Syed Alli Saheb vs The Chairman Of The Salem … on 9 March, 1893

Madras High Court
Syed Alli Saheb vs The Chairman Of The Salem … on 9 March, 1893
Equivalent citations: (1893) 3 MLJ 223


1. There is no second appeal since there is no decree against which a second appeal can be preferred, neither can the appeal be entertained as an appeal against an order under Section 32, Civil Procedure Code, since the District Judge does not hold that 2nd defendant has been improperly joined and direct that he be excluded from the suit. On the contrary while calling his judgment an ad interim order he says that he dismissed the suit as against 2nd defendant on the ground that the claim against him is for damages and is barred under the Municipal Act.

2. We are constrained therefore to dismiss both the second appeal and the appeal against the order, but in so doing we are bound to point out that the judge was entirely wrong both in his procedure and in the law which he applied to the case.

3. He should not have heard the appeal piecemeal, but have disposed of the whole case, and the result of this procedure has been that while the plaintiff’s suit as against 2nd defendant has been dismissed with costs there is no decree from which the plaintiff can appeal.

4. The grounds of decision are also wrong. The suit as against the Municipality is not one for damages, nor are damages asked for in the plaint. The suit is for possession of some land and for the removal of some latrines. To such a suit the special limitation enacted by the Municipal Act does not apply.

5. The suits there contemplated are suits for compensation and for damages against officers of the Municipality for wrongful acts done under cover of the Act for which time is allowed for the tender of amends, see Syed Ameer Sahib v. Venkatarama, I. L. R, 16 M, 296, and President of the Taluk Board, Sivaganga v. Narayanan I. L. R, 16 M, 317. Chunder Sikhur Bundopadhya v. Obhoy Churn Bagchi, I. L. R, 6 C, 8; Joharmal v. The Municipality of Ahmednagar, I. L. R, 6 B, 580; Rathnasalapathi v. Vythilinga Pandara Sannidhi, S. A. No. 975 of 1889 has been dissented from.

6. The plaintiff’s appeal is premature since no decree has been passed from which an appeal can be preferred. We must therefore dismiss it but under the circumstances we make no order as to costs either in the second appeal or in the appeal against the order.

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