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Ram Chundra Dey Vs. Boloram Dey and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal279
AppellantRam Chundra Dey
RespondentBoloram Dey and anr.
Cases Referred and Sheonath v. Ramnath
Excerpt:
appeal - order declaring the rights of parties to a partition suit in certain specific shares--omission to appeal from appealable order in suit--limitation act (xv of 1877), schedule ii, article 152--civil procedure code (act xiv of 1882), sections 2 and 591. - .....of the second schedule to that act an appeal to the court of the district judge under the code of civil procedure must be filed within thirty days from the date of the decree or order appealed against. decrees and. orders are defined, by section 2 of the civil procedure code, which came into operation on the 1st of june 1882, and it was decided by a full bench of this court, in the case of dulhin golab koer v. radha dulari koer i.l.r. 19 cal. 463 that such an order as that of the munsif of the 28th of february 1893, made in a suit for partition, was a decree and not an order within the meaning of the civil procedure code, as it was an order which decided that the suit must be decreed in favour of the plaintiff. section 591 of the civil procedure code provides that all orders from which.....
Judgment:

W. Comer Petheram, C.J. and Beverley, J.

1. The question we have to consider is, whether in that appeal the plaintiff was at liberty to question the correctness of the order of the 28th of February, or whether an appeal from that order was then barred by time, it not having been filed within thirty days of the 28th February. The case of Moheshur Singh v. Bengal Government 7 Moo. I.A. 283 (302) was decided on the 4th of February 1859, and in that case the Judicial Committee of the Privy Council held that, as there was no law or regulation prevailing in , India which rendered it imperative upon the suitor to appeal from every interlocutory order by which he might conceive himself aggrieved, the Appellate Court might correct any erroneous interlocutory order, although it was not brought under its consideration until the whole cause had been decided and brought before them by appeal for adjudication. In Forbes v. Ameeroovnissa Begum 10 Moo. I.A. 340 (359), decided on the 9th of December 1865, the Committee observed that, as the order then in question was an interlocutory one which did not purport to dispose of the cause, in was within the principle laid down in the case just cited, and that the appellant was not precluded from questioning it on the appeal from the final judgment in the case.

2. The same principle was also affirmed in Sheonath v. Ramnath 10 Moo. I.A. 413 (423) on the 28th of November 1865.

3. The Indian Limitation Act came into operation on the 1st of October 1877, and by Article 152 of the second schedule to that Act an appeal to the Court of the District Judge under the Code of Civil Procedure must be filed within thirty days from the date of the decree or order appealed against. Decrees and. orders are defined, by Section 2 of the Civil Procedure Code, which came into operation on the 1st of June 1882, and it was decided by a Full Bench of this Court, in the case of Dulhin Golab Koer v. Radha Dulari Koer I.L.R. 19 Cal. 463 that such an order as that of the Munsif of the 28th of February 1893, made in a suit for partition, was a decree and not an order within the meaning of the Civil Procedure Code, as it was an order which decided that the suit must be decreed in favour of the plaintiff. Section 591 of the Civil Procedure Code provides that all orders from which no appeal is given by the Code may be objected to at the hearing of the appeal from the final decree, and embodies so much of the principle contained in the cases of Moheshur Singh v. Bengal Government 7 Moo. I.A. 283, Forbes v. Ameeroonnissa Begum 10 Moo. I.A. 340 and Sheonath v. Ramnath 10 Moo. I.A. 413 as the Legislature thought fit to include in the statutory law of this country, but neither the decisions of the Judicial Committee, nor the Legislature, have ever said that where an order is made in a suit after which the suit cannot be dismissed, and which is a decree within the meaning of the Code, either party to the suit can appeal against such decretal order on the hearing of an appeal by him from the final decree, although he has allowed the time given by law for appealing from such decretal order to elapse without doing so. We think that the conclusion at which the District Judge arrived in this case was correct, and the appeal will be dismissed with costs.


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