BANDIRAM MOOKERJEE Vs. PURNA CHANDRA ROY

JUDGEMENT

(1.) This is an appeal from an appellate order passed in execution proceedings on the basis of a decree in a mortgage suit which was valued at above Rs. 5,000. The order of the District Judge, which modifies the order of the Subordinate Judge, is challenged on the ground that the appeal from the order of the Subordinate Judge lay to this Court and not to the District Judge. This contention, is clearly well-founded.

(2.) Section 21, Sub-section (1) of the Bengal Civil Courts Act, 1887, provides that an appeal from a decree or order of a Subordinate Judge, shall lie to the District Judge, where the value of the original suit in which or in proceedings arising out of which the decree or order was made does not exceed Rs. 5,000 and to the High Court in any other case. In the case before us the value of the original suit exceeds Rs. 5,000. Consequently, an appeal against an order made in a proceeding arising out of the decree in the suit lies to this Court and not to the Court of the District Judge. The order of the District Judge was consequently made without jurisdiction. The question thus arises, whether this Court is competent to reverse that order in the exercise of its appellate jurisdiction. There can be no question that the order of the District Judge made under Section 47, is a decree within the meaning of Section 2 of the Civil Procedure Code. As the order was passed in appeal, a second appeal lies to this Court under Section 100, provided the reason assigned in support of it, namely, that the District Judge acted without jurisdiction, falls within the scope of one or other of the three clauses of Sub- section (1) of that section. The decision of the District Judge is, in our opinion, contrary to law; for although he does not explicitly state that he was competent to hear the appeal which had been preferred to him contrary to the provisions of Section 21 of the Bengal Civil Courts Act, yet his decision necessarily implies that he had jurisdiction to entertain the appeal; it is an elementary rule that no Court can entertain an appeal which it is not expressly authorised by law to hear. We must hold accordingly that the decision of the District Judge is contrary to law, because passed without jurisdiction, and must be set aside by this Court under Section 100, Civil Procedure Code. This view is in conformity with the principle recognised in Ranjit Missir v. Ramudar Singh 16 Ind. Cas. 940 : 16 C.L.J. 77, 17 C.W.N. 116, namely, that when a decree has been made without jurisdiction, an appeal lies against it precisely in the same manner as if it had been made with jurisdiction. This doctrine has been repeatedly, affirmed in a long line of cases. Abdul Hussein v. Kasi Sahu 27 C. 362 : 4 C.W.N. 41 : 14 Ind. Dec. (N.S.) 239, Gangadhar Karmakar v. Shekharbasini Dasya 35 Ind. Cas. 348 : 24 C.L.J. 235 : 20 C.W.N. 967, Jwala Prasad v. Salig Ram 13 A. 575 : A.W.N. (1891) 158 : 7 Ind. Dec. (N.S.) 363 and Velayudam v. Arunachala 13 M. 273 : 4 Ind. Dec. (N.S.) 1902. This view is also supported by the terms of Section 99, Civil Procedure Code, which applies to appeals from appellate decrees by virtue of Section 108.

(3.) The result is that this appeal is allowed, the order of the District Judge set aside and that of the Subordinate Judge restored. We do not, however, express any opinion as to the correctness of the order of the Court of first instance.