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The challenge in the present appeal is to an order dated 29th July, 2019 passed by the High Court of Judicature at Bombay, Bench at Aurangabad whereby the Defendant's Second Appeal was allowed by setting aside the judgment and decree of both the courts below. The matter was remanded to the Trial Court for disposal according to law.
The High Court has set aside the order passed by the courts below without framing any substantial question of law. It is argued that the suit was decided by the Ad hoc District Judge, Jalgaon on 05th October, 2004 when a decree for recovery of Rs.4,73,277/- was passed against the Defendant. The Plaintiff was also granted interest @ 15% per annum on amount of Rs.3,13,206/- from the date of institution of the suit till realization of the decretal amount. Against the said judgment and decree, the defendants filed First Appeal No.1153 of 2008 before the High Court. Subsequently, there was enhancement of pecuniary jurisdiction of District Court and the first appeal was transferred to the Court of District Court, Bhusawal.
After the said transfer, First Appeal was decided by the District Judge, Bhusawal, though the decree in the suit was passed by the Ad hoc District Judge. We find that the transfer of First Appeal to the Court of District Judge, Bhusawal was not proper since the order in suit was passed by the Court of Ad hoc District Judge which is of the same rank and status as that of the First Appellate Court i.e. District Judge. The learned counsel for the parties have not disputed the fact that appeal will not be maintainable against a judgment and decree passed by the Court of Ad-Hoc District Judge to the Court of District Judge.
In view the said fact, we find that the orders passed by the District Judge, Bhusawal on 22nd September, 2015 and by the High Court on 29th July, 2019 are clearly erroneous and passed without noticing the fact that the appeal will not lie from a judgment and decree granted by the Court of Ad hoc District Judge to the Court of District Judge.
Consequently, the orders of the District Judge, Bhusawal and the High Court are set aside and the matter is remanded back to the High Court to decide First Appeal No.1153 of 2008 filed by the Defendant in accordance with law without being influenced by any of the findings recorded by the District Judge, Bhusawal on 22nd September, 2015 and by the High Court on 29th July, 2019.
The appeal stands disposed of accordingly.