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Debendra Nath Sadhu Khan Vs. Rai Ramprotap Chamaria - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal812
AppellantDebendra Nath Sadhu Khan
RespondentRai Ramprotap Chamaria
Excerpt:
- .....on 30th september 1928 the plaintiff in that suit obtained delivery of possession execution of the decree. an appeal against that decree was filed and the appeal was decreed on 12th august 1932, the plaintiff's suit being dismissed. a second appeal being second appeal no. 1943 of 1932 was filed which was dismissed on 6th march 1935. in the meantime on 26th april 1933 the petitioner applied under section 144 for recovery of possession of the property from which he had been dispossessed. he made no application at that time for mesne profits and no order for mesne profits was passed but an order for possession was passed and symbolical possession was delivered on 30th april 1933. on 24th august 1935 the petitioner applied for assessment of mesne profits. objection was taken on the ground.....
Judgment:

Lodge, J.

1. This rule was issued on the opposite party to show cause why an order passed by the Munsif, 2nd Court, Howrah on an application under Section 144, Civil P. C., should not be set aside. The material facts are as follows: The petitioner was defendant in Title Suit No. 57 of 1927 in the Court of the 2nd Munsif at Howrah. The suit was decreed in favour of the plaintiff on 8th September 1928 and on 30th September 1928 the plaintiff in that suit obtained delivery of possession execution of the decree. An appeal against that decree was filed and the appeal was decreed on 12th August 1932, the plaintiff's suit being dismissed. A Second Appeal being second appeal No. 1943 of 1932 was filed which was dismissed on 6th March 1935. In the meantime on 26th April 1933 the petitioner applied under Section 144 for recovery of possession of the property from which he had been dispossessed. He made no application at that time for mesne profits and no order for mesne profits was passed but an order for possession was passed and symbolical possession was delivered on 30th April 1933. On 24th August 1935 the petitioner applied for assessment of mesne profits. Objection was taken on the ground that the application was barred by limitation. The learned Munsif came to the conclusion that the application was barred by limitation and dismissed the same with costs. Against that order the present rule has been issued. A preliminary objection has been taken that as the order is an appealable order this Court has no justification for interference under Section 115, Civil P. C. Under Section 2, Clause 2, Civil P. C., a decree shall be deemed to include a determination of any question within Section 144, Civil P. C.

2. It is argued that by the order of the learned Munsif a question under Section 144 has been determined and therefore the order is a decree and therefore appealable. My attention has been drawn to a note at p. 421 of Sir Dinshaw Mulla's Commentary on the Code of Civil Procedure, Edn. 10, 1934 in which it is stated that a decision that an application under this section is time-barred is a decision on a question collateral to the question of restitution and hence it is not a decree and not appealable as such. Relying on that the learned advocate for the petitioner has argued that the order is not appealable, and consequently the application for revision would be entertainable. In my opinion the preliminary objection must be upheld. I am unable to understand how it can be argued that a rejection of a prayer for restitution under Section 144 on the ground of limitation does not determine the question under Section 144, Civil P. C. In my opinion by rejection on the ground of limitation such a question was determined and the order was therefore a decree which is appeal-. able. In this view of the case the Court has no jurisdiction to interfere under Section 115, Civil P. C. Under the circumstances I order that the rule be discharged but I make no order as to costs. Let the certified copies of the orders of the Courts below filed in this Court be returned to the learned Advocate for the petitioner.


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