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Aga Mahomed Hamadani Vs. Cohen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal221
AppellantAga Mahomed Hamadani
RespondentCohen and ors.
Cases ReferredMahomed Hossein v. Inodeen I.L.R.
Excerpt:
burma courts act (xvii of 1875), sections 49, 97 - civil procedure code act (xiv of 1882), sections 3, 4, 540--limitation act (xv of 1877), schedule ii, article 156. - .....in the second schedule of the limitation act. that article says that an appeal under the code of civil procedure to a high court, except in certain cases mentioned, must be brought within ninety days from the date of the decree of order appealed against.2. what we have to decide is whether an appeal from the recorder's court of rangoon to this court is an appeal under the code of civil procedure.3. the acts relating to the matter are these: first, the burma courts act (xvii of 1875). that act provides for the organisation and the jurisdiction of the various courts therein mentioned. chapter iv deals with the court of the recorder of rangoon, and section 49 in that chapter says: 'there shall be no appeal from the decree or order of the recorder passed in any original suit or proceeding.....
Judgment:

Wilson and Porter, JJ.

1. We think that this matter is really free from doubt. The question is whether the present appeal, which is an appeal from a decision of the Recorder of Rangoon, was filed within time or out of time; and that depends upon whether it is, or is not, governed by Article 156 in the second schedule of the Limitation Act. That article says that an appeal under the Code of Civil Procedure to a High Court, except in certain cases mentioned, must be brought within ninety days from the date of the decree of order appealed against.

2. What we have to decide is whether an appeal from the Recorder's Court of Rangoon to this Court is an appeal under the Code of Civil Procedure.

3. The Acts relating to the matter are these: First, the Burma Courts Act (XVII of 1875). That Act provides for the organisation and the jurisdiction of the various Courts therein mentioned. Chapter IV deals with the Court of the Recorder of Rangoon, and Section 49 in that chapter says: 'There shall be no appeal from the decree or order of the Recorder passed in any original suit or proceeding where the amount or value of the subject-matter does not exceed three thousand rupees; but where the amount or value of the suit or proceeding in the Recorder's Court exceeds three thousand rupees, and is less than ten thousand rupees, an appeal shall lie to the High Court.' And Section 97 enacts that, 'save as otherwise provided by this Act, the Code of Civil Procedure shall be, and shall, on and from the 15th day of April 1872, be deemed to have been in force throughout British Burma.' The Code of Civil Procedure in force at that time was Act VIII of 1859. Then we turn to the present Procedure Code, which is in the main identical with the Code of 1877. It applies in general terms to the whole of British India, and therefore includes British Burma. Then Section 3 says, that when in any Act reference is made to Act VIII of 1859 (that is, the Procedure Code of 1859), or Act XXIII of 1861, (that is, the amending Act), or the Code of Civil Procedure, or to Act X of 1877, such reference shall, so far as practicable, be read as applying to this Code, or the corresponding part of it. The consequence of that section is that in the Burma Courts Act we must now read Section 97 as incorporating the present Civil Procedure Code.

4. Then Section 4 says: 'Save as provided in the second paragraph of Section 3 (the paragraph which I have just read), nothing herein contained shall be deemed to affect the following enactments,' amongst which is the Burma Courts Act of 1875. The meaning of that kind of saving clause has been very often considered. There is no doubt that the meaning is that, if anything in the Code is found to conflict with anything in the Burma Courts Act, the Code shall not prevail to override the inconsistent provisions in the Burma Courts Act, so far as they are inconsistent.

5. Then comes Section 540, which says: 'Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees or from any part of the decrees of the Courts exercising original jurisdiction to the Courts authorised to hear appeals from the decisions of those Courts.' That is a general provision not conflicting with any enactment in the Burma Courts Act or any other Act by which an appeal was excluded, because that exclusion is expressly saved, and not prescribing for Burma or any other part of British India to what Court any appeal shall lie, but merely laying down the broad rule that where an appeal is not expressly excluded an appeal shall lie to whatever Court under the enactment in force may be the proper Court. That is the state of the enactments on this matter.

6. Now, what is meant by an appeal under the Civil Procedure Code? A particular appeal was given by the Burma Courts Act, and the Burma Courts Act is still the only Act which prescribes to what Court this appeal shall lie. If it had not been given by the Burma Courts Act, then Section 540 of the Civil Procedure Code would have been sufficient to give it, provided that some Court was by some enactment provided as the proper Court to hear the appeal. The procedure in appeals in every respect is governed by the Code of Civil Procedure. The Limitation Act, Schedule II, Article 156, when it speaks of the Civil Procedure Code is, on the face of it, speaking of a Code which relates to procedure, and does not ordinarily deal with substantive rights: and the natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by the Code of Civil Procedure so far as procedure is concerned.

7. It appears to us, therefore, that this appeal is clearly out of time, and must be rejected on that ground. The respondent in entitled to his costs.

8. Since this case was heard our attention has been called to the case of Mahomed Hossein v. Inodeen I.L.R. 10 Cal. 946. That case, however, does not seem to us to have any close bearing upon the present. It was there held that Article 156, Schedule II of the Limitation Act does not apply to proceedings under Section 27 or Section 34 of the Burma Courts Act. Section 27 gives power to the Judicial Commissioner (who is, we presume, in such a case, by reason of Section 2 of the General Clauses Act, a High Court within the meaning of the Limitation Act) under certain circumstances, if in his discretion he thinks fit to do so, to admit a second appeal. Section 34 empowers him, in certain cases, to send for the record of a case and deal with it in his discretion. To apply Article 156 to such cases would be to use it not to restrict any rights given to the parties, but to curtail a discretion given to the Court. And this was the ground of decision.' Moreover, the procedure under those sections is quite foreign to the Civil Procedure Code.


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