BAIDYA NATH BANERJI Vs. HIMANGSU BALA BOSE

JUDGEMENT

(1.) The petitioner obtained a decree against opposite party No. 1, the wife, and opposite party No. 2, the son of the late Upendra Nath Bose, on the foot of a handnote executed by Upendra Nath Bose. During the pendency of the suit, certain property, to which the present petition relates, was attached under the provisions of Order 38, Civil P. C. A claim to the property was set up by opposite party No. 1 in her personal capacity. The Court, however, refused to go into the matter till the disposal of the suit. The question was raised subsequently in the course of the execution of the decree in Miscellaneous case No. 108 of 1945 in the Court of the Munsif, Giridih. The objection was rejected by the Munsif. In appeal, this order has been reversed by the Judicial Commissioner of Chota Nagpur, and the claim of opposite party No. 1 has been allowed. This petition is directed against the order of the Judicial Commissioner. The petition was filed on 28th November 1946.

(2.) One day previously, the petitioner filed Miscellaneous Appeal No. 350 of 1946 against the same order. This appeal has been dismissed in limine as time barred, by the order of a Division Bench dated 17th March 1917. Mr. Choudhuri, on behalf of the opposite party, has, therefore, contended that the petitioner should not be allowed by way of civil revision to get a remedy, his prayer for which has already been rejected in the miscellaneous appeal. In reply, the contention of Mr. De is that the civil revision petition must be considered as distinct from the miscellaneous appeal. According to him, in this case, his relief lies rightly by way of civil revision and, therefore, he claims, he is not affected by the dismissal of his miscellaneous appeal. In these circumstances, it becomes of some importance to decide whether a civil revision or a Miscellaneous appeal properly lies in this case.

(3.) Opposite party No. 1 was impleaded in the suit as the representative of her deceased husband, whereas, in the claim case, she claimed the property in her personal capacity. According to Mr. De, therefore, her claim properly fell within the provisions of Order 21, Rule 58, Civil P. C., and not under Section 47. It follows that no appeal lay to the Judicial Commissioner, and his order was without jurisdiction, thus, laying itself open to this Court's power in revision. A possible answer to this argument is that, in several cases, it has been held that, where a Subordinate Court wrongly entertains an appeal when it has no jurisdiction to do so, a second appeal against that Court's order lies in this Court Sagar Mull v. Hira Maharaj, 7 P. L. T. 264: (A.I.R. (13) 1926 Pat. 164) and Ram Ratan Prasad v. Banarsi Lal, 9 Pat. 685: (A. I. R. (17) 1930 Pat. 280). As against this, my attention has been drawn to Samhautta Singh v. Bhagwati Singh, 5 P. L. J. 97: (A. I. R. (7) 1920 Pat. 703), in which Sultan Ahmed J. entertained a civil revision in such circumstances and Champa Debi v. Ram Chandra Marwari, 17 P. L. T. 815:(A.I.R. (24) 1937 Pat. 136), in which a Division Bench of this Court held that in such circumstances, the remedy is either by appeal or by civil revision. In the present case, it is not necessary to consider this point, because I think the petition must fail on another ground.