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Badam Singh and ors. Vs. Mt. Kasturi Kunwar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All605
AppellantBadam Singh and ors.
RespondentMt. Kasturi Kunwar
Excerpt:
- - 6. even if an execution second appeal would lie to the high court in these circumstances, the view of the district judge on the merits was perfectly correct. i am clearly of opinion that this contention is well founded and ought to be sustained. it is clear (therefore that the order passed by the [learned district judge in appeal is [clearly not open to appeal under the [provisions and the general scheme of the agra tenancy act. section 253 is clearly inapplicable. i am clearly of opinion that no second appeal lies......founded and ought to be sustained.8. under order 43, clause (w), civil p.c., an order granting a review passed by a court of civil jurisdiction in a civil suit is open to appeal within the limits imposed by order 47, rule 7, civil p.c. section 248, clause (3), agra tenancy act (act 3 of 1926) provides thatan appeal shall lie from the following orders of an assistant collector of the first class or of a collector, namely, orders mentioned in sections 47 and 104 and in order 43, r .1, civil p. c. 1908...such appeal shall lie to the court, if any, having jurisdiction under section 242 of this act to hear an appeal from the decree in the suit or in the case of application for execution, the court having jurisdiction to hear an appeal from the decree which is being executed.9. under section.....
Judgment:

Sulaiman, Ag. C.J.

1. This is an appeal by the judgment debtor objectors arising out of a suit in the revenue Court for arrears of rent. Part of the amount of the decree had remained unpaid, and the Assistant Collector on 25th June 1928 ordered the ejectment of the objectors. On 6th August 1928 they applied for a review of the order, but the application was not based on the discovery of any new and important matter, but merely on the ground of hardship; and the application was also made not to the Assistant Collector who had previously ordered their ejectment but to his successor-in-office. This application was finally allowed and the previous order for ejectment was set aside. By the same order the new Assistant Collector directed that the applicants would pay interest for the period of the execution together with costs. The decree-holder filed an appeal before the District Judge who overruled the objection that no appeal lay to him and set aside the order of the new Assistant Collector granting the review.

2. A first appeal from order has been preferred from the order of the District Judge. A preliminary objection is taken on behalf of the respondent that no appeal lies. The learned advocate for the applicants replies that, if no appeal lies, their appeal may be treated as a revision and the order of the District Judge be set aside on the ground of want of jurisdiction. It was held by a Bench of which I was a member in Jagdeo Singh v. Kesho Prasad Singh : AIR1929All735 that under the new Tenancy Act no revision lies from an order of the District Judge disposing of a revenue appeal. The result may be very unfortunate inasmuch as the District Judge may in some cases act without jurisdiction; nevertheless the High Court would be powerless and would be unable to interfere. This was the view held by a Full Bench of this Court under the old Tenancy Act. The position has become clearer in view of the fact that Section 115, Civil P. C, has been expressly excluded under Schedule 2 attached to the new Tenancy Act. This however is a matter for the legislature to consider.

3. It is also quite clear that, if the order passed by the Assistant Collector was an appealable order, there would be no further appeal to the High Court from the order passed in appeal by the District Judge. Section 249 expressly provides that no appeal shall lie from an order passed in appeal. It is therefore obvious that, if the order of the new Assistant Collector was an order granting a review under Order 47 read with Order 43, Rule 1 (w), then an appeal certainly lay under Section 248, Sub-clause (3). Such appeal would lie to the Court having jurisdiction under Section 242 to hear an appeal from the decree in the suit. As the valuation of the suit for arrears of rent was above Rs. 200, the appeal would have ordinarily lain'to the District Judge (Sch. 4. group A, serial No. 1). There is a further difficulty in the way of the objectors, viz., that there would be no appeal from the order passed by the District Judge on appeal.

4. It has however been urged that the order passed by the Assistant Collector was an order under Section 47, Civil P.C. and was therefore in the nature of a decree, and the order passed in appeal by the District Judge was also a decree with the result that a second appeal lies to this High Court. It is prayed that the description of the appeal may be altered and it may be treated as an execution second appeal. The word decree' has been defined in Section 3, Sub-section (14), Tenancy Act, as meaning any order which, so far as a revenue Court is concerned, finally disposes of a suit. The words are not identical with the definition of 'decree'' in the Civil Procedure Code, but it cannot by any stretch of the language be made applicable to an order of review.

5. No doubt the latter portion of the order of the District Judge directing the applicant to pay interest with costs might be said to be a distinct order, separate from and independent of the order setting aside the previous order for ejectment. Treating it in that light it is possible to contend that that portion of the order was one under Section 47. But even if that be so, an appeal undoubtedly lay to the District Judge as provided in Section 248 Sub-section (3). The Judge had therefore jurisdiction to entertain it.

6. Even if an execution second appeal would lie to the High Court in these circumstances, the view of the District Judge on the merits was perfectly correct. It not being a case of a discovery of a new and important matter, the application made to the successor-in-office should not have been entertained by him. His order granting review was in direct contravention of the provisions of Order 47, Rule 2 and was rightly set aside by the District Judge. I would therefore dismiss this appeal with costs,

Sen, J.

