NAGARAM SENIMAL Vs. BHOOLIRAM

JUDGEMENT

(1.) THIS mis appeal has been preferred by the plaintiff whose appeal was ordered by the Second Addl. District Judge, Morena to be returned for presentation to the proper Court.

(2.) A preliminary objection was raised by the respondent to the maintainability of this appeal on the ground that no provision has been made in the Code of Civil Procedure for an appeal against an order returning the appeal for presentation to proper Court. The objection appears to be well -founded and the learned counsel for the appellant himself conceded that his memorandum of appeal may be treated as a petition in revision. Since refusal to entertain an appeal amounts to failure by the Court to exercise jurisdiction vested in it by law, a revision would, in my opinion, lie against an order whereby the appellate Court wrongly returned the appeal for presentation to another Court. Civil Misc. Appeal No. 38 of 1959 shall, therefore, be struck off from the register of appeals and the memorandum of appeal be admitted as a Civil Revision.

(3.) AN appeal was preferred on 22 -9 -1955 by the plaintiff in the Court of the District Judge, Morena against the judgment and decree passed by the trial Court. The appellate Court by its order dated 3 -3 -1959 held that the subject -matter of the suit as originally framed being in excess of Rs.5,000 the appeal would according to S. 23 (1) of the Madhya Bharat Civil Courts Act lie to the High Court. Section 23 (1) of the Madhya Bharat Civil Courts Act (No. 43 of 1949) runs as under: -