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Surendra Krishna Roy Chowdhury and ors. Vs. Abbas Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1925Cal1237,85Ind.Cas.760
AppellantSurendra Krishna Roy Chowdhury and ors.
RespondentAbbas Ali and ors.
Excerpt:
- .....this allegation of fact is not disputed by the opposite parties. but it is contended on their behalf that the decree of the lower appellate court has now become merged in the decree passed by this court dismissing the appeal and that, therefore, we have no jurisdiction to revise a decree of this court. in my opinion there is no substance in this contention. the appeal do this court was dismissed on the ground that no appeal lay to this court; and the result of that decision is that the decree of the lower appellate court stands good as between the parties and it is the only decree, which is now capable of execution.2. it is next argued on behalf of the opposite parties that the letters patent appeal from the judgment of mr. justice walmsley is now pending in this court and that,.....
Judgment:
JUDGEMENT

Suhrawardy, J.

1. [After stating facts His Lordship continued as follows]:

This Rule was issued on the ground that the Court of appeal below had no jurisdiction to interfere with the decree of the First Court inasmuch as the learned Munsif, who had decided the case originally was empowered under Section 153 (b) of the Bengal Tenancy Act to try rent suits of the value of Rs. 50 or less with final jurisdiction. This allegation of fact is not disputed by the opposite parties. But it is contended on their behalf that the decree of the lower appellate Court has now become merged in the decree passed by this Court dismissing the appeal and that, therefore, we have no jurisdiction to revise a decree of this Court. In my opinion there is no substance in this contention. The appeal do this Court was dismissed on the ground that no appeal lay to this Court; and the result of that decision is that the decree of the lower appellate Court stands good as between the parties and it is the only decree, which is now capable of execution.

2. It is next argued on behalf of the opposite parties that the Letters Patent appeal from the judgment of Mr. Justice Walmsley is now pending in this Court and that, therefore, we have no jurisdiction to interfere with the order of the lower appellate Court under Section 115, Civil P.C. I do nut think that this contention ought to prevail. The judgment) of Mr. Justice Walmsley, so long as it is not set aside, is a judgment of this Court and is binding on us unless we wish to differ from it and refer the case to a Full Bench. That judgment, so far as the present Bench is concerned, if final, it being held therein that no appeal lay to this Court. It is, therefore, open to us to revise the decree at the lower appellate Court under' Section 115, Civil P.C.

3. It being proved to our satisfaction that the Munsif, who tried the suit in the first Court was specially empowered under Section 153 (b) of the Bengal Tenancy Act no appeal lay to the lower appellate Court. That being so, the order passed by the Lower Appellate Court is without jurisdiction and must be set aside.

4. This Rule is accordingly made absolute. The judgment and decree of the lower appellate Court are set aside and those of the Court of first instance restored and affirmed, I make no order as to costs.

Graham, J.

5. It has been conceded on behalf of the opposite parties that the Munsif was specially empowered under Section 153 (b) of the Bengal Tenancy Act. As the suit in question was valued at less than Rs. 50 no appeal lay and the Subordinate Judge must be held to have exercised a jurisdiction not vested in him by law. A case is, therefore, made out for our interference under Section 115, Civil P.C. I concur, therefore, in the order which my learned brother purposes to make.


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