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Monmohini Dasi, Widow of Golap Chand Saha Vs. LakhinaraIn Chandra and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal116
AppellantMonmohini Dasi, Widow of Golap Chand Saha
RespondentLakhinaraIn Chandra and ors.
Cases ReferredShyama Charan Mitter v. Debendra Nath Muherjee
Excerpt:
second appeal - bengal tenancy act (viii of 1886), section 153--landlord and tenant--suit for rent, order in--order setting aside a sale--rent-decree valued at lees than rs. 100--execution of decree--civil procedure code (act xiv of 1882), sections 244, 588 (16). - .....the hearing of this appeal, namely, that the order passed by the district judge setting aside the sale was passed under section 588, clause (16), of the code of civil procedure, and that, therefore, no second appeal lies to this court. but the learned pleader for the appellant replies that in this case the sale was set aside on the ground of fraud, and that therefore the order of the district judge was not passed under section 588, clause (16), code of civil procedure, but under section 244, code of civil procedure; and that therefore a second appeal does lie to this court. we think that this contention of the pleader for the appellant is correct, as, on examining the application for the setting aside of the sale, we see that a complaint of fraud was made in it.4. but a further.....
Judgment:

1. This is an appeal against an order of the District Judge of Burdwan, dated the 21st of November 1899.

2. The order is one setting aside a sale held in execution of a decree for arrears for a sum of Rs. 15.

3. A preliminary objection has been taken to the hearing of this appeal, namely, that the order passed by the District Judge setting aside the sale was passed under Section 588, Clause (16), of the Code of Civil Procedure, and that, therefore, no second appeal lies to this Court. But the learned pleader for the appellant replies that in this case the sale was set aside on the ground of fraud, and that therefore the order of the District Judge was not passed under Section 588, Clause (16), Code of Civil Procedure, but under Section 244, Code of Civil Procedure; and that therefore a second appeal does lie to this Court. We think that this contention of the pleader for the appellant is correct, as, on examining the application for the setting aside of the sale, we see that a complaint of fraud was made in it.

4. But a further preliminary objection is taken by the pleader for the respondent, namely, that if the order of the District Judge was one under Section 244, Code of Civil Procedure, then it was an order passed in a suit for arrears of rent for a sum of less than Rs. 100, and as none of the questions referred to in the proviso to Section 153 of the Bengal Tenancy Act were decided, no second appeal lies to this Court. And in support of this contention, the pleader for the respondent cites the case of Shyama Charan Mitter v. Debendra Nath Mukerjee (1900) I.L.R. 27 Cal. 484. We think that this contention must prevail. It is clear that the decree in execution of which the order appealed against was passed, was a decree for less than Rs. 100; and as it was an ex parte decree, none of the questions referred to in the proviso to Section 153 of the Bengal Tenancy Act can possibly have been decided.

5. The pleader for the appellant says that the order was one for the setting aside of a sale, and that therefore it does not relate to the execution of a decree but rather to the non-execution of a decree. We cannot accept this view of the matter. An order setting aside a sale is as much an order relating to the execution of a decree as an order confirming a sale. But however that may be, we have not to interpret the provisions of Clause (c) of Section 244 of the Code of Civil Procedure but the provisions of Section 153 of the Bengal Tenancy Act. The question in this case is whether the order Appealed against is 'an order passed in a suit instituted by a landlord for the recovery of rent.' That question seems to be concluded by the view of the learned Judges who decided the case of Shyama Charan Mitter v. Debendra Nath Muherjee (1900) I.L.R. 27 Cal. 484 in which it is said that the word ' suit ' in Section 153 of the Bengal Tenanay Act was not used ' in its narrow sense as being terminated by the decree made by the First Court,' but ' in its broad sense, as including not only the stages of a suit down to its termination by the decree of the First Court, but also its appellate stage, and also proceedings in execution of the decree made in the suit,' That being so, and as we see no reason to dissent from this view, we must hold that no second appeal lies.

6. The appeal is dismissed with costs.


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