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Peary Lall Daw Vs. Banamali Dey and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.862
AppellantPeary Lall Daw
RespondentBanamali Dey and anr.
Excerpt:
civil procedure code (act v of 1908), section 115 - appeal against order refusing application to revise decree of small cause court. - .....code of civil procedure. an application was made to the learned judge for a rule, calling on the opposite party to show cause why an order of the small cause court should not be set aside. the learned judge refused to grant the rule. it is from that order of refusal that the present appeal is preferred.2. a preliminary objection has been taken that no appeal lies. certainly it does not lie under the code. the only question is whether it lies under the letters patent. but in order that it may lie under the letters patent there must be a judgment.' in my opinion, the order of which complaint is made cannot be regarded as a 'judgment.' therefore, i think the preliminary objection must prevail and this appeal must be dismissed with costs.woodroffe, j.3. i agree.
Judgment:

Lawrence Jenkins, C.J.

1. This is an appeal from an order of. Mr. Justice Stephen under Section 115 of the Code of Civil Procedure. An application was made to the learned Judge for a Rule, calling on the opposite party to show cause why an order of the Small Cause Court should not be set aside. The learned Judge refused to grant the Rule. It is from that order of refusal that the present appeal is preferred.

2. A preliminary objection has been taken that no appeal lies. Certainly it does not lie under the Code. The only question is whether it lies under the Letters Patent. But in order that it may lie under the Letters Patent there must be a judgment.' In my opinion, the order of which complaint is made cannot be regarded as a 'judgment.' Therefore, I think the preliminary objection must prevail and this appeal must be dismissed with costs.

Woodroffe, J.

3. I agree.


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