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Lala Kandha Pershad Vs. Lala Lal Behary Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal872
AppellantLala Kandha Pershad
RespondentLala Lal Behary Lal
Cases ReferredHarakh v. Ram Sarup
Excerpt:
second appeal - suit of the nature cognizable in court of small causes--execution of decree--transfer of decree for execution--civil procedure code (act xiv of 1882), sections 223, 224, 228, 586. - .....of the nature cognizable in courts of small causes' does not depend upon the tribunal in which the suit is brought, and is equally applicable whether the suit be brought in a court of small causes or in any other court. it was contended that this expression only applied to cases where suits are brought in courts other than courts of small causes. the result of this construction would be that there would be no second appeal where the suit was brought in a court other than a small cause court, and there would be a second appeal where it had been brought in a small cause court. this would be anomalous.5. the case comes within the plain words of the section; and in our opinion section 586 in a case of this kind controls section 228. there is express authority on this question, harakh v. ram.....
Judgment:

Trevelyan and Banerjee, JJ.

1. The first question, which we have to determine, is whether a second appeal, that is an appeal to this Court, lies.

2. The suit was brought in a Small Cause Court. The decree was, under the provisions of Section 224 of the Civil Procedure Code, sent for execution to the Court of the first Munsif of Arrah, and certain landed property has been attached by such Court.

3. The judgment-debtor objected to the decree being executed on the ground that the application for execution was barred by the law of limitation. The learned Munsif disallowed that objection. There was an appeal to the Judge, who has upheld the Munsif's decision. A second appeal has been preferred to this Court. The respondent has objected that no second appeal lies. We have to consider such objection. This question depends, in our opinion, entirely upon the construction which should be placed upon Sections 228 and 586 of the Civil Procedure Code. The former section provides that where a decree is sent for execution by the Court which passed it to another Court, the orders of the latter Court shall be subject to the same rules in respect of appeal as if the decree had been passed by itself. Section 586 provides that no second appeal shall lie in any suit of the nature cognizable in Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five hundred rupees.

4. It is quite clear to our minds that the construction of the words a 'suit of the nature cognizable in Courts of Small Causes' does not depend upon the tribunal in which the suit is brought, and is equally applicable whether the suit be brought in a Court of Small Causes or in any other Court. It was contended that this expression only applied to cases where suits are brought in Courts other than Courts of Small Causes. The result of this construction would be that there would be no second appeal where the suit was brought in a Court other than a Small Cause Court, and there would be a second appeal where it had been brought in a Small Cause Court. This would be anomalous.

5. The case comes within the plain words of the section; and in our opinion Section 586 in a case of this kind controls Section 228. There is express authority on this question, Harakh v. Ram Sarup (1890) I.L.R. 12 All. 579. With that authority we agree and hold that no second appeal lies. It is therefore unnecessary to consider the other question in this case. We dismiss the appeal with costs.


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