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Ramesh Chandra Sirkar Vs. Mohim Chandra Guha Der Barua - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal604,68Ind.Cas.600
AppellantRamesh Chandra Sirkar
RespondentMohim Chandra Guha Der Barua
Cases ReferredBunwari Lall v. Chowdhry Drup Nath Singh
Excerpt:
costs - question of principle--second appeal. - .....to be appointed and further directing that the costs of the application would be borne by the decree holder. ther, on the 4th of may 1918, after the commissioner had delivered possession, an order was passed on, the following terms: 'case disposed of with costs to the decree-holder,' against this order an application for review was made which was disposed of by order no. 25, dated the 7th of september 1918. by that order, another munsif who succeeded the one who had passed the former orders held that order no. 16, dated the 4th of may 1918, above referred to, had been passed through oversight. he granted the review and directed that the portion of the said order no. 16 dated the 4th may 1918, relating to costs should stand cancelled. against this order, an appeal was preferred to.....
Judgment:

1. The facts necessary for the disposal of this appeal are as follows: The appeal arises cut of orders passed in execution proceedings. On the 23rd of February 1918 the Munsif before whom the application was pending passed an order directing a Commissioner to be appointed and further directing that the costs of the application would be borne by the decree holder. Ther, on the 4th of May 1918, after the Commissioner had delivered possession, an order was passed on, the following terms: 'case disposed of with costs to the decree-holder,' Against this order an application for review was made which was disposed of by Order No. 25, dated the 7th of September 1918. By that order, another Munsif who succeeded the one who had passed the former orders held that Order No. 16, dated the 4th of May 1918, above referred to, had been passed through oversight. He granted the review and directed that the portion of the said Order No. 16 dated the 4th May 1918, relating to costs should stand cancelled. Against this order, an appeal was preferred to the Subordinate*Judge. The Subordinate Judge treated it as an appeal against an order disallowing costs to the decree-holder and held on the merits that the decree-holder was entitled to his costs. He accordingly decreed the appeal and directed that the order disallowing costs should be reversed and the decree holder should get the costs amounting to Rs. 60.

2. The first question that has to be considered is whether a second appeal lies to this Court. The first contention is that the appeal to the lower Appellate Court was an appeal against an order granting an application for re view and that, consequently, under Order XLIII, Rule 1, Clause (w), Civil Procedure Code, an appeal lay to Subordinate Judge, 'bat under Section 104 of the Code, no appeal lay from that appellate order. But the Subordinate Judge who heard the appeal did not deal with it as an appeal from an order passed on review but as an appeal from an order made after the review was granted. The order of the Munsif of the 7th of September 1918 really consists of two separate orders. He first grants a review of Order No. 16 dated the 4th May 1918 and then in reviewing that order he restores the Order No. 6 dated the 23rd of February, 1918. The second of these orders must be held to have been passed under Section 47 of the Code and was, therefore, appealable as a decree. It is contended that the order must be held to have been passed under Section 35 and not under Section 47. Section 35 gives directions as to the ordering of costs, but we think that the award of costs depends finally on Section 47 and that the provisions of Section 35 are supplementary. It has been held b this Court that when the question is one of prinicple, as in the present case, a second appeal lies to the High Court on the question of costs only; Bunwari Lall v. Chowdhry Drup Nath Singh 12 C. 179 : 6 Ind. Dec. (N. S.) 122, and we accordingly held that this appeal is competent.

3. On the merits, we think that the appeal mast succeed. The learned Subordinate Judge in dealing with the matter has gone into the question not as to the correctness of the order appealed against but as to the correctness of the Original Order No. 6 which was passed on the 23rd of February 1918. As we read the order appealed form, the Munsif held that that order, No. 16 dated the 4th of May 1918, was passed by indavertence, and there, we think, he was right, Had the Munsif at the time of passing this order intended to override his previous order, he would have certainly referred to it and given his reasons for so doing. He would not have passed this order in this form unlees his previous order had been overlooked. Once the Order No. 16 dated the 4th of May 1918 was get aside, the question as to costs was a matter of ret judicata which had been decided by Order No. 6 and as long as that order stood, the Mnnsif was bound to give effect to it and refuse the decree-holder his casts in accordance with that order. When the ease came up to the Subordinate Judge on appeal, that Order No. 6 dated the 23rd of February 1918 was still in force and until that was set aside, the decree-holder could not re over his costs. We accordingly hold that the order of the lower Appellate Court was wrong. We decree this appeal, set aside the order the of lower Appellate Court and restore that of the Court of first instance. The appellant will get his costs in this Court and in the lower Appellate Court. In this Court we assess the hearing-fee at one gold mohur.


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