Bibi Washihan vs Mir Nawab Ali

Dawson Miller, C.J.—[His Lordship set out the facts of the case as given above and referring to the preliminary objection, proceeded:--]

This objection, I think, is sound. The Act itself which creates the cause of action does not provide for any appeal from the order of the District Judge. Nor is there anything in the CPC which would indicate that any appeal lay. The order of the District Judge is clearly not a decree and the cases in which an appeal lies from orders are laid down in Sections 104 and 105 of the Civil Procedure Code; the cases are there named in which an appeal lies from certain orders and an appeal lies from no other orders.

These two sections, coupled with Order XLI of the Code, show quite clearly to my mind that no appeal is permissible in such a case. The only contention put forward by the other side is that u/s 20 of the Bengal Civil Courts Act of 1887 it is provided that save as otherwise provided by any enactment for the time being in force an appeal from a decree or order of a District Judge or Additional District Judge shall lie to the High Court. The learned Vakil wants us to construe that section as if it granted a right of appeal from every order of the District Judge to the High Court. This is clearly not the interpretation of that section; the only thing the section is dealing with is the forum to which an appeal, if any, shall lie from decrees or orders of the District Judge.

In my opinion the preliminary objection is a sound one and this appeal is not permissible.

The appeal is dismissed with costs.

Foster, J.

I agree.