DURGA CHARAN Vs. MARKANDE MISIR

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit brought against him by the plaintiffs respondents for account under Section 33, Clause (1), U.P. Agriculturists Belief Act. Money was due to the defendant on a mortgage of 14th April 1928 executed by the plaintiffs respondents. The trial Court found that Rs. 1210 were due. On appeal the lower Appellate Court has reduced the interest from 24 per cent, per annum to 12 per cent, per annum and has reduced the amount of Rs. 1210 which was found due by the plaintiff to the defendant by the trial Court by Rs. 484. The defendant has come here in second appeal. It has been urged by the learned Counsel for the appellant that no appeal lay to the lower Court. His contention is that the suit was filed under the provisions of Section 33, Clause (1), U.P. Agriculturists Relief Act, which is a special Act. It does not provide for an appeal from an order or decree which may be passed in the suit. There is no doubt that there are only two Secs.in the U.P. Agriculturists Relief Act, which refer to appeals. They are Section 5, Clause (2) and Section 23. These Secs.did not apply to the present suit. The suit was tried by a Civil Court of original jurisdiction (the Munsif). Section 96, Clause (1), Civil P.C., enacts: Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie from every decree passed by any Court exercising original jurisdiction, to the Court authorized to hear appeals from the decisions of such Court.

(2.) In the absence of any provision in the Civil Procedure Code or any other Act, restricting appeals, Section 96 will apply to all the decrees which are passed by any Civil Court exercising original jurisdiction. As already stated, the suit was tried by a Munsif. The order passed by him amounts to a decree as denned in Clause (2), Section 2 which provides: Decree means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the right of parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

(3.) The decision arrived at by the trial Court is undoubtedly a formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all matters in controversy in connexion with the mortgage in suit. The general principle was laid down in National Telephone Co. Ltd. V/s. Postmaster General (No. 2) (1913) A.C. 546. There it was observed: When a question is said to be referred to an established Court, without more it, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches : Per Viscount Haldane L.C. 552,