DEONATH MISSIR Vs. CHANDRAMAN MISSIR

JUDGEMENT

(1.) This appeal has been Sled in this Court by some o the defendants against the final decree in a partition suit. The partition suit was valued at Rs. 5000. A preliminary decree was passed, but no appeal was preferred against that decree. In usual course, the final decree has been passed, and this appeal has been preferred in this Court on the ground that the real value of the subject-matter of the suit was more than Rs. 5000, and, therefore the appeal lay to this Court. The appeal was filed beyond thirty days, but within ninty days of the date of the decree without mentioning either the value of the suit or the value of the appeal. The Stamp Reporter found from the decree, a copy of which was filed with the memorandum of appeal, that the suit was valued at Rs. 5000 only. The matter was placed before the learned Registrar of this Court who, by his order dated the 4th May 1955, directed the memorandum of appeal, along with the copies of decree and judgment, to be returned to the appellants for presentation to the proper Court; but this order was held in abeyance at the request of the appellants. Thereafter, on the 27th July 1955, a petition was filed on behalf of the appellants challenging the valuation of the suit as given by the plaintiffs to be Rs. 5,000 and suggesting the value of the subject-matter of the suit to be about Rs. 10,000, and praying that an enquiry should be made by this Court about the valuation. There was a counter-affidavit to the petition by the plaintiffs-respondents and affidavit in reply to the counter-affidavit by the appellants. The matter was placed before a Bench of this Court, which, by its order dated the 16th April 1956, has referred the following question to the Full Bench for consideration and decision : "Whether an appeal from a decree of a Subordinate Judge may lie straight to the High Court where the value of the original suit in which the decree was made did not exceed Rs. 5,000 on the allegation made by the appellant that the original suit should have been valued at more than Rs. 5,000 and whether in such a case the High Court may thereupon direct an independent enquiry to verify that allegation and thereafter to admit the appeal on the verification of the same ?"

(2.) We have heard the parties at length, and I must state at the outset that the learned counsel on both sides have rendered able assistance to the Court.

(3.) The right of appeal is not as a matter of course, but it is always the creation of statute. Section 96 (1), Civil P. C., the relevant part of it, runs as follows : "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall tie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court." This section merely refers to the Court authorised to hear appeals, and we must look elsewhere for such an authorisation. Reference in this connection must be made to Sections 20 and 21, Bengal, Agra and Assam Civil Courts Act (XII of 1887) which will hereafter be referred to as the Civil Courts Act. The relevant provisions contained in Sections 20 and 21 of this Act are as follows :