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Lahiri and Co. Vs. Makhan Lal Basak and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal153
AppellantLahiri and Co.
RespondentMakhan Lal Basak and anr.
Excerpt:
- .....question of jurisdiction did not arise in the appellate court and was not discussed. in the circumstances probably no decree could be passed against defendant 2. this is a defect apparent on the face of the record.2. it has been suggested that section 21 of the procedure code applies. but that section applies only where there has been an objection to the place of suing. in this case no objection was raised as to the place of suing in the appellate court and consequently section 21 has no application. objection to the place of suing was raised in the trial court and was allowed in that court and there was no appeal against that finding. this application for a review is accordingly allowed and the case is restored to the file in order that it may be reheard generally.
Judgment:
ORDER

Jack, J.

1. This is an application for a review. By the appellate judgment it was ordered that the case should be sent back to the Court of appeal below to give a decree to the plaintiff as against defendant 2 subject to the rights and obligations subsisting between defendant 1 and defendant 2 which would be determined after giving the parties an opportunity to adduce evidence on the point. It was further ordered that in the event of the whole claim of the plaintiff being found not to be realisable from defendant 2 the balance of the plaintiff's decree would be realised from defendant 1. This was under the provisions of Section 232, Contract Act. It appeals that the trial Court found that it had no jurisdiction to try the suit as against the defendant (No 2) company. The suit was accordingly dismissed as against defendant 2. On appeal by defendant 1. the question of jurisdiction did not arise in the appellate Court and was not discussed. In the circumstances probably no decree could be passed against defendant 2. This is a defect apparent on the face of the record.

2. It has been suggested that Section 21 of the Procedure Code applies. But that section applies only where there has been an objection to the place of suing. In this case no objection was raised as to the place of suing in the appellate Court and consequently Section 21 has no application. Objection to the place of suing was raised in the trial Court and was allowed in that Court and there was no appeal against that finding. This application for a review is accordingly allowed and the case is restored to the file in order that it may be reheard generally.


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