Raghubir Narayan Singh and Another vs Soti Lal Sahu

Courtney-Terrell, C.J.—This is an appeal from a decision of the Judicial Commissioner of Chota Nagpur who dismissed a miscellaneous appeal from the decision of the Munsif on the ground that no appeal lay. The facts of the case are somewhat peculiar. The plaintiff had obtained a judgment against the appellant for Rs. 4,200 in a mortgage suit. On 4th November 1930, the appellant filed a receipt for Rs. 3,975 purporting to be dated 11th September 1930, and applied for certification of this payment. The application was registered as a miscellaneous case on 13th December 1930.

On the 16th of the same month, however, the decree-holder applied to make the decree final on the ground that nothing had been realised. The original application by the appellant came before the Court on 13th June 1931, and by an order which is numbered 43 it is stated that the pleader for the applicant said he had no instructions; the opposite party (that is to say the decree-holder) tendered evidence of the falsity of the receipt and that evidence was heard but the Munsif reserved orders until he had disposed of the application to make the decree final. On the 16th he took up the matter of the application for the certificate together with the application of the decree holder to make the decree final with the result that after considering such evidence as was before him he dismissed the application for the certificate and made an order making the decree final.

Now it appears that the applicant was prosecuted for forging the receipt and was duly convicted and the conviction was sustained on appeal. He is now in jail.

The applicant then appealed from the decision of the Munsif refusing to certify the payment. He did not however at that time appeal against the final decree. The appeal came before the learned Judicial Commissioner who dismissed it summarily stating that no appeal lay. It is perfectly clear, however, that an order refusing a certificate is appealable and that matter has already been decided in, to give one case as an instance, that of Jadunandan Singh Vs. Sheonandan Prasad Singh and Another, . A preliminary objection was taken to the appeal from that decision to this Court

Again it was contended on behalf of the respondent that no appeal lay and it was said that the proper course was to appeal against the final order. It is, however, unnecessary for the appellant to appeal against the final order. If he has been successful in his appeal the payment alleged by him will be certified and he will be able to take advantage of that certificate in execution of the case against him under the final decree. I would therefore allow this appeal and remind the case to the Judicial Commissioner to be dealt with on its merits. In the circumstances of the case we think it right to make the costs abide the result.

Saunders, J.

I agree.