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Haridasi Devi Vs. Gadaghar Roy and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in96Ind.Cas.136
AppellantHaridasi Devi
RespondentGadaghar Roy and anr.
Excerpt:
civil procedure code (act v of 1908), order xli, rules 11, 33 - appeal, summary dismissal of--judgment, contents of. - cuming, j.1. this rule has been issued against an order of the learned district judge of nadia summarily dismissing the petitioner's appeal.2. it would appear that the petitioner filed an appeal before the learned district judge against an order on an application under order xxi, rule 90. the learned district judge passed the following order: 'record seen. petitioner's pleader fully heard. i summarily dismiss this appeal'. dr. pal, who has appeared for the petitioner, contends that order xli, rule 11 is governed by order xli, rule 31 and that the learned district judge, in dismissing the appeal under order xli, rule 11, is bound to observe the procedure described in rule 31, that is to say he must write a judgment which will contain the points for decision, the decision thereon, the.....
Judgment:

Cuming, J.

1. This Rule has been issued against an order of the learned District Judge of Nadia summarily dismissing the petitioner's appeal.

2. It would appear that the petitioner filed an appeal before the learned District Judge against an order on an application under Order XXI, Rule 90. The learned District Judge passed the following order: 'Record seen. Petitioner's Pleader fully heard. I summarily dismiss this appeal'. Dr. Pal, who has appeared for the petitioner, contends that Order XLI, Rule 11 is governed by Order XLI, Rule 31 and that the learned District Judge, in dismissing the appeal under Order XLI, Rule 11, is bound to observe the procedure described in Rule 31, that is to say he must write a judgment which will contain the points for decision, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Now, as far as I can see, a Judge in dismissing an appeal under Rule 11 is not relieved of the necessity of writing a judgment as prescribed by Rule 31. It need not necessarily be a very full one but it must satisfy the provisions of Rule 31. Clearly the judgment or order of the learned District Judge, whichever it may be regarded, does not satisfy those requirements.

3. His order, therefore, summarily dismissing the appeal must be set aside and the appeal sent back to him to be disposed of according to law.

4. The petitioner is entitled to the costs of this Rule. Hearing-fee one gold mohur.

Ghose, J.

5. I agree.


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