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Sahu Nand Kishore Vs. L. Makhan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All192
AppellantSahu Nand Kishore
RespondentL. Makhan Lal
Excerpt:
- - from what i have said above it follows that the preliminary objection is well founded and i hold that no second appeal lies......an ex parte decree against the appellant before me in a revenue court. he tried to put that decree in execution when the judgment-debtor objected that there was no decree which was capable of execution. the assistant collector overruled this objection and allowed execution to proceed. the judgment-debtor appealed but the district judge agreed with the view of the assistant collector and dismissed the appeal.2. the judgment-debtor has come up in second appeal to this court. a preliminary objection has been taken on 'behalt of the respondent to the effect that no second appeal lies. there cannot be the slightest doubt that the orders passed by the courts below were under section 47, civil p.c., and under the agra tenancy act such orders are not decrees. a decree under section 3,.....
Judgment:

Bajpai, J.

1. The opposite party before me obtained an ex parte decree against the appellant before me in a Revenue Court. He tried to put that decree in execution when the judgment-debtor objected that there was no decree which was capable of execution. The Assistant Collector overruled this objection and allowed execution to proceed. The judgment-debtor appealed but the District Judge agreed with the view of the Assistant Collector and dismissed the appeal.

2. The judgment-debtor has come up in second appeal to this Court. A Preliminary objection has been taken on 'behalt of the respondent to the effect that no second appeal lies. There cannot be the slightest doubt that the orders passed by the Courts below were under Section 47, Civil P.C., and under the Agra Tenancy Act such orders are not decrees. A decree under Section 3, Clause 14 has been defined as an order which so far as the Revenue Court is concerned finally disposes of a suit. 'An order' under Section 47, Civil P.C., cannot therefore come within the definition of a decree as given in the Agra Tenancy Act. This becomes further clear by a consideration of the provisions in the Tenancy Act regarding appeals. Section 240 says that no appeal shall lie from any decree or order except as provided in the Act. Sections 241 and 242 deal with appeals from original decrees. Sections 243, 244, 245 and 246 deal with appeals from appellate decrees. Sections 247 and 248 deal with the appeals from orders and it is only in Section 248, Sub-Clause 3 that an appeal has been provided from orders mentioned in Section 47, Civil P. C. This, as I said, goes to show that an order passed under Section 47, Civil P.C., is not a decree within the Tenancy Act, but is only an order which has been made appealable by Section 248, Clause 3 and only one appeal has been provided for, because it is definitely mentioned in Section 249, Tenancy Act, that no appeal shall lie from any order passed in appeal. From what I have said above it follows that the preliminary objection is well founded and I hold that no second appeal lies. The execution second appeal is therefore dismissed with costs. Leave to file an appeal by way of Letters Patent is refused.

3. It was then prayed that I should treat this as a revision. I do not think the circumstances of the case which I have heard at length are such as would justify this Court in treating these proceedings as revision and interfering.


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