MURARI LAL Vs. RAMAN LAL

JUDGEMENT

(1.) THIS revision is directed against the dismissal of an appeal by the court below upholding the preliminary objection which was raised by the respondents that there was no validly presented memorandum of appeal before the said court as required by O. XLI R. 1, C.P. C.

(2.) THE brief facts are these. THE predecessor of the plaintiff-respondents filed an application under Section 12 of the U. P. Agriculturists Relief Act, 1934 for the redemption of a usufructuary mortgage. This application was filed against Murari Lal who was the original defendant-applicant in this revision. He died during the pendency of the revision and his legal representatives were brought on record. THE trial court decreed the aforesaid suit initiated by the applicant under S. 12 of the U. P. Agriculturists Relief Act and an appeal was taken out by the defendant-appellant, Murari Lal, to this Court and the same was registered as First Appeal No. 55 of 1945 on 8th Jan., 1945. This appeal was heard by a learned single Judge who allowed the same by his order dated 4th Jan., 1961. A special appeal was filed against the judgment of the learned single Judge and the Division Bench by its judgment dated 6th July, 1965 allowed the same and set aside the judgment of the learned single Judge. It was held that the first appeal which had been filed in this Court by the defendant-appellant was not maintainable as the appeal against the trial court' s judgment and decree under S. 12 of the U. P. Agriculturists Relief Act lay to the court of the District Judge. THE operative part of the Division Bench' s judgment was as follows:- " We, therefore, direct that the record of this case should be sent to the District Judge, Aligarh who shall hear this appeal after giving sufficient notice to the parties. In the circumstances of this case, we direct the parties to bear their own costs of this Court."

(3.) SRI G. P. Bhargava, learned counsel for the applicants in this revision, has raised the following contentions before me. The judgment of the Division Bench in the aforesaid special appeal was binding between the parties and on the court below and in this connection reliance was placed on AIR 1960 SC 941 (Satyadhyan Ghosal v. Smt. Deorajin Debi). The learned counsel said that even if the said judgment was wrong, still, it was not for the District Judge to seek to question the same or not to carry out the direction contained in the said judgment; that in the circumstances of the case, the District Judge was wrong in not allowing the application dated 24th Jan. 1969 and that the said application should have been allowed and the benefit of Section 5 of the Indian Limitation Act should have been extended to the appellant. He further submitted that in a situation like this, even if some mistake was committed by this Court in directly transferring the appeal to the Court of the District Judge, the appellant should not be made to suffer on the ground of the said mistake. The learned counsel also contended that the District Judge was wrong in holding that there was no direction in the judgment of the special appeal directing him to hear the appeal which had been filed in this Court in the first instance. The said interpretation by the District Judge of the Division Bench' s judgment was incorrect. Reliance was placed on the newly added provision contained in sub-sec. (5) of S. 24 C.P.C. which lays down as under: " 24 (5). A suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it." The learned counsel invoked the aid of AIR 1970 SC 1 (Shankar Ram Chandra v. Krishnaji Dattatraya) in support of this contention.