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Nalinakshya Ghosal Vs. Mafakshar HossaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal177
AppellantNalinakshya Ghosal
RespondentMafakshar HossaIn and ors.
Cases Referred and Muhammed Sulaiman Khan v. Fatima
Excerpt:
appeal--amendment of decree--order amending a decree not in conformity with the judgment--appeal from such an order--decree--review of judgment--civil procedure code (act xiv of 1882), sections 206, 588, 622, 624. - .....of his appeal the plaintiff now prefers this second appeal.3. we are of opinion that no second appeal lies to us against an order under section 206. an order under section 206 is not a decree. no provision for an appeal from such an order is made in section 588. hence, it would seem that no appeal lay to the subordinate judge and no second appeal lies to us. the plaintiff's remedy, if any, would seem to be by an application under section 622.4. the learned pleader for the appellant, however, cites the case of kali prosunno basu v. lal mohun guha (1897) i.l.r. 25 cal. 258 and contends that it is therein decided that an order amending a decree is the same thing as a review of judgment. this does not appear to us to have been laid down in that judgment. the learned judges who decided.....
Judgment:

Rampini, J.

1. This is an appeal against the decision of the Subordinate Judge of Burdwan, dated the 7th September 1898. This decision disallows an appeal to him against an order of the Munsif of Kalna, dated 7th February 1898 under Section 206 of the Code of Civil Procedure amending a decree of the Additional Munsif of Kalna, dated the 17th September 1891, which, in his opinion, was not in conformity with the judgment. The Subordinate Judge ismissed the appeal preferred to him on the ground that the Munsif's order amending the decree was right.

2. Against this dismissal of his appeal the plaintiff now prefers this second appeal.

3. We are of opinion that no second appeal lies to us against an order under Section 206. An order under Section 206 is not a decree. No provision for an appeal from such an order is made in Section 588. Hence, it would seem that no appeal lay to the Subordinate Judge and no second appeal lies to us. The plaintiff's remedy, if any, would seem to be by an application under Section 622.

4. The learned pleader for the appellant, however, cites the case of Kali Prosunno Basu v. Lal Mohun Guha (1897) I.L.R. 25 Cal. 258 and contends that it is therein decided that an order amending a decree is the same thing as a review of judgment. This does not appear to us to have been laid down in that judgment. The learned Judges who decided that case held that a certain order might be treated as a review of judgment within the meaning of Article 179 of the Limitation Act, so that a decree-holder might execute his decree within three years of the date of its amendment. That appears to be all that was decided in that case.

5. On the other hand in Joykishen Mookerjee v. Ataoor Rohoman (1880) I.L.R. 6 Cal. 22 a clear distinction appears to be drawn between an order under Section 206 and a review of judgment. In Surta v. Ganga (1885) I.L.R. 7 All. 875 it was expressly held that no appeal lies from an order under Section 206. In Abdul Hayia Khan v. Chunia Kuar (1886) I.L.R. 8 All. 377 and Muhammed Sulaiman Khan v. Fatima (1889) I.L.R. 11 All. 314 appeals were allowed, because the orders appealed against were orders passed in execution and were therefore orders passed under Section 244 and appealable. In both these oases it appears to be implied that there is no appeal against an order under Section 206.

6. In this case there is this further reason for holding that the order of the Munsif was not a review of judgment, that the Munsif who amended the decree was not the Munsif who passed the original decree which was subsequently amended, and there does not seem to have been any clerical error apparent on the face of the decree so as to make the second Munsif competent to review his predecssor's decree under Section 624, Code of Civil Procedure.

7. We must therefore dismiss this appeal with costs, and this order will govern the second appeal, No. 2550 of 1898, which is of a similar character.


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