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Pundit Rakhal Chandra Tewari Nayaratna Vs. Manaranjan Das Auction-purchaser and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.753
AppellantPundit Rakhal Chandra Tewari Nayaratna
RespondentManaranjan Das Auction-purchaser and ors.
Cases ReferredParesh Nath Mallik v. Hara Charan Dey
Excerpt:
civil procedure code (act v of 1908), section 101, order xxi, rule 92 - appeal, second, whether lies from appellate order reversing order of first court under order xxi, rule 92. - .....terms of section-104 10 ind. cas. 801 : 38 c. 622 : 15 c. w. n. 875 : 14 (j. l. j, 300., cede of civil procedure. i think that that objection is well founded. the matter is not res integra. it has been held in the case of raj mohan pal v. gobinda chandra pal 14 ind cas. 53 : 17 c. w. n. 524. and also in the case of bhadreswar goloi v. bishnu charan sen 8 ind. cas. 3 : 17 c. w. n. 525 note. reported in the footnote refers to 17 c. w. n. 524.---ed. of the same case that no second appeal lies to this court under the present code against an order of this nature. against that the learned vakil for the appellant has referred to the decision of this court in the case of paresh nath mallik v. hara charan dey 10 ind. cas. 801 : 38 c. 622 : 15 c. w. n. 875 : 14 (j. l. j. 300. so far from that.....
Judgment:

Fletcher, J.

1. This is an appeal preferred by the judgment-debtor against an order of the learned District Judge of the 24-Pergannahs, dated the 28th January 1916, reversing the decision of the Munsif at Alipur. A preliminary objection has been taken that no second appeal lies to this Court from the order of the learned District Judge having regard to the terms of Section-104 10 Ind. Cas. 801 : 38 C. 622 : 15 C. W. N. 875 : 14 (J. L. J, 300., Cede of Civil Procedure. I think that that objection is well founded. The matter is not res integra. It has been held in the case of Raj Mohan Pal v. Gobinda Chandra Pal 14 Ind Cas. 53 : 17 C. W. N. 524. and also in the case of Bhadreswar Goloi v. Bishnu Charan Sen 8 Ind. Cas. 3 : 17 C. W. N. 525 note. reported in the footnote Refers to 17 C. W. N. 524.---Ed. of the same case that no second appeal lies to this Court under the present Code against an order of this nature. Against that the learned Vakil for the appellant has referred to the decision of this Court in the case of Paresh Nath Mallik v. Hara Charan Dey 10 Ind. Cas. 801 : 38 C. 622 : 15 C. W. N. 875 : 14 (J. L. J. 300. So far from that case being in any way opposed to the case reported as Raj Mohan Pal v. Gebinda Chandra Pal 14 Ind. Cas. 53 : 17 C. W. N. 524 it is quite clear that in the case reported as Paresh Nath Mallik v. Hara Charan Dey 10 Ind. Cas. 801 : 38 C. 622 : 15 C. W. N. 875 : 14 (J. L. J, 300. the sale took place at a time when the provisions of the Code of Civil Procedure of 1882 were applicable and there are no authorities for faying that a second appeal lies under the provisions of the new Code of Civil Procedure in a case of this sort. The old Code did permit a second appeal of this nature, but under the terms of the new Code., it is quite clear that no second appeal lies. I agree in the preliminary objection that the present appeal is incompetent, and must, therefore, fail.

2. The learned Vakil for the appellant has next asked us to treat the memo, of appeal to this Court as an application for revision under the provisions of Section 115, Code of Civil Procedure. That may be done in some cases and the Court may adopt that course in order to prevent a miscarriage of justice. But that course ought not to be adopted as a matter of practice because different considerations arise in dealing with an appeal than with dealing with matters which come within the limited scope of Section 115, Code of Civil Procedure. I have heard nothing in this case which would lead us to the conclusion that this is a case where we can or ought to interfere with the decision of the learned District Judge under the provisions of Section 115. That being so, the present appeal fails and must be dismissed with costs one gold mohur.

Newbould, J.

3. I agree.


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