Skip to content


Sri Bullov Bhattacharji Vs. Baburam Chattopadhya and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal169
AppellantSri Bullov Bhattacharji
RespondentBaburam Chattopadhya and anr.
Cases ReferredDebee Pershad Singh v. Syud Delawar Ali
Excerpt:
execution of decree - second appeal from order passed in execution of decree upon a bond specially registered under section 53 of act xx of 1866--mofussil small cause courts, suit cognizable by--act xx of 1886, sections 53 and 55--code of civil procedure, act xiv of 1882, sections 244 and 586. - .....has taken a preliminary objection to the hearing of this appeal. he has contended that no second appeal lies to this court in this case; and also that no appeal lay in the case at all from the decision of the first court.2. the subject of the appeal is as to the amount of interest to be recovered under a certain decree. the decree is dated the 13th july 1871. it was passed upon a bond specially registered under act xx of 1866, and was made under the provisions of section 53 of that act. the amount of the bond was less than rs. 500. the respondent's pleader has urged that, so far as this second appeal is concerned, the original suit having been one in the nature of a case cognizable by a court of small causes, and the amount involved in it having been less than rs. 500, a second appeal.....
Judgment:

Tottenham, J.

1. The respondent's pleader has taken a preliminary objection to the hearing of this appeal. He has contended that no second appeal lies to this Court in this case; and also that no appeal lay in the case at all from the decision of the first Court.

2. The subject of the appeal is as to the amount of interest to be recovered under a certain decree. The decree is dated the 13th July 1871. It was passed upon a bond specially registered under Act XX of 1866, and was made under the provisions of Section 53 of that Act. The amount of the bond was less than Rs. 500. The respondent's pleader has urged that, so far as this second appeal is concerned, the original suit having been one in the nature of a case cognizable by a Court of Small Causes, and the amount involved in it having been less than Rs. 500, a second appeal to this Court is barred by Section 586 of the Code of Civil Procedure. He has further contended that, by the terms of Section 55 of Act XX of 1866, no appeal at all lay from the order of the first Court. For the appellant it has been urged that the case was not one cognizable by a Court of Small Causes; that nothing in Act XX of 1866 bars an appeal against an order passed in the execution of a decree made under Section 53; and that the order in question passed by the lower Appellate Court, being one of a nature contemplated by Section 244 of the Code, a second appeal would lie.

3. The decisions in this Court have been to the effect that no appeal lies against any order passed even in the execution department connected with a decree made under Section 53 of Act XX of 1866; but a different view of that question has been taken in Bombay and Allahabad. The High Courts in those places have held that, although the decree itself under Section 53 is final, there is no bar to an appeal upon any question raised in the execution department. Upon that point we propose to give no decision in the present instance; for we think that this appeal can be disposed of upon the other ground taken by the respondent's vakil, namely that no second appeal lies to this Court.

4. For the appellant it has been contended that this case cannot be treated as one of a nature cognizable by a Court of Small Causes, because the decree was made under the special provisions of Section 53 of Act XX of 1866. A ruling of this Court in the case of Nilcomul Banerjee v. Mudoosoodun Chowdhry 14 W.R. 478 : 6 B.L.R. 177 was brought to our notice. The head-note is that the Small Cause Court of Calcutta had no jurisdiction to make a decree under Section 53 of the Registration Act; and that is the only authority which the appellant's vakil was able to show in support of his contention, that the present suit is not of a nature cognizable by a Court of Small Causes. It appears to us, however, that this ruling does not govern Small Cause Courts in the mofussil. The particular reasons given by the High Court for that decision do not apply to' Mofussil Courts. We see nothing which would take away from Mofussil Small Cause Courts the jurisdiction to deal with a claim passed upon a bond specially registered under Act XX of 1866. We think that the suit was clearly one of a nature cognizable by a Small Cause Court in the mofussil. It has been ruled also in this Court that Section 586, which bars a second appeal in cases of that nature in which the original suit relates to a sum less than Rs. 500, applies equally to proceedings in execution as to a decree itself. The ruling is to be found in the case of Debee Pershad Singh v. Syud Delawar Ali 12 W.R. 86 and the contention before Us of the appellant's pleader himself, if correct, shows that Section 586 is equally applicable to proceedings in execution and to decrees; for, according to him--and he is probably right--the order passed by the lower Court comes within the purview of Section 244, and is therefore a decree. Section 586 relates to appeals from appellate decrees, not to appeals from orders.

5. The vakil for the appellant further urged that the amount now in dispute is more than Rs. 500. and that, therefore, a second appeal will lie. But the terms of Section 586 do not refer to the amount in dispute at the time the appeal is preferred, but to the amount or value of the subject-matter of the original suit. In this the original suit related to a sum less than Rs. 500. It seems to us, therefore, clear that no second appeal lies.

6. The pleader for the appellant asked us that, should we hold that no second appeal lies, to decide further that no first appeal lay; and that upon that ground the order he complains of should be set aside. But this is not a point which is properly before us at the present time. Should it come before the Court in proper form it will have to be considered.

7. The appeal is dismissed. We make no order as to the costs of this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //