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Chairman of Santipur Municipality Vs. BepIn Behary Sen - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.429
AppellantChairman of Santipur Municipality
RespondentBepIn Behary Sen
Excerpt:
civil procedure code (act xiv of 1882), section 586 - second appeal--suit of the nature cognizable in small cause courts--provincial small cause courts act (ix of 1887), schedule ii, clause 35(j)--illegal distress--payment under pressure of issue of distress warrant. - .....which we have not entered-but on the ground that this is a case coming within section 586 of the civil procedure code. the mere fact that payment was made under pressure of the issue of a distress warrant does not bring the case within article 35 clause (j) of the second schedule to the provincial small cause courts act, for that has regard to a suit for compensation for illegal, improper or excessive distress or attachment. but it is not shown that there was any distress here, so that the suit is not one in tort but for money had and received. for this a suit will lie in the small cause court. therefore, the case comes within section 586 of the civil procedure code.2. we must, therefore, allow the appeal from mr. justice carnduff and dismiss the appeal from the lower appellate court.....
Judgment:

1. We are unable to uphold the judgment of Mr. Justice Carnduff not because we consider it is erroneous on the merits-that is a matter on which we have not entered-but on the ground that this is a case coming within Section 586 of the Civil Procedure Code. The mere fact that payment was made under pressure of the issue of a distress warrant does not bring the case within article 35 Clause (j) of the second schedule to the Provincial Small Cause Courts Act, for that has regard to a suit for compensation for illegal, improper or excessive distress or attachment. But it is not shown that there was any distress here, so that the suit is not one in tort but for money had and received. For this a suit will lie in the Small Cause Court. Therefore, the case comes within Section 586 of the Civil Procedure Code.

2. We must, therefore, allow the appeal from Mr. Justice Carnduff and dismiss the appeal from the lower appellate Court with costs.


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