I S BOSE Vs. H N JUDAH

JUDGEMENT

(1.) This is an application for amendment of a decree under Section 152 of the Code of Civil Procedure. It appears that the applicant in the present case filed an application under Section 363 of the Indian Succession Act, for revocation of the letters of administration. This application was contested & ultimately an appeal was filed against the judgment of the Civil Judge, Mohanlalganj, in this Court. This was treated as a first civil appeal against a decree and costs were taxed in accordance with the Rules of the Court.

(2.) Objection has now been taken that the proceedings in this appeal were only in the nature of an appeal from an order and as such costs should not have been taxed on the scale provided for taxation of costs in first appeals from decrees. The Stamp Reporter has referred to a Division Bench decision of this Court reported in Miss Eva Mountstephens v. Mr. Hunter Garnett, ILR 35 All 448 (A) in which a similar question arose and it was held that the proceedings should be treated as a suit and if they are so treated an order passed in such proceedings will be a decree.

(3.) The learned Counsel for the applicant has, however, cited another Division Bench decision of this Court reported in Kanhaiya Lal v. Gendo, ILR 50 All 238 : (AIR 1928 All 51) (B). It appears that the earlier Allahabad case was not cited before the learned Judges who decided this later case and a different view was taken. We have examined the two reported cases carefully, but with great respect to the learned Judges who decided the later case, we find ourselves in agreement with the view taken in the earlier case, ILR 35 All 448 (A).