AZIZI Vs. MOHD MATHANJI

JUDGEMENT

(1.) MST . Azizi has filed this miscellaneous appeal against the order of remand passed by the District Judge Baramulla dated 9 -7 -1974. A preliminary objection has been raised that the appeal is not competent.

(2.) MR . ST. Hussain appearing for the appellant has met this objection by enunciating the view that the order of remand has been passed by the District Judge in exercise of his inherent powers under section 151 Cr. P.C. and therefore is appeal able under Order 43 Rule 1 C.P.C. In support of his contention he has relied upon the observations made in A.I.R. 1933 Calcutta 779. That was a case where restitution had been ordered by the trial court not under section 144 of the Civil Procedure Code but in exercise of its inherent powers under section 151 C.P.C. An appeal was taken against the order of restitution. An objection was taken that the appeal was not competent. The learned Judges of the Calcutta High Court observed as follows: - "On the question as to whether an appeal would lie from such an order passed by the Munsiff however there must always be two opinions. One view is that an appeal being always a creature of the Statute, it is only when an order has been expressly made appeal able by the Code that an appeal would lay. The other view is that when an order, though not strictly justified by the statutory provisions relating to such an order appeal able under the Code, purports to have been made under such provisions, an appeal is competent. Acting on this view this court has often treated orders of remand, not strictly justified by the Code, as being open to appeal. The appellant himself appears to have acted on this view in preferring an appeal to the District Judge, an appeal which opened the venue for the respondents cross -appeal to which exception is now taken. I may observe in passing that it may be a question to consider whether the appellant is entitled to approbate and reprobate in the way he desires to do, having regard to the decisions in such cases as Bindeswari V. Zakpat (1) and Raghubar Dayal V. Jadunandan (2); but I do not feel called upon to go into this question or express any opinion on it as it has not been argued at the Bar. I think the view enunciated above is the one which found favor with this court in the case of Gnanoda Sundari V. Chandra Kumar De (3) in which it was held that where a court acting under S. 151 Civil P. C. exercises the same jurisdiction which S. 144 of that Code gives it, the order of restitution made under S. 151 is appeal able,"

(3.) IT , however, appears that their Lordships of Calcutta High Court have laid down a broad proposition of law without adverting to Section 104 C. P. C. That Section provides: - "Save as otherwise expressly provided in the body of this Code or by any law for the time being in force an appeal shall lie from those orders and not other orders."