RAMCHANDRA ANANDRAO KULKARNI Vs. PANDU DAGDU TELI

JUDGEMENT

(1.) This is an appeal by defendant No. 2 against the decree passed by the Court of the Civil Judge at Vinchur in Suit No. 85 of 1912. A preliminary objection is raised by the plaintiffs that no appeal lies from the decree of the lower Court, and that if a special appeal lies it can lie only on the grounds mentioned in Clause 99 of Regulation IV of 1827. The appeal is registered as a first appeal.

(2.) The lower Court in this case exercises its powers under Regulation xiii of 1830. It has been ascertained by this Court in the unreported case of Bhika v. Fakirchand F.A. No. 4 of 1904 (Unrep.) that the Jagirdar of Vinchur is enumerated in the list furnished by Government, and the fact has not been disputed before us. It is clear, therefore, that under the first clause of Section 3 of Regulation xiii of 1830 his decision is final, and that no first appeal in the ordinary sense lies to this Court. It is equally clear that under Section 5 of the same Regulation a special appeal is open in all such cases to this Court. In two unreported cases (Bhika v. Fakirchand F.A. No. 4 of 1908 (Unrep:), and Mahadu v. Keshav F.A. No. 9 of 1908 (Unrep:)) it has been held that a special appeal lies to this Court.

(3.) It was argued on behalf of the plaintiffs-respondents that as the Regulation IV of 1827, which contained the provisions relating to special appeals, had been repealed, and as there was no provision in the present Code of Civil Procedure relating to special appeals, the right of appeal provided in Clause 5 of Regulation XIII of 1830 was practically non-existent. This contention appears to me to be wholly untenable. In the first place the right of appeal expressly conferred by a statute cannot be negatived in this manner. Indeed, if necessary, the scope of the special appeal provided by Regulation XIII of 1830 may have to be determined by a reference to the provisions of the repealed Regulation IV of 1827. But a reference to the statutes relating to Civil Procedure from time to time shows that though the expression special appeal does not occur in the present Code, broadly speaking the provisions relating to second appeals correspond to the provisions relating to special appeals in Regulation iv of 1827. It is, therefore, not accurate to say that there is no provision in the present Code relating to special appeals as contemplated by Regulation XIII of 1830.