SAILAJA NATH GUHA ROY Vs. CHARU BALA DASSI

JUDGEMENT

(1.) In the suit out of which this appeal has arisen, the plaintiff sued for recovery of khas possession of a certain plot or plots of land on eviction of the defendant therefrom and after establishment of his title. In the First Court, the suit was decreed with costs against the defendant. The defendant appealed to the District Court. The District Court on the 21 of June 1923 decreed the appeal in a modified form and varied the decree of the trial Court and against the decree that followed on this judgment, the plaintiff appealed to this Court. A preliminary objection has been raised by the respondent as to the competency of the appeal. The facts appear to be these: The decree now appealed against was signed on the 26 June, 1923, the judgment having been delivered on the 21 June, 1923. On the 2nd October, an application for review was made to the learned Subordinate Judge. Notice was issued on the opposite party and the opposite party appears to have filed objections. The matter was heard on the 27 of February when the learned Subordinate Judge passed the following order: "Review being granted the appeal is restored to file. Judgment is delivered in the review case modifying the decree of the appeal to this extent that the plaintiff's claim to plot unga of the plaint is dismissed." A separate judgment was written by the learned Subordinate Judge in which he dealt with both the application for review and also the appeal after review. On the 6 March a decree was drawn up in accordance with this judgment.

(2.) The learned Vakil for the respondent contends that the decree of the 26 June, against which the plaintiff has appealed, is no longer in existence but has been superseded by the decree of the 6 March.

(3.) We think this contention is quite right. The decree of the 26 June is no longer in existence and has been superseded by the decree of the 6 March. Therefore the present appeal being against the decree which is not in existence is incompetent.