its jurisdiction to deal with the case under Sections 525 and 526. Whether this view of the law is corrector not, it is not necessary to determine, but it is quite clear to us that the lower Court was not competent in this case to adjudicate upon the second issue raised before it, [14] viz., 'whether the defendant did not agree to the terms of the ekrarnama and they were fraudulently made.' We, therefore, set aside the decree of the lower Court by which the plaintiff's suit was dismissed, and direct that the application under Section 525 should be rejected upon the ground that the defendant had raised an objection which the Court under Sections 525 and 526 could not dispose of. It further appears that the lower Court, upon the objection of the respondent before us on the 28th March 1881, directed that the plaintiff should pay a Court-fee stamp of Rs. 328-8-0 to make up the deficiency in the Court-fee stamp required for the plaint. The lower Court was evidently under the impression that this being a suit the plaintiff was bound to pay the Court-fee for a plaint according to the value of the suit as required by the Court Fees Act, but it has evidently overlooked the provision of the law that the application for enforcing an award under Section 525 shall be simply numbered and registered as a suit between the parties. It is not considered a suit, but it is to be numbered and registered as a suit. Therefore, under the Court Fees Act, the plaintiff appellant was only bound to pay the Court-fee for an application to the lower Court. The order of the lower Court, dated 28th March 1881, directing the plaintiff to pay Rs. 328-8 Court-fee stamp to make up the deficiency is therefore erroneous, and in making that order the Court acted in the exercise of its jurisdiction illegally. We, therefore, set aside that order also. That order being set aside the plaintiff will be entitled from the lower Court to a certificate for the refund of that stamp. Under the circumstances of this case, we think that in the lower Court each party should bear their own costs. In this Court the respondent is entitled to recover his costs from the appellant.


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