BOMKESH SETH Vs. BHUTNATH PAL

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould passed in the exercise of revisional jurisdiction.

(2.) A suit for rent was instituted by the appellant in the Court of the First Munsif at Sealdah in the District of 24-Perganas. The claim was contested and the suit was dismissed. An appeal was thereupon lodged in the Court of the Subordinate Judge of 24 Pargannas. The appeal was heard on the merits and the decision of the Trial Court was reversed. Against the decree of the Subordinate Judge two proceedings were instituted in this Court : one was an appeal from appellate decree, the other was an application for revision, on the basis whereof a Rule was issued by this Court. The common question which was argued before Mr. Justice Newbould in both these proceedings was, whether an appeal lay to the Subordinate Judge from the decision of the Primary Court. It was urged that as the amount claimed did not exceed lis. 50 and as the suit was decided by a Munsif who was empowered by the Local Government to exercise final jurisdiction under Section 153 of the Bengal Tenancy Act, his decision could not be challenged by way of appeal to the Subordinate Judge. Mr. Justice Newbould came to the conclusion that the appeal from appellate decree presented to him was incompetent, because the Subordinate Judge had not determined by his decree any of the special questions mentioned in Section 153 of the Bangal Tenancy Act which would justify an appeal to this Court. In this view, the appeal from appellate decree was dismissed as incompetent. In the Rule Mr. Justice Newbould came to the conclusion that the decree of the Subordinate Judge must be discharged as made without jurisdiction. His view of the proceedings in the Trial. Court was that no such special questions had been decided there as would entitle the party aggrieved to maintain the appeal before the lower Appellate Court. From this stand point he made the Rule absolute, set aside the decree of the Subordinate Judge and restored the decree of the Court of first instance.

(3.) The present appeal under the Letters Patent purports to be directed against the decree of dismissal made in the appeal from appellate decree as also against the order for reversal made in the Rule, As regards the decree of dismissal made in the appeal from appellate decree, it is clear that the appellant is not entitled to maintain the appeal. That decree is in his favour and he cannot appeal against a decree in his favour, solely with a view to attack the propriety of the grounds assigned in the judgment in support of that decree. In reality, the appeal under the Letters Patent is directed against the order made in the Rule.