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Sree Sheikh Arip Vs. Brojendra Kishore Roy Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal26,147Ind.Cas.191
AppellantSree Sheikh Arip
RespondentBrojendra Kishore Roy Chowdhury and ors.
Excerpt:
- .....and that is why the matter comes before us in revision. it is extremely doubtful, in my opinion, whether section 115, civil p. c, applies at all to this application. only a short time ago the acting chief justice and myself gave a decision in connexion with a matter which was concerned with another part of section 174 to the effect that it was not a matter subject to revision under section 115. however, that is not a point with regard to which we need express any opinion. it is sufficient to say that having carefully weighed all the arguments put before us by mr. lahiri we are quite satisfied that there is nothing in this case which calls for intervention by this court. the rule is discharged with costs; hearing, fee two gold mohurs.mallik, j.3. i agree.
Judgment:

Costello, J.

1. We see no reason for interfering with the decision of the Court below. The two points argued by Mr. Lahiri and argued, if I may say so, very ably and cogently, are, first of all, that in connexion with a matter in proceedings Under Section 174, Ben. Ten. Act, where there is an appeal Under Sub-section (5) of that section it is not competent to the appellate Court to dispose of the appeal in the manner provided for in Rule 11, Order 41, Civil P. C. Mr. Lahiri has based his argument with regard to that on the fact that there is a proviso to Sub-section (5), Section 174, which requires that before an appeal under that section can be admitted the unsuccessful assailant of a sale must deposit the amount recoverable in the execution proceeding. That procedure was adopted in the present instance and therefore, says Mr. Lahiri, the appellant had a right to insist on the appeal being heard at length. We need not however discuss this point at any length because it seems to us that the matter is concluded by the provisions of Section 143, Sub-section (2), Ben. Ten. Act, which provides in effect that unless specially excluded the Code of Civil Procedure shall apply to suits which are brought under the terms of the Bengal Tenancy Act. It is to be observed that in Section 174 itself certain provisions of the Code of Civil Procedure are excluded; nothing is said as to Order 41 or any of the provisions of the Code dealing with the actual filing of suits or hearing of appeals.

2. The other point taken by Mr. Lahiri is that it was incumbent upon the learned Judge, when dismissing the appeal Under Rule 11, to have given at least a short judgment stating reasons for his action; and, in support of that, some authorities are cited before us. No doubt it would have been more satisfactory if in a case of this kind the learned Judge had said at any rate sufficient to indicate that he had properly applied his mind to the matters in issue between the parties; but we do not think that the authorities go further than to say that where the order summarily dismissing an appeal is itself subject to an appeal then the appellate Court below must give reasons for the judgment in order to enable the second Court of appeal to form some opinion as to whether that judgment is correct or not. In the present case the decision of the District Judge of Mymensingh is not subject to an appeal and that is why the matter comes before us in revision. It is extremely doubtful, in my opinion, whether Section 115, Civil P. C, applies at all to this application. Only a short time ago the Acting Chief Justice and myself gave a decision in connexion with a matter which was concerned with another part of Section 174 to the effect that it was not a matter subject to revision Under Section 115. However, that is not a point with regard to which we need express any opinion. It is sufficient to say that having carefully weighed all the arguments put before us by Mr. Lahiri we are quite satisfied that there is nothing in this case which calls for intervention by this Court. The rule is discharged with costs; hearing, fee two gold mohurs.

Mallik, J.

3. I agree.


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