1935 (4) TMI 24 - HC - Indian Laws

Summary

Issues:
1. Appeal against the order of the Subordinate Judge under Order 22, Rule 8, Civil P.C.
2. Jurisdiction of the District Judge to entertain the appeal under Order 22, Rule 10.
3. Validity of the appeal filed under Order 43, Rule 1(u).
4. Application of Order 22, Rule 8, and Rule 10 in the case.
5. Revisional jurisdiction in cases of miscarriage of justice.

Analysis:

1. The plaintiff, Kishen Lal, initiated a suit for a declaration of mortgagee rights and injunction, but was later adjudicated insolvent. The Official Receiver did not continue the suit, leading to its dismissal. An individual, Kanshi Ram, claiming to be an assignee from the Official Receiver, sought to continue the suit for his own benefit. The Subordinate Judge rejected his application, prompting an appeal to the District Judge. The issue arose whether an appeal lay against the Subordinate Judge's order under Order 22, Rule 8. The District Judge entertained the appeal, which was challenged in a subsequent appeal. The Court held that no appeal was competent against the District Judge's order, treating the appeal as a petition for revision.

2. The defendants raised a preliminary objection regarding the jurisdiction of the District Judge to entertain the appeal under Order 22, Rule 10. The District Judge considered the assignment as falling under Rule 10, allowing the appeal. However, the Court found that the appeal filed under Order 43, Rule 1(u) was not valid as it did not meet the criteria for appeal under that rule. The Court concluded that the District Judge's order was not maintainable, as it did not fall under the relevant provisions for appeal.

3. The Court analyzed the application of Order 22, Rule 8, which states that insolvency of a plaintiff does not cause the suit to abate unless the receiver declines to continue it. In this case, the receiver did not continue the suit, leading to its dismissal. The Court emphasized that the receiver, not being a party to the suit, could not transfer any interest under Rule 10. The order of the Subordinate Judge was deemed to fall under Rule 8, making it non-appealable under the law.

4. Despite arguments against interference due to the absence of a miscarriage of justice, the Court held that allowing an unauthorized individual to continue the suit would indeed constitute a miscarriage of justice. The Court exercised its revisional jurisdiction to set aside the District Judge's order, ruling in favor of the appellant and disallowing Kanshi Ram's application to be brought on the record of the original suit. The appeal was accepted as a petition for revision, with costs awarded to the appellant.