H. Lucas vs T. Lucas And Anr. on 6 August, 1891

Calcutta High Court
H. Lucas vs T. Lucas And Anr. on 6 August, 1891
Equivalent citations: (1893) ILR 20 Cal 245
Author: P A Banerjee
Bench: Pigot, Banerjee


Pigot and Banerjee, JJ.

1. No authority has been shown to us for holding that an order of this kind is appealable on the ground suggested. We find that this Court has directed that the District Judge shall require security to an amount laid down by this Court, the security being such as in his discretion he shall consider sufficient for that amount. It appears to us that it would be in the highest degree inconvenient to treat such an order as has been passed by the Judge as appealable. The India Succession Act provides by Section 263t that orders made by the District Judge shall be subject to appeal to the High Court under the-rules contained in the Code of Civil Procedure so far as these rules are applicable. So far as that section furnishes us with a guide by analogy as to whether this order is appealable or not, the conclusion is that it is not so, because no provision is made by the Code of Civil Procedure for an appeal against an order made, whether in pursuance of the directions of this Court or otherwise, by a Subordinate Court, founded on the ground that security insufficient in point of quality has been accepted. Such orders are not appealable at all, and we think that we ought to follow that analogy in the absence of anything to the contrary being shown. Then it is said that this is in fact an appeal in which the whole matter is before us; that the whole of the matter of the grant of the certificate is before us; and that therefore, treating it in that way, we ought to deal with this question of security as arising in the appeal generally upon the whole matter. This Court in the case of Monmohinee Dassee v. Khetter Gopal Dey I.L.R. 1 Cal. 127, declined to act upon that view in a case under Act XXVII of 1860, an appeal with reference to a security order, in which the Court in considering whether Section 6* of that Act did or did not provide an appeal for such a case, held that it did not, saying with reference to an authority cited in favour of the appeal, there is nothing which affirms this Court’s power to hear an appeal as to any other matters than those which are connected with the propriety or otherwise of an order made granting a certificate; apparently considering that the question of the kind now before us as to security is not one involving the question of the propriety or otherwise of the granting of a certificate.

2. We think that we must hold that no appeal lies in this case. The appeal will accordingly be dismissed, and we think that the parties should bear their own costs.

* Sudder Court may suspend certificate granted by District Court, or direct further proceedings.

Sudder Court may grant fresh certificate in supersession of the certificate granted by the District Court.

[Section 6: The granting of such certificate may be suspended by an appeal to the Sudder Court, which Court may declare the party to whom the certificate should be granted, or may direct such further proceedings for the investigation of the title as it shall think fit the Court may also, upon petition, after a certificate shall have been granted by the District Court, grant a fresh certificate in supersession of the certificate granted by the District Court, such fresh certificate shall not affect any payments made to the person to whom any former certificate may have been granted, without notice that the same has been superseded, but shall entitle the person named therein to receive all moneys that may have been recovered under the first certificate from the person to whom the same may have been granted.]

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