MUKUNDSA Vs. MOTIRAM

JUDGEMENT

(1.) THE suit out of which this appeal arises was filed in the Court of the 1st Subordinate Judge, Hoshangabad. The defendants, among other pleas, urged that the suit should have been filed at Burhanpur and that the Hoshangabad Court had. no jurisdiction. The first Court held that the suit was properly filed at Hoshangabad. Mukundsa appealed, In appeal it was held that the suit should have been filed at Burhanpur; the decree of the lower Court was set aside and the plaint was returned to the plaintiffs for presentation to the proper Court.

(2.) THE plaintiffs applied for review of this order, on the ground that one of the provisions of Section 21, Civil P.C. had been overlooked, as the question whether there had been a failure of justice had not been considered. The Judge who had decided the appeal directed that notice should issue. The successor of that Judge granted the application and directed that the appeal should be heard again, first with regard to the question whether there had been a failure of justice, and later if necessary on the merits. A defendant has appealed to this Court.

(3.) THE provisions of Order 47, Rule 7, have been reproduced from the former Code: Order 43, Rule 1 (w) is new. It seems clear that the existence of Order 47, Rule 7 must have escaped notice when it was decided to insert Order43, Rule 1 (w). I agree with the reasoning in Daso Keshav v. Karbasappa A.I.R. 1926 Bom. 121 and hold that Order 43, Rule 1 (w), enables a party to appeal on grounds other than 'those mentioned in Order 47 Rule 7 since there is nothing in the Code which expressly limits the grounds of an appeal under Order 43 Rule 1 (w). I hold, therefore, [that an appeal lies.