Interpretation of the Appellate Side Rules in relation to the appeal procedure under section 47 of the Guardians and Wards Act, 1890.

1. This matter has been referred to this Bench to answer the question as to whether an appeal under section 47 of the Guardians and Wards Act, 1890 is required to be posted for hearing under Order 41 Rule 11 of the Code of Civil Procedure.

2. The said reference has been occasioned by an order dated 22nd June, 2001, passed in this appeal, wherein it has been observed that the appeal was not required to be heard under Order 41 Rule 11 of the Code of Civil Procedure, since the appeal to the High Court lies under the Act itself.

3. This appeal appears to have been listed before another Bench presided over by Dilip Kumar Seth, J. on 12th September, 2002. While considering the matter the Division Bench took note of a decision of this Court in the case of Lalit Chandra Dhar vs. Abdul Rauf & Ors., reported in AIR 1988 Cal. page 15, where a similar question had arisen in connection with an appeal under the Provincial Insolvency Act and it had been held that the matter was required to be heard under Order 41 Rule 11 of the Code of Civil Procedure.

4. In the said order of 12th September, 2002, it was also mentioned that the said question had already been considered by the said Division Bench in the case of Nilmoni Majumder vs. Sanghamitra Majumder, reported in 2002 (2) C.L.J. Page 227.

5. Having regard to the provisions of Chapter V Rule 17 of the Appellate Side Rules of this Court, we see no reason to differ with the views expressed either in Lalit Chandra Dhar's case or in Nilmoni Majumder's case (supra). It is necessary to mention that Rule 17 of Chapter V of the Appellate Side Rules provides for Admission of Appeals. Clause (a) of Rule 17 of the Appellate Side Rules indicates that in the case of Appeals from certain orders and from decrees, the appeal is required to be admitted by the officer to whom the Memorandum is presented, who shall cause the same to be registered, and, thereafter, issue notice to the respondents. However, in clause (b) of Rule 17, it has been indicated that in case of an appeal from an appellate decree or an appeal from an order, other than an appeal under the Workmen's Compensation Act, an appeal from an order under Article 226 of the Constitution, an appeal under the Indian Railways Act (4 of 1890) and an appeal under the Motor Vehicles Act (4 of 1939), the officer to whom the Memorandum is required to be presented shall admit it, cause it to be registered, and, thereafter, post it to a Bench for hearing under Order 41 Rule 11 of the Code of Civil Procedure. In other words, an appeal not specifically excluded by clause (b) of Rule 17 of the Appellate Side Rules of this Court is required to be posted for hearing under Order 41 Rule 11 of the Code of Civil Procedure.

6. In the aforesaid circumstances, in the instant case also, this appeal, which has been provided for by section 47 of the Guardians and Wards Act, 1890 is required to be posted for hearing under Order 41 Rule 11 of the Code of Civil Procedure.

7. In such circumstances, the order passed on 22nd June, 2001 is recalled with a direction that this appeal be posted for hearing under Order 41 Rule 11 of the Code of Civil Procedure.

Altamas Kabir, J.; Bhaskar Bhattacharya, J. & G.C. De, J.