RAMGOPAL SANYAL Vs. NARENDRA NATH GHATAK

JUDGEMENT

(1.) THIS revision petition is directed against an order of the District Judge of Rajshahi dated 30 January 1928, dismissing the petitioners appeal on the ground that no appeal lay from the order of the trial Court to him. The plaintiff-petitioners brought a suit in the Court of the Subordinate Judge of Rajshahi for a declaration that the sale held in execution of a decree obtained by the opposite party was null and void. The Subordinate Judge ordered the petitioners to put in Court-fees sufficient to cover the value of the claim. The petitioners instead of doing that applied for amendment of the plaint. The learned Subordinate Judge rejected the petition for amendment and thereafter rejected the plaint under Order 7, Rule 11, Civil P.C. That order is according to the definition of decree as given in Section 2, Civil P.C., a decree and was open to appeal. The petitioners appealed to the District Judge who dismissed the appeal on the ground that no appeal lay to him.

(2.) THIS Rule has been obtained against that order and a preliminary objection is taken that Section 115, Civil P.C. does not apply as in the present ease the order of the Court below was open to appeal. We think that the preliminary objection should prevail. The order rejecting a plaint is a decree. An order passed in appeal from that order is also a decree and is therefore open to a second appeal to this Court. The learned vakil for the petitioners argues that where the lower appellate Court holds that no appeal lies to him, there is no appeal to this Court and his only remedy is to proceed with the help of Section 115, Civil P.C. THIS is not a correct view of the law. Whatever the order of the lower appellate Court may be and on whatever ground it may be based, the effect of it is that the plaintiffs appeal is dismissed, and if from the original order there was an appeal to the District Judge a second appeal to this Court is also available from the order of the District Judge. In support of this view we may refer to the ease of Mathura Mohan Pal V/s. Amiruddi [1903] 8 C.W.N. 64. In this view we think that this Rule is incompetent. It is therefore discharged with costs--2 gold mohurs.