Ayyanna And Anr. vs Nagabhooshanam on 15 September, 1892

Madras High Court
Ayyanna And Anr. vs Nagabhooshanam on 15 September, 1892
Equivalent citations: (1893) ILR 16 Mad 285
Bench: M Ayyar, Wilkinson


1. It is contended for the respondent that no appeal lies to this Court from the order rejecting the appeal. We are unable to accede to the contention. An order rejecting a plaint is treated by Section 2 of the Code of Civil Procedure as a decree, and we are of opinion that the order rejecting an appeal must also be treated as a decree under the provisions of Section 582. We observe that the Subordinate Judge rejected the appeal after it had been filed by the District Judge, which he was not at liberty to do. The principle laid down in Gulab Rai v. Mangli Lal I.L.R., 7 All., 42 governs this case. The preliminary objection is disallowed.

2. It is urged on behalf of the appellants that, though in the vakalat filed in the Court below, the names of two vakils are entered, and though the vakalat was accepted only by one of them, yet the presentation of the appeal by the Pleader, who accepted the vakalat, is a sufficient presentation within the meaning of Civil Procedure Code, Section 541. It is doubtless a general rule that when an authority is given to two persons to do an act, the act is valid to bind the principal only when both concur in doing it, and that the authority must be construed strictly. The rule of interpretation is, however, not so rigid as to overcome the obvious intention of the principal, if the words in which the authority is given are capable of being so construed as to amount to an authority to both or either of them to do the particular act. In the case before us the vakalat was accepted only by one of the vakils, and not by both, and until it is accepted by both, it does not become a joint authority. Again the rule is intended to protect the principal, and it does not appear that the principal has repudiated the act done on his behalf in this case. Moreover, the acts authorized are the presentation and prosecution of the appeal, and the filing of the appeal is an act necessary to the preservation of the right of appeal and on that ground beneficial to the appellant. The circular order is intended to regulate the practice of the Courts under Sections 541 and 543, but it does not preclude the principal from insisting either that the authority is not in substance a joint authority or that he has not forfeited his right of appeal when he is willing to abide by it and to amend the vakalat.

3. We set aside the order of the Subordinate Judge and direct that the appeal be restored to his file and adjudicated upon on the merits. Costs of this appeal will be provided for in the revised judgment.

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