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Gaizaddy and ors. Vs. Soroj Kumar Acherjee Chowdhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in117Ind.Cas.849
AppellantGaizaddy and ors.
RespondentSoroj Kumar Acherjee Chowdhury and ors.
Cases ReferredRaghunath Charan Singh v. Shamo Koeri
Excerpt:
civil procedure code (act v of 1908), order vii, rule 10, order xliii, rule 1(w), order xlvii, rule 7 - appeal from order granting review, scope of--civil procedure code--order returning memorandum of appeal for presentation to proper court, whether appealable--practic--conversion of appeal into revision. - .....this in an appeal against an order of the district judge of faridpur, dated the 26th june, 1925, passed on review setting aside the previous judgment passed by the learned judge on the 18th april, 1925, and the decree following it and directing the memorandum of appeal to be returned for presentation in proper court. the facts are that the plaintiffs-respondents instituted a suit in the court of the subordinate judge for recovery of possession of immoveable property and for mesne profits accrued before the institution of the suit and for those for the period between the institution of the suit and the delivery of possession of the properties. the value of the lands in suit was put at rs. 1,600 and the value of the mesne profits claimed was put tentatively at rs. 500 the total value of.....
Judgment:

Zahhadur Rahim Zahid Suhrawardy, J.

1. This in an appeal against an order of the District Judge of Faridpur, dated the 26th June, 1925, passed on review setting aside the previous judgment passed by the learned Judge on the 18th April, 1925, and the decree following it and directing the memorandum of appeal to be returned for presentation in proper Court. The facts are that the plaintiffs-respondents instituted a suit in the Court of the Subordinate Judge for recovery of possession of immoveable property and for mesne profits accrued before the institution of the suit and for those for the period between the institution of the suit and the delivery of possession of the properties. The value of the lands in suit was put at Rs. 1,600 and the value of the mesne profits claimed was put tentatively at Rs. 500 the total value of the suit being Rs. 2,100. The suit was decreed on compromise on the 9th July, 1915. The plaintiff took out execution of the decree and in Execution Case No. 137 of 1921 applied for ascertainment of mesne profits, against the tenant-defendants who are the appellants in the present case, in the Execution Department. The Executing Court which was the same Court which had passed the decree assessed the mesne profits at Rs. 15,588 with costs. The plaintiffs in another execution case, namely, the Execution Case No. 85 of 1924 took out execution of the decree for mesne profits. The defendants objected to the execution on the ground that the decree for mesne profits passed in execution proceedings was without jurisdiction having regard to the provisions of the Code of 1908 and it should, therefore, be treated as nullity and no execution could be levied on its basis. The objection was overruled. The defendant, thereupon, appealed to the District Judge of Faridpur who by his judgment of the 18th April, 1925, allowed the appeal and held that the decree for mesne profits was a nullity and could not be executed. Thereafter the plaintiffs applied for a review of judgment to the District Judge on the ground that the appeal did not lie to him inasmuch as the decree for mesne profits amounted to Rs. 15,588 and the appeal lay to this Court and that the District Judge had no jurisdiciton to entertain the appeal. This application for review was granted and the present appeal is from this order.

