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2012 DIGILAW 757 (GAU)

Radha Raman Debnath v. Uttam Bal

2012-06-19

I.A.ANSARI, S.C.DAS

body2012
JUDGMENT Iqbal Ahmed Ansari, J. 1. This application, under Chapter II of the Gauhati High Court Rules, has been made by the applicants, seeking to get set aside the impugned order, dated 03.05.2012, and to get the Registry directed to register the appeal in accordance with the procedure prescribed by law and place the appeal, before the appropriate Bench, for necessary order. We have heard Mr. D. Chakraborty, learned counsel, for the applicants, and Mr. D.K. Das Choudhury, learned counsel, appearing on behalf of the respondents. 2. While considering the present application, it needs to be noted that in Title Execution Case No. 10 of 2007, pending in the Court of the learned Civil Judge (Senior Division), South Tripura, Udaipur, the applicants filed an application, under Order XLIII, Rule 1(u) of the Code of Civil Procedure (in short, 'the Code'), resisting the execution of the decree, dated 07.04.2007, passed in Title Appeal No. 10 of 2006, by the learned District Judge, South Tripura. The application, so made, gave rise to Civil Misc. Case No. 38 of 2010 of the Court of the learned Civil Judge (Senior Division), South Tripura, Udaipur. 3. The application, so made, under Order XLIII Rule 1(u) of the Code, was allowed by order, dated 08.04.2011, passed by the learned Civil Judge (Senior-Division), Udaipur, in Misc. Case No. 38 of 2010. Aggrieved by the order, dated 08.04.2011 aforementioned, the opposite party herein preferred an appeal, which gave rise to Civil Misc. Appeal No. 3 of 2010, which ended in the order, dated 10.01.2012, passed by the learned District Judge, Udaipur, remanding the proceeding, to the learned Court below, for de novo trial. 4. Aggrieved by the order, dated 10.01.2012 aforementioned, an appeal, under Order XLIII Rule 1(u) of the Code, has been filed by the applicants herein. However, the Stamp Reporter of the Registry has reported that the value of the appeal has not been mentioned in the body of the memorandum of appeal and, on the basis of the report, so made, the learned Lawazima Court passed the impugned order, dated 03.05.2012, refusing to register the appeal. 5. However, the Stamp Reporter of the Registry has reported that the value of the appeal has not been mentioned in the body of the memorandum of appeal and, on the basis of the report, so made, the learned Lawazima Court passed the impugned order, dated 03.05.2012, refusing to register the appeal. 5. Considering the fact that the appeal, in question, has not been preferred against any decree, but against an appealable order, the appellants have already paid the fixed Court Fees of Rs.10/- as per Rule 11(c) of Schedule of the Court Fees Act, 1870, and this fact was clearly mentioned in the memo of appeal. 6. In the circumstances indicated above, the appeal ought to have been treated as a regularly instituted appeal and, upon registration thereof, the appeal ought to have been listed, for admission, before the appropriate Bench. In view of the above and in the interest of justice, the Registry is hereby directed to do the needful in accordance with law and, then, place the appeal, in question, for admission, before the appropriate Bench.