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Sarada Sundari Dasya Widow of Sonaton Saha Vs. Gangahari Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in52Ind.Cas.801
AppellantSarada Sundari Dasya Widow of Sonaton Saha
RespondentGangahari Saha and ors.
Cases ReferredGeneral v. Simpson
Excerpt:
appeal - order not appealed against, effect of. - .....on the merits. that was what mr. justice newbould stated he intended to do. that order remained unappealed against. it was just as much as an order of any other court. an order unappealed against mast be given full effect to and this order, being unappealed against, i think, ought to be given full effect to. in that view of the case, the decision of the learned judge, which reversed rightly or wrongly the decision of the lower appellate court and remanded the case for trial on the merits, must be taken to be final. at the same time i think that this case is covered by order xli, rule 33 of the civil procedure code. the observations of lord justice stirling in the case of attorney-general v. simpson (1901) 2 ch. 671 : 70 l.j. ch. 328 85 l.t. 325 : 17 t.l.r. 768 seem to show that an.....
Judgment:

Ernest Fletcher, J.

1. The matter raised in the present appeal is this: The plaintiff brought a suit to recover certain amounts that had been awarded to her by some arbitrators on the footing that her deceased husband had an interest in a business. The case went to trial and the present plaintiff succeeded in the first Court to a very considerable extent, though not to the whole of the claim. Both parties then appealed to the District Judge and the District Judge allowed the appeal of the defendant to a certain extent and disallowed the appeal of the plaintiff. Thereupon the plaintiff appealed to this Court and the case came on for hearing before Mr. Justice Newbould, and what Mr. Justice Newbould did was this: He reversed the decision of the lower Appellate Court and remanded the case for determination on the merits. That was what Mr. Justice Newbould stated he intended to do. That order remained unappealed against. It was just as much as an order of any other Court. An order unappealed against mast be given full effect to and this order, being unappealed against, I think, ought to be given full effect to. In that view of the case, the decision of the learned Judge, which reversed rightly or wrongly the decision of the lower Appellate Court and remanded the case for trial on the merits, must be taken to be final. At the same time I think that this case is covered by Order XLI, Rule 33 of the Civil Procedure Code. The observations of Lord Justice Stirling in the case of Attorney-General v. Simpson (1901) 2 Ch. 671 : 70 L.J. Ch. 328 85 L.T. 325 : 17 T.L.R. 768 seem to show that an order under Order XLI, Rule 33, which is substantially in the same terms as the English Order LVIII, Rule 4, would cover a case like the present. In that view, Mr. Justice Newbould had ample jurisdiction to make the order remanding the whole case for determination on the merits. Whether he had or had not, I think the present appeal must fail and be dismissed with costs.

Walmsley, J.

2. I agree.


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