2. A preliminary objection has been taken on the ground that no appeal lies against the order of the District Judge. The right of appeal against an order' passed in review granting the application for review is given particularly by Order XLVlL Rule 7, Civil Procedure Code. Under Order XLVII, Rule 1(w), an order under Rule 4 of Order XLVII, granting an application for review is mentioned as one of the appealable orders. Under Order XLVII, Rule 7 an appeal against an order granting an application for review will lie Only on the grounds mentioned in that section, namely; on the ground that the application was made (a) in contravention of the provisions of Rule 2 of that order which states that an application for review of a decree or order shall be made only to the Judge who passed the decree or order; (b) that the order in review was passed in contravention of the provisions of Rule 4, namely where an application for review is granted without previous notice to the opposite party or on the ground of discovery of new matter or evidence without strict proof of such allegation. It has been held that the right to appeal against an order passed in review is limited by Order XLVII, Rule 7 which controls the general provisions of Order XLVII, Rule 1(w). See the cases of Wahed Ali v. Chand, Mia 52 Ind. Cas. 29 : 30 C.L.J. 250 and Surjya Narain Chowdhury v. Kunja Behary Mal 66 Ind. Cas. 909 : 25 C.W.N. 684. The ground taken in the appeal before us does not come within any of the grounds mentioned in Order XXVII, Rule 7. The learned Vakil for the appellants who has ably argued the case before us has pressed the appeal on the ground that the learned District Judge has taken an erroneous view of the law in holding that the appeal presented by the defendants did not lie to him but to the High Court. That is not a ground which can be said to be one on which an appeal against an order of review can be presented. But it is argued on the authority of the case of Ram Prosad Pramanik v. Sri Charan Mandal 41 Ind. Cas. 276 : 21 C.W.N. 1109 : 27 C.L.J. 594 that an objection to the Court's jurisdiction is one of the grounds upon which a review may be entertained though it is outside the limit placed by Order XLVII, Rule 7. In that case it has been held that an objection as to jurisdiction is an error which is apparent on the face of the record. Though I have my own doubt as to the correctness of the view expressed therein, the decision does not help the appellants in the present case inasmuch as the question under our consideration is whether an appeal lies from the order of the lower Court. The decision would be relevant if there were objection to the competency of the review by the lower Appellate Court in proper proceedings. I am accordingly of opinion that no appeal lies in this case and the present appeal is incompetent.

3. We have been asked to treat the memorandum of appeal as an application under Section 115, Civil Procedure Code, and to hold that the order passed by the lower Court was wrong and should be set aside. I do not think that in the circumstances of this case this course ought to be followed. These circumstances are that the appellants have preferred an appeal which is numbered as Appeal from Order No. 35 of 1924 against the order allowing execution and that appeal has not yet been heard. The appellants, therefore, are in no way prejudiced by the order of the Court below as they will get proper relief in that case if they succeed therein. Then again under Section 115, Civil Procedure Code we are entitled to interfere with the order of the Court below if it has no jurisdiction to try the matter or it has tried it in such an illegal or irregular way as to cause failure of justice. It cannot be said that the learned District Judge of Faridpur had no jurisdiction to review his own judgment. It cannot also be said that in reviewing his own judgment he is guilty of illegality or material irregularity. All that he has done, if he has done anything, is that he committed an error of law. That is not a ground on which we should interfere with his order especially in a case where there has been no failure of justice and the party affected by the order has still his remedy open in another Court. This prayer, therefore, we are unable to accede to.

4. It will not be out of place in this connection to say that the right of appeal against the order of the lower Court may be based on the wording of Order VIII, Rule 10 read with Section 141, Civil Pocedure Code and Order XLIII, Rule 1(a). It may be argued that an order returning a memorandum of appeal is analogous a memorandum an original Court returning a plaint for presentation in proper Court; and as such an order is appealable under Order XLIII, Rule 1(a), an order returning a memorandum of appeal to be presented in proper Court is also appealable on the application of the provisions of Section 141. It has, however, been held in Raghunath Charan Singh v. Shamo Koeri 31 C. 344 that an order returning a memorandum of appeal for presentation in proper Court is not an appealable order though an order by an Appellate Court returning a plaint for presentation in proper Court is appealable by virtue of the provisions of Section 57 read with Section 582 of the Code of 1883. I entirely agree with the view expressed in that case and I do not think that the application of the provisions of Section 647 of the old Code or Section 141 of the new Code gives a right of appeal against an order returning a memorandum of appeal for presentation in proper Appellate Court.

5. The result is that the appeal fails and is dismissed with costs--five gold mohurs.

Graham, J.

6. I agree that there is no appeal. An appeal lies from an order granting an application for review but is limited to the cases mentioned in Order XLVII, Rule 7(1), Civil Pocedure Code. None of the grounds mentioned therein exists here. The appeal is, therefore, incompetent and must be dismissed. I agree also that in view of the fact that the appellants will have their remedy in the appeal which they have filed against the order of the Subordinate Judge, we ought not to interfere in the exercise of our revisional jurisdiction.


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