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Maulvi Mohammad Abdul Aziz Vs. Maulvi Mohammad Abdul Jalil and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.371
AppellantMaulvi Mohammad Abdul Aziz
RespondentMaulvi Mohammad Abdul Jalil and ors.
Excerpt:
agra tenancy act (ii of 1901), section 177 - 'decree' meaning of, in section 177--civil procedure code (act xiv of 1882), section 54(d)--order of assistant collector reject-inn plaint--appeal. - .....conclusion that the order of the court of first instance rejecting the plaint did not, under the agra tenancy act, amount to a decree and was not appealable, dismissed the appeal. the plaintiff has preferred a second appeal to this court and it is contended by his learned advocate that an order rejecting a plaint is a decree and hence appealable. the learned advocate for the appellant argues that the full bench case of zohra v. mangulal 29 a. 753 : a.w.n. (1906) 223 : 3 a.l.j. 569 : (f.b.) is distinguishable from the case before me on the ground that the order in the full bench case was an order in execution proceedings, and that the present order is an order under section 54 of the code of 1882. he, on the authority of quinn v. leethen (1901) a.c. 495 (506) : 70 l.j. (p.c.) 76 : 65.....
Judgment:

Karamat Husain, J.

1. This appeal arises out of a suit, brought by one co-sharer against another for settlement of accounts. The Court of first instance returned the plaint for amendment. After granting several applications for extension of time, that Court acting under Section 54 of the Civil Procedure Code of 1882 rejected the plaint. On appeal, the lower appellate Court on the authority of Zohra v. Mangulal 29 A. 753 : A.W.N. (1906) 223 : 3 A.L.J. 569 : (F.B.), coming to the conclusion that the order of the Court of first instance rejecting the plaint did not, under the Agra Tenancy Act, amount to a decree and was not appealable, dismissed the appeal. The plaintiff has preferred a second appeal to this Court and it is contended by his learned Advocate that an order rejecting a plaint is a decree and hence appealable. The learned Advocate for the appellant argues that the Full Bench case of Zohra v. Mangulal 29 A. 753 : A.W.N. (1906) 223 : 3 A.L.J. 569 : (F.B.) is distinguishable from the case before me on the ground that the order in the Full Bench case was an order in execution proceedings, and that the present order is an order under Section 54 of the Code of 1882. He, on the authority of Quinn v. Leethen (1901) A.C. 495 (506) : 70 L.J. (P.C.) 76 : 65 J.P. 708 : 50 W.R. 139 : 85 L.T. 289 : 17 T.L.R. 749 says, that the rule laid down in Full Bench case ought to be confined to orders passed in execution proceedings and-ought not to be extended to orders passed by Assistant Collectors of the 1st class, in regular suits. The only reasoning, which may render the orders of Assistant Colloctors of the 1st class rejecting plaints under Section 54(d) of the Code of 1882 appealable, is the reasoning parallel to the one adopted by the two learned Judges of this Court in Kharag Singh v. Pole Ram 27 A. 31. That reasoning, however, did not commend itself to the three learned Judges of this Court who decided the Full Bench case of Zohra v. Mangu Lal 29 A. 753 : A.W.N. (1906) 223 : 3 A.L.J. 569 : (F.B.). Stanley, C. J. after quoting the reasoning of the learned Judges in the case of Kharag Singh 27 A. 31 remarks: 'I am wholly unable to accept this reasoning. In the first place Section 193 of the Agra Tenancy Act expressly provides that the provisions of the Code of Civil Procedure shall only apply so far as they are not inconsistent with that Act. To attach to the expression 'decree' as used in Section 177 of the Agra Tenancy Act, the meaning given to it in Section 2 of the Code of Civil Procedure, would be to do violence to the express and clear language of the Agra Tenancy Act. That Act, by Sections 176 and 177, draws a clear distinction between decrees and orders, and it is contrary, as it seems to me, to the proper rules of construction to attach to an order passed on an application for execution, the meaning which has been attached in the case under review. In view of the plain and unequivocal language of the Agra Tenancy Act, I am not able to accept the ruling in Kharag Singh v. Pole Ram 27 A. 31.'

2. Mr. Justice Knox in his judgment says: 'The definition given of 'decree' in Section 2 of the Civil Procedure Code, 1882, is as the learned Chief Justice has pointed out, inconsistent with the language used in Section 177 of the Agra Tenancy Act of 1901.'

3. Mr. Justice Aikman at p. 759 of his judgment says: 'With all deference to the opinion of the learned Judges who decided the case Kharag Singh v. Pole Ram 27 A. 31, I cannot agree with them in holding that the difficulty is got over by reference to Section 193 of the Act, first, because I hold that the provisions of the Code of Civil Procedure are in this respect inconsistent with the provisions of the Tenancy Act, and next, because the definition of 'decree' in the Code of Civil Procedure on which reliance is placed, relates only to decisions of a Civil Court and not to decisions of a revenue Court.

4. These remarks, no matter what my own personal views on the subject may be, are binding on me, and I, therefore, hold that the order passed by the Assistant Collector of the 1st class, rejecting the plaint under Section 54 Clause (d) of the Civil Procedure Code of 1882, was not appealable to the District Judge.

5. The result is that this appeal fails and is dismissed with costs, which in this Court will include fees on the higher scale.


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