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Brijraj Saran Sing Vs. Sisram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All91a; 122Ind.Cas.415
AppellantBrijraj Saran Sing
RespondentSisram
Excerpt:
- .....to this court. the decree-holder desired to execute his decree for arrears of rent by ejectment of sisram. sisram objected that the decree-holder's property had at present vested in a receiver and that, therefore, the decree holder could not execute a decree for possession relating to property which was no longer in his possession. this defence was not accepted by the trial court of the assistant collector who by an order dismissed the objection and directed execution to proceed by ejectment of sisram. this was certainly an order in the execution department and not a decree as defined by section 2(14), agra tenancy act. according to that definition 'decree' means any order which so far as the revenue court is concerned finally disposes of a suit. the direction of the assistant collector.....
Judgment:

Dalal, J.

1. Mr. Malik on behalf of the respondent Sisram tenant judgment-debtor has objected that no second appeal lies to this Court. The decree-holder desired to execute his decree for arrears of rent by ejectment of Sisram. Sisram objected that the decree-holder's property had at present vested in a receiver and that, therefore, the decree holder could not execute a decree for possession relating to property which was no longer in his possession. This defence was not accepted by the trial Court of the Assistant Collector who by an order dismissed the objection and directed execution to proceed by ejectment of Sisram. This was certainly an order in the execution department and not a decree as defined by Section 2(14), Agra Tenancy Act. According to that definition 'decree' means any order which so far as the revenue Court is concerned finally disposes of a suit. The direction of the Assistant Collector did not dispose of any suit and so did not amount to a decree. From that order an appeal is permitted to the District Judge under Section 248(3), but from the order of the District Judge no second appeal is permitted. A second appeal is barred under the provisions of Section 249 of the Act. Confusion arises by reason of different meanings being assigned to a decree in the Code of Civil Procedure and in the Agra Tenancy Act. A decree as defined in the Code of Civil Procedure S.2(2) includes the determination of any question within Section 47, Civil P.C. According tot hat definition the Assistant Collector's adjudication would amount to a decree. Mr. Raina argued with some plausibility that the order of the appellate Court of the District Judge was a decree and that he had come here from the appellate decree of a District Judge. If this view were accepted, there would be no meaning in the prohibition disallowing a second appeal from an order. I think the correct view would be that where there is an order and not a decree of the revenue Court there can be only one appeal, and not a second appeal to this Court. For this reason I disallow the appeal and dismiss it with costs.


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