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Babu Kailash Chandra Vs. Lala Radhey Shiam and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All565
AppellantBabu Kailash Chandra
RespondentLala Radhey Shiam and anr.
Excerpt:
- - it would appear that in the grounds of appeal he complained against the refusal of the court of first instance to reduce the interest and to grant instalments, but it is clear that in the court of the district judge he confined the appeal to the refusal of the learned civil judge to grant payment by instalments. as no appeal lies in a case such as this, clearly we cannot accede to an application praying that the time for filing this appeal be extended......the proceedings commenced by an application by the judgment, debtor in the court of the learned civil judge that the interest under a certain mortgage decree should be reduced and that it should be ordered that the amount due under that decree be paid by instalments. the learned civil judge came to the conclusion that the judgment-debtor was not an agriculturist and therefore was not entitled to claim the benefits of sections 5 and 30, agriculturists' belief act 1934. the judgment-debtor appealed to the learned district judge against the order of the learned civil judge. it would appear that in the grounds of appeal he complained against the refusal of the court of first instance to reduce the interest and to grant instalments, but it is clear that in the court of the district judge.....
Judgment:
ORDER

1. This is an application by a judgment-debtor appellant praying that this Court should extend the time for filing an appeal under the provisions of Section 5, Limitation Act. The proposed appeal is against an order of the learned District Judge passed on appeal in a case arising out of the Agriculturists' Belief Act. The proceedings commenced by an application by the judgment, debtor in the Court of the learned Civil Judge that the interest under a certain mortgage decree should be reduced and that it should be ordered that the amount due under that decree be paid by instalments. The learned Civil Judge came to the conclusion that the judgment-debtor was not an agriculturist and therefore was not entitled to claim the benefits of Sections 5 and 30, Agriculturists' Belief Act 1934. The judgment-debtor appealed to the learned District Judge against the order of the learned Civil Judge. It would appear that in the grounds of appeal he complained against the refusal of the Court of first instance to reduce the interest and to grant instalments, but it is clear that in the Court of the District Judge he confined the appeal to the refusal of the learned civil Judge to grant payment by instalments. Counsel for the judgment, debtor made a statement before the learned District Judge making it abundantly clear that the appeal was confined purely to the question of instalments. The learned District Judge having heard the case came to the conclusion that the judgment-debtor was an agriculturist and allowed the appeal and remanded the case to the lower Court to be heard and determined according to law. Against this order the present applicant desires to file an appeal and by this application prays that the time for filing such appeal be extended.

2. In our judgment no appeal lies to this Court in a case of this kind. As we have stated, the judgment-debtor confined his case in the district Court to the question of the learned Civil Judge's refusal to grant instalments. He is given a right of appeal, where the Court of first instance refuses to grant instalments, to the Court to which the Court of first instance is immediately subordinate. In this case he had a right of appeal to the Court of the District Judge, but in our view the order passed by the learned District Judge is final. Sub-section (2) of Section 5, U.P. Agriculturists' Belief Act, 1934, provides:

If, on the application of the judgment-debtor, the Court refuses to grant instalments, or grants a number or period of instalments which the judgment-debtor considers inadequate, its order shall be appealable to the Court to which the Court passing the order is immediately subordinate, and the decision of the appellate Court shall be final.

3. It has been argued that this subsection cannot bar an appeal in this case because the order of the District Judge is not a final order. It is an order allowing the appeal and remanding the case to the Court below for decision according to law, but it is to be observed that what is made final in Sub-section (2) of Section 5, U.P. Agriculturists' Belief Act is the decision of the appellate Court. The appellate Court in this case came to the conclusion that the view taken by the Civil Judge was wrong and that his order would have to be reversed and the case re-considered by the Court below and determined according to law. In our judgment this is a decision which is made final by the terms of Sub-section (2) of Section 5 to which we have referred and that being so there can be no appeal from such order to this Court. As no appeal lies in a case such as this, clearly we cannot accede to an application praying that the time for filing this appeal be extended. Mr. Agarwala who has argued this case on behalf of the judgment-debtor has asked us to treat the appeal as a revision and to admit it as such, but in our judgment we cannot do this. The only ground upon which we could treat this appeal as a revision is that the learned District Judge had refused to consider the question of reduction of interest, but as we have pointed out the appeal by the judgment-debtor was confined to the question of instalments and the question of reduction of interest was abandoned. On the question of instalments the learned District Judge has directed a re-hearing which is entirely in favour of the judgment-debtor and that being so there is nothing in the order of the learned District Judge which the present applicant can ask us to vary or alter by way of revision. The result, therefore, is that as no appeal lies and there is no ground for interference by way of revision, this application is dismissed with costs which we assess at Rs. 30.


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