Calcutta High Court
Monmohinee Dassee vs Khetter Gopaul Dey on 20 August, 1875
Equivalent citations: (1876)ILR 1CAL127
JUDGMENT Glover, J.
1. In Rajmohini Chowdrain v. Denobundhoo Chowdree it is decided that "Section 6, which is the only section which refers to the right of appeal, limits it to the question of the grant of the certificate. This Court would be able to decide on appeal whether the Judge had selected the proper person to give the certificate to, but there is no section which gives any appeal with reference to the amount of security which the Judge may think it right to demand from the applicant for a certificate, and there is no general section as there is in the cognate Act XL of 1858 with regard to appeals." And in Bani Madhub Mooherjee v. Nilambur Banerjee 8 W.R. 376 it is said with reference to Section 6,--"the intention of the section was to enable a person aggrieved by the granting of a certificate to some other person to come before the Sudder Court and appeal against such grant." And the gist of the decision is that, except with reference to the grant of a certificate, there is no appeal allowed by the Act. Reference however was made to a case which is said to maintain a contrary view--Tarini Churn Brohmo v. Bamasoonduree Dossee, In this ease it is laid down that, under Act XXVII of 1860, an appeal lies from the result of an enquiry or omission to make such enquiry. But this enquiry or omission to make enquiry seems to me to refer exclusively to the grant of certificates.
2. The learned Judges say, speaking of Section 6, "it recognizes and declares the power of this Court to superintend the proceeding's of the District Court, and enable parties to have the benefits of that superintendence by way of appeal."
3. This was with reference to an enquiry into the title to a certificate which the District Judge had not completed, having delivered his judgment without taking all the evidence adduced by the parties; and this, I have no doubt, would be a matter binding the proper person to whom a certificate should be granted, which would allow of an appeal under Section 6.
4. But I find nothing in the judgment which affirms this Court's power to hear an appeal as to any other matter than those which are connected with the propriety or otherwise of an order made granting a certificate, and there is nothing as it seems to me in the decision that in any way conflicts with the two previously quoted.
5. I think therefore that we must dismiss this appeal. I should have been willing to interfere if we could have done so, for the Judge's order seems to make it impossible for the widow ever to be able to take out the certificate, and without it she cannot draw the interest on the Government promissory note, which is said to be and probably is her sole means of living.