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Bohra Baijnath Vs. Hoti and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1946All282
AppellantBohra Baijnath
RespondentHoti and ors.
Excerpt:
.....decree, but he failed to appear on one of the dates fixed for the hearing of the execution case. the learned district judge dismissed the appeal on the ground that no appeal lay to him from the order complained of. this revision petition has been filed by the decree-holder against that order and the contention is that an appeal did lie from the order in question to the district judge and that, therefore, the learned judge failed to exercise a jurisdiction vested in him by law. i have come to the conclusion that the contention put forward on behalf of the decree-holder, petitioner for revision, is well-founded. beni prasad air1929all123 is concerned, the learned judge was clearly in error. that decision was given in a case in which the decree under execution was a decree of a civil court..........that an appeal did lie from the order in question to the district judge and that, therefore, the learned judge failed to exercise a jurisdiction vested in him by law. i have come to the conclusion that the contention put forward on behalf of the decree-holder, petitioner for revision, is well-founded. the learned district judge has relied on the ruling in sumer chand v. beni prasad : air1929all123 . the decree-holder relied on sub-section (2) of section 271, u.p. tenancy act of 1939 and contended that an appeal did lie from the order in question as it was an order mentioned in section 47, civil p.c. the learned judge repelled that contention on the ground thatan order of dismissal for default does not relate to the execution, discharge or satisfaction of a decree and, therefore,.....
Judgment:
ORDER

Verma, J.

1. The opposite parties have not appeared although they have been served in a manner which is sufficient under the law. The result is that I have not had the benefit of hearing any arguments on their behalf. I am satisfied, however, that Mr. Krishna Shanker, who appears for the petitioner, has placed before me all the material facts and all the relevant provisions of the law applicable to the case. On 20th July 1939, the petitioner for revision obtained a decree from the Court of an Assistant Collector, first class, for arrears of rent in a suit valued at more than Rs. 200. He applied for the execution of that decree, but he failed to appear on one of the dates fixed for the hearing of the execution case. The Assistant Collector thereupon dismissed the execution application for want of prosecution (ba adam pairavi). The petitioner took an appeal from that order of the Assistant Collector to the Court of the District Judge. The learned District Judge dismissed the appeal on the ground that no appeal lay to him from the order complained of. This revision petition has been filed by the decree-holder against that order and the contention is that an appeal did lie from the order in question to the District Judge and that, therefore, the learned Judge failed to exercise a jurisdiction vested in him by law. I have come to the conclusion that the contention put forward on behalf of the decree-holder, petitioner for revision, is well-founded. The learned District Judge has relied on the ruling in Sumer Chand v. Beni Prasad : AIR1929All123 . The decree-holder relied on Sub-section (2) of Section 271, U.P. Tenancy Act of 1939 and contended that an appeal did lie from the order in question as it was an order mentioned in Section 47, Civil P.C. The learned Judge repelled that contention on the ground that

an order of dismissal for default does not relate to the execution, discharge or satisfaction of a decree and, therefore, Section 271(2), U.P. Tenancy Act, also does not make the order of the lower Court appealable.

2. So far as the reliance on the decision in Sumer Chand v. Beni Prasad : AIR1929All123 is concerned, the learned Judge was clearly in error. That decision was given in a case in which the decree under execution was a decree of a civil Court and the order complained of had been passed by a civil Court. Thus the tight of appeal was governed by the provisions contained in the Code of Civil Procedure. A right of appeal is given by that Code against all 'decrees' (Section 96) and against certain orders specified in Section 104(1). In the case of decrees, a second appeal is allowed in certain cases (Section 100). In the case of orders, no second appeal is allowed - vide Sub-section (2) of Section 104. The result is that an appeal can lie from an adjudication only if it is a 'decree' or is an 'order' falling within one of the categories mentioned in Section 104(1) of the Code. The determination of any question within Section 47 of the Code would not have been a 'decree' but for the fact that such a determination has been expressly included in the definition of 'decree' given in Section 2(2) of the Code. Having been so included, such a determination has acquired the status of a 'decree' and so becomes appealable under Section 96 of the Code. At the same time, a determination of, any question within Section 47 which is in the form of an order of dismissal for default is expressly excluded from the definition of 'decree' by Section 2(2) of the Code. Consequently, in cases in which the right of appeal is governed by the Code of Civil Procedure, a determination of a question within Section 47 of the Code which is in the form of an order of dismissal for default is not appealable as a decree because it is not a decree and is not appealable as an order because it does not find a place in Section 104(1) of the Code. The ruling in Sumer Chand v. Beni Prasad : AIR1929All123 was given in a case of that description.

3. The position, however, is different in cases in which the right of appeal is governed by the provisions laid down in the Tenancy Act. Section 263 of that Act lays down that 'no appeal shall lie from any decree or order passed by any Court under this Act except as provided in this Act.' The whole of Part VII, Civil P.C., is thus in-applicable to cases governed by the Tenancy Act. In view of the facts of this case, therefore, the Assistant Collector's order in question is appealable if it is 'an order mentioned in Section 47...of the Code of Civil Procedure, 1908' - vide Sub-section (2) of Section 271, Tenancy Act. Thus, all that is required in cases governed by the Tenancy Act is that the order should be one mentioned in Section 47, Civil P.C., and the question whether the order does or does not amount to a 'decree' is irrelevant in such cases. The only question, therefore, that remains for consideration is whether the learned District Judge was right in holding that 'an order of dismissal for default does not relate to the execution, discharge or satisfaction of a decree' and that, therefore, such an order did not come within Section 47. The learned Judge has given no reason in support of his opinion, and, I am not able to see any reason why such an order as the one with which we are concerned here should not be a determination relating to the execution, discharge or satisfaction of the decree. It cannot be argued that the dismissal of an application for execution, on any ground other than default, does not amount to a determination relating to the execution, discharge or satisfaction of the decree. A dismissal of the application for execution negatives, at least for the time being, the right of the decree-holder to execute the decree. Does the fact that the dismissal is on the ground of default make it any the less a determination negativing the right of the decree-holder to execute the decree? I think not. Even in cases governed by the Code of Civil Procedure an order of dismissal for default passed in execution matters would have been open to appeal as a decree, on the ground that it was a determination within Section 47, but for the express exclusion in the definition of 'decree' mentioned above. In my judgment, the learned Judge was wrong in holding that the appeal preferred by the decree-holder in his Court did not lie. The learned Judge thus failed to exercise a jurisdiction vested in him by law. For the foregoing reason, I allow this revision petition, set aside the order of the learned District Judge and direct that the case be sent back to his Court with the direction that the appeal filed in that Court be reinstated to its original number and heard according to law. The costs of this revision petition will abide the result.


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