1. This is an appeal by the defendant against an order of remand passed by the learned District Judge of Agra in an appeal against a decree of an Assistant Collector of the first class in a suit for profits under Section 227, Agra Tenancy Act of 1926. A preliminary objection has been raised to the effect that no appeal lies against the order in question. The appeal was filed in this Court on 2nd May 1938 when the Tenancy Act of 1926 was in force. In view of the provisions of the Act and of the decision in Rameshwar Dayal v. Om Prakash : AIR1932All40 , among others, the learned Counsel for the appellant does not find it possible to contend that the appeal, when filed in this Court, was competent. He however points out that since the institution of this appeal a new Tenancy Act, being U.P. Act 17 of 1939, has come into existence, and contends that his appeal, although it was incompetent when filed, has become competent by virtue of the provisions of this Act. Reference is made to Section 296 of the new Act. The relevant portion of that section reads thus:
A suit under any of the provisions of the Agra Tenancy Act, 1926...which is pending at the commencement of this Act...shall be decided...in accordance with the corresponding provision of this Act and if there is no such corresponding provision, the proceeding relating to such suit...shall be quashed.
2. It is argued that an appeal is a continuation of a suit. He next refers to Section 272 of the new Act which lays down that
no appeal shall lie from any order passed in appeal under the provisions of Sub-section (7) of Section 126, Section 270 or Section 271,
and contends that as the appeal to the District Judge, in which the order of remand in question has been passed, was not under the provisions of Section 126(7), Section 272 or Section 271 of this new Tenancy Act, 17 of 1939, a right of appeal exists under the new Act as the prohibition contained in Section 272 of that Act is not applicable to the case. It may at the very outset be pointed out however that the appeal in the Court of the District Judge had been filed, not under any provision of the Tenancy Act of 1939, which was not in existence when that appeal was filed, but under Section 242, Tenancy Act of 1926. Apart from that, the argument advanced by the learned Counsel for the appellant is, in my opinion, without force for several reasons. A right of appeal is a creature of statute. No litigant can claim a right of appeal un-less that right is expressly conferred by the statute. The argument that Section 272 of the new Tenancy Act does not contain any prohibition against the right of appeal claimed in the present case can be of no assistance to the appellant. It is necessary for him to show that the statute affirmatively confers a right of appeal against an order of this character. Section 263 of the new Act provides that 'no appeal shall lie from any decree or order passed by any Court under this Act except as provided in this Act.'
3. None of the sections which follow gives a right of appeal against an order of remand passed by a District Judge in an appeal against a decree of an Assistant Collector of the first class in a suit for profits. I am of opinion therefore that the new Act does not provide for an appeal against such an order. Further, I am unable to accept the argument that this appeal, which admittedly was incompetent on the date when it was filed, could become competent as the result of the passing of the new Act subsequently. An order or decree which, under the pro. visions of the statute in force on the date of the passing of the order or decree, is final, cannot lose its finality by reason of the passing of subsequent legislation. It is sufficient to refer to the decision of their Lordships of the Privy Council in Delhi Cloth & General Mills Co. Ltd. v. Income-tax Commissioner, Delhi . For the reasons given above, I hold that no appeal lies to this Court in this case. The appeal is accordingly dismissed with costs.
4. At this stage Mr. Girdhari Lal Agarwala prays that the memorandum of appeal be treated as a petition in revision, and advances certain arguments on the footing that it is a revision. Before dealing with those arguments I consider it my duty to observe that in my judgment this practice of filing an appeal, and then, when it is found by the Court that no appeal lies, requesting the Court to treat it as a revision, is not always desirable. When this appeal was filed, there could have been and should have been no doubt in the mind of the learned Counsel as to whether an appeal against such an order lay to this Court or not. The statute itself was perfectly clear. It had also been laid down in the clearest possible language in more cases than one that no such appeal lay, and it is not contended that there was single ruling to the contrary. If the case had been filed as a revision, the learned Judge receiving applications, before whom it would have come up for admission, would have taken it into consideration as a revision and would have applied his mind to the question whether it was a fit case for admission as a revision. The case having been filed as a first appeal from an order, it came up for hearing before a learned Judge under Order 41, Rule 11, Civil P.C. The hearing at that stage being ex parte the attention of the learned Judge was not drawn to the fact that no appeal lay and no occasion arose for him to consider whether it was a fit case for admission as a revision. All that the learned Judge in these circumstances considered was whether there was a point of law which justified the admission of the case as an appeal. The obstacles which often lie in the path of a revision were thus avoided and the compliance by the trial Court with the order of remand made by the Court below has been held up for over two years.
5. The matter then comes up for final hearing and is pressed strenuously as an appeal. When all this time of the Court has been spent over the hearing of this matter in these successive stages and it is found that the appeal has been incompetent from the very outset, the request is made that it should be treated as a revision. In my opinion such a request should not be entertained. The arguments which have been advanced on the footing that this is a revision have not disclosed any of the grounds on which alone the revisional jurisdiction of this Court can be exercised. A long recital of numerous facts has been given and the upshot of the whole argument is that because of certain circumstances, which it is contended exist, the appellant is not liable. No such argument seems to have been advanced before the lower appellate Court. It cannot be entertained here in revision. It is not for this Court to find facts in revision. Accordingly, I dismiss the petition as a revision also. The learned junior standing counsel prays for costs of the revision as distinct from the costs of the appeal. He shall have such costs, if any.