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Nishi Kanta Ghose and anr. Vs. Borda Kanta Basu and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1930Cal744,129Ind.Cas.367
AppellantNishi Kanta Ghose and anr.
RespondentBorda Kanta Basu and ors.
Excerpt:
- .....two judges. the schedule includes among matters with which a judge sitting singly is competent to deal applications for revision under section 115, civil p.c., in oase3 up to the value of rs. 1,000. now it is admitted that the value of the suit in which the order complained of is made i3 above the sum i have mentioned. but it is said that inasmuch as the order is concerned with a sum of rs. 343 there can be no objection to my dealing with it. i have come to the conclusion though with some hesitation that the preliminary objection must succeed. it is true that the words used are 'in cases'. but at the same time i do not think that when one talks of an order being made in a case one merely means the order made on an application without regard to the rest of the suit. it is noticeable that.....
Judgment:

Panckridge, J.

1. This is a Rule granted by the Chief Justice calling upon the opposite party to show cause why a certain order should not be set aside or otherwise varied. The order in question concerns certain receivers who were appointed receivers of a joint business during the pendency of Suit No. 47 of 1924 in the Court of the 4th Subordinate Judge at Dacca. By various, orders culminating in an order of 22nd December 1928 the applicants before me were ordered to pay a certain remuneration to an auditor who had bean appointed - the remuneration amounting to Rs. 343-4-9. The receivers then preferred an appeal against this order to the District Judge who dismissed it on the ground that it was not maintainable. Thereupon they applied for the Rule with which I am now dealing, which was granted to them on 28th August last year. The application to this Court was presented out o time but the petitioners say that they had good excuse inasmuch as they were bona fide pursuing their remedy in a Court which it transpired had no jurisdiction and that if the interval between the making of the order complained of and the dismissal of the appeal before the District Judge be deducted, their application to this Court is in time.

2. A preliminary point was taken that, the Rule was issued without jurisdiction inasmuch as it is not a Rule which is competent for a Judge sitting singly on the appellate side of this Court to issue and it is not competent for me sitting in similar circumstances to deal with it. This argument involves a consideration of the Rules of the appellate side of the Court. Rule 1, Chap. 2, provides that:

A Division Court for the hearing of appeals from decrees or orders of the Provincial Civil Courts shall consist of two or more Judges as the Chief Justice may think fit.

3. To that rule there is a proviso which makes it competent for one Judge to hear appeals and applications in all matters specified in the schedule to the rule. It is however provided that a Judge may send any particular case to be disposed of by two Judges. The schedule includes among matters with which a Judge sitting singly is competent to deal applications for revision under Section 115, Civil P.C., in oase3 up to the value of Rs. 1,000. Now it is admitted that the value of the suit in which the order complained of is made i3 above the sum I have mentioned. But it is said that inasmuch as the order is concerned with a sum of Rs. 343 there can be no objection to my dealing with it. I have come to the conclusion though with some hesitation that the preliminary objection must succeed. It is true that the words used are 'in cases'. But at the same time I do not think that when one talks of an order being made in a case one merely means the order made on an application without regard to the rest of the suit. It is noticeable that Section 115 also uses the word 'cases' and not 'suit.' I think the reason for this is that it must have been intended that Section 115 and para. (3) of the schedule to which I have referred contemplated legal proceedings which are not suits in the strict sense, but which are governed by the provisions of the Civil Procedure Code. I think too that note to paragraph 3 of the schedule, namely : 'Every application for revision shall state the value of the suit to which the application relates' can only be explained on the ground that before a Judge sitting single can decide whether he is competent to deal with the matter before him he must have information not only as to the amount at stake in respect of a particular order that is sought to be revised but also ha must have information as to the value of the subject matter of the suit in which that order is made. This being so I come to the conclusion that a Judge sitting singly has no jurisdiction to deal with this order made as it was in a suit admittedly of the value of more than Rs. 1,000. I discharge the rule on that ground with costs. Hearing fee one gold mohur.


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