Ram Adhar Misra vs Parshottam Misra and Others

Malik, C.J.—This purports to be an appeal u/s 10 of our Letters Patent and it has-been put up today for admission. A suit was filed in the Court of Munsif, being original Suit No. 77 of 1944. There was an appeal filed against the decision of the learned Munsif in the Court of the Judge, Small Causes, at Gorakhpur. The appeal was decided on 7th January 1946. An application was filed to set aside the ex parte appellate decree and this application* wag also dismissed on 27th April 1946. Against the order refusing to set aside the ex parte appellate decree an appeal from order wag. filed in this Court under Order 43, Rule 1, Civil Procedure Code. This appeal was dismissed by a learned single Judge on 10th March 1949. The learned Judge did not grant leave to appeal-Under Section 10 of our Letters Patent. An appeal could be filed under the Letters Patent, only when the learned single Judge, hearing the appeal, had granted leave, if the case before him was against a judgment passed by the lower Court in the exercise of its appellate jurisdiction in respect of a decree or order. There can be no doubt that the learned Judge of the Court of Small Causes was seised of this case as a Court of appeal and the order passed by him was in the exercise of his appellate jurisdiction in respect of a decree or order. The appeal could not, therefore, be filed without leave.

The appeal is dismissed.