7. Badam Singh, Pohap Singh and Anand Singh were the occupancy tenants of certain holdings of which Mt. Kasturi was the landholder. The latter sued the former for arrears of rent and obtained a decree for Rs. 360. The judgment-debtors paid Rs. 150 towards part satisfaction of the decree. The decree-holder took out execution of the decree for the balance and ejected the judgment-debtors on 25th June 1928. On 6th August 1928, the judgment-debtors applied to the Assistant Collector for review of judgment. As has been noticed by the learned Chief Justice the application for review was made not to the Assistant Collector who originally tried the suit but to his successor-in-title, and the sole ground oh which the review was sought was that the order was. calculated to work hardship upon the judgment-debtors. The application for review was granted on 18th September 1928. The Court not only granted the review but did something more, inasmuch as it not only set aside the order of ejectment dated 25th June 1928, but ordered that the judgment-debtors should pay interest for the period of execution together with costs incurred by the decree-holder in the course of the execution proceedings. An appeal was preferred to the District Judge. A preliminary objection was taken upon the ground that no appeal lay. This objection was overruled. The learned District Judge held that an appeal lay to him. He overset the decision of the trial Court with the result that the order granting the review was set aside. An appeal has been presented to this Court from the order of the District Judge setting aside the order of the Assistant Collector granting review of judgment. It has been argued on behalf of the respondents that no appeal lies to this Court. I am clearly of opinion that this contention is well founded and ought to be sustained.

8. Under Order 43, Clause (W), Civil P.C., an order granting a review passed by a Court of civil jurisdiction in a civil suit is open to appeal within the limits imposed by Order 47, Rule 7, Civil P.C. Section 248, Clause (3), Agra Tenancy Act (Act 3 of 1926) provides that

An appeal shall lie from the following orders of an Assistant Collector of the first class or of a Collector, namely, orders mentioned in Sections 47 and 104 and in Order 43, R .1, Civil P. C. 1908...Such appeal shall lie to the Court, if any, having jurisdiction under Section 242 of this Act to hear an appeal from the decree in the suit or in the case of application for execution, the Court having jurisdiction to hear an appeal from the decree which is being executed.

9. Under Section 264, Act 3 of 1926, only certain provisions of the Civil Procedure Code are made applicable to suits and proceedings under the Agra Tenancy Act. For instance, provisions which have been set out in list 1, Schedule 2 are not applicable. Similarly it has been provided that provisions inconsistent with anything in this Act so far as the inconsistency extends are not applicable to suits and proceedings under the Act. Order 43, Rule 1, Clause (w), has not been incorporated or adopted in the Agra Tenancy Act, except within the limits recognized by Section 248, Clause (3). Only certain orders are appealable under the Act.. These orders have been referred to in Sections 247 and 248 and embrace only such orders as are passed by a subordinate revenue Court and are appealable to a revenue Court of a higher jurisdiction. Sections 240 and 249 are restrictive. Section 240 provides that no appeal shall lie from any decree or order passed by any Court under this Act except as provided in this Act. Section 249 provides that no appeal shall lie from any order passed in appeal. It is clear (therefore that the order passed by the [learned District Judge in appeal is [clearly not open to appeal under the [provisions and the general scheme of the Agra Tenancy Act. Where therefore a [District Judge entertains and allows an appeal from an order passed by a revenue Court granting an application for review of judgment in certain ejectment proceedings under the Tenancy Act, no appeal lies to this Court, from the order of the District Judge, under the Agra Tenancy Act (Act 3 of 1926).'

10. It has been next contended that the order of the District Judge is open to revision under Section 253, Tenancy Act, and the appeal should be treated as an application for revision. Section 253 is clearly inapplicable. It is not the order of a. subordinate revenue Court which is sought to be challenged in revision on any of the grounds enumerated in Section 253, but it is the order of the District Judge. The District Judge is not a subordinate Court within the meaning of this section and no revision has been prescribed from his order. This Court therefore cannot interfere in revision. The language of the section as it stands may create serious anomalies but the remedy lies with the legislature and not with this Court.

11. The applicants next contend that the order of the Assistant Collector dated 18th September 1928 must be taken to be an order passed in the course of the execution proceedings under Section 47, Civil P.C. and as such amounts to a decree. The term ' decree' has been defined in Section 3, Clause (14) of the Act, and means any order which so far as the revenue Court is concerned finally disposes of a suit. The order granting a review of judgment does not come under this definition and cannot be treated as a decree. It may be permissible to argue that the second part of the order which imposes certain terms upon the judgment-debtors may amount to a decree. The point is not entirely free from doubt or difficulty, and I express no opinion on the point. But conceding that this amounts to a decree, this does not benefit the applicant for the simple reason that the order setting aside the decree passed by the trial Court cannot be treated as a decree. I am clearly of opinion that no second appeal lies. I would therefore dismiss this appeal.


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