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Narsingh Dube Vs. Mt. Dhanesra Kuer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1944All247
AppellantNarsingh Dube
RespondentMt. Dhanesra Kuer
Excerpt:
- .....within the time fixed. the landlord applicants were dissatisfied and filed an appeal before the learned district judge against the order of 4th may 1940. the learned district judge allowed the appeal on 3lst august 1942, and held that the objection should not have been entertained. it is against that order of the learned district judge that this revision has been filed.3. learned counsel appearing for narsingh dube and another has urged that no appeal lay before the district judge of ghazipur and the district judge had, therefore, no jurisdiction to set aside the order of the learned special judge. the appeal was filed before the district judge under section 45(2), encumbered estates act, and the arguments advanced are based on the ground that the words in section 45 are that an.....
Judgment:
ORDER

Malik, J.

1. This revision has been filed by Narsingh Dube and Jagdish Narain Dube, objectors, in a proceeding under the Encumbered Estates Act. Mt. Dhanesra Kuer and others filed an application under the Encumbered Estates Act which in due course was sent to the learned Special Judge, 2nd grade, Ghazipur under Section 6 of the Act. Notices under Section 8, Encumbered Estates Act, were published on 11th December 1936. After the publication of the said notices the present applicants put in an objection on 27th May 1937, under Sections 9 and 10, Encumbered Estates Act. Under Section 9 they claimed that they were creditors of the landlord applicants and set out the details of the amount due. Under Section 10 they alleged that five fixed-rate tenancy plots in village Chandipur had been purchased by them under a registered sale deed dated 12th November 1935, and they were the owners of the said plots. On 11th September 1937, fresh notices were published under Section 11, Encumbered Estates Act, but no fresh objection was filed by the objectors Narsingh Dube and Jagdish Narain. On 11th December 1937, the learned Special Judge passed an order that no objection had been filed to the list of properties published under Section 11 in the gazette and he fixed 7th February 1938, for determination of the amount due to the creditors under Section 14 of the Act.

2. On 7th February 1938, the objectors Narsingh Dube and another filed an objection reiterating their claim to the five fixed-rate plots on the same ground as set out by them in their objection filed on 27th May 1937. This objection was rejected on the same date as time barred. After the rejection of this application there were certain amendments made in the U.P. Encumbered Estates Act and as a result of those amendments if a party could make out sufficient cause the learned Special Judge was Authorized to receive such application and proceed to decide it on the merits. The objectors filed a fresh application on 21st November 1939, after the amendment. On 4th May 1940, the learned Special Judge held that the objectors had made out sufficient cause for the delay and the objection was to be received on payment of Rs. 12 and disposed of on the merits. The said sum of Rs. 12 was paid within the time fixed. The landlord applicants were dissatisfied and filed an appeal before the learned District Judge against the order of 4th May 1940. The learned District Judge allowed the appeal on 3lst August 1942, and held that the objection should not have been entertained. It is against that order of the learned District Judge that this revision has been filed.

3. Learned Counsel appearing for Narsingh Dube and another has urged that no appeal lay before the District Judge of Ghazipur and the District Judge had, therefore, no jurisdiction to set aside the order of the learned Special Judge. The appeal was filed before the District Judge under Section 45(2), Encumbered Estates Act, and the arguments advanced are based on the ground that the words in Section 45 are that an appeal can be filed only against an order finally disposing of the case. Learned Counsel has argued that even if his objection be taken as a case it had not been finally disposed of. Only one issue had been decided and it had been held that his objection was within time. No decision on the merits had so far been given by the learned Special Judge. A preliminary objection has been raised on behalf of the landlord applicants Mt. Dhanesra Kuer and others that no revision lies to this Court. Learned Counsel appearing for the opposite party has urged that no revision lies under Section 115, Civil P.C., as an appeal lay to this Court under Section 45(2a), Encumbered Estates Act. He then contends that no revision lies to this Court under Section 46, Encumbered Estates Act, either as the requirements of that section have not been fulfilled. As regards the first objection, an appeal under Section 45(2a) shall lie to this Court only if the order of the learned District Judge was an order passed under Section 45. If no appeal lay to him under Section 45 and he had wrongly assumed jurisdiction and entertained the appeal, to my mind, a revision under Section 115, Civil P.C. is entertainable. The words 'finally disposing of the case' have been introduced in Section 45 by an amendment of the year 1939, and, to my mind, it is clear that it is not every order against which an appeal can be filed but only an order which finally disposes of the case. I agree with learned Counsel for the opposite party that a case need not be treated as the whole of the proceeding under the Encumbered Estates Act pending before the learned Special Judge, but objections by different parties when disposed of under Section 11 or Section 14 may each be treated as separate cases. The word 'case' occurs in Section 115, Civil P.C., and it has given rise to considerable conflict of judicial opinion as to what it really means. I will, therefore, not attempt to give any comprehensive definition of the word 'case', but, to my mind, the proceedings started by the objection of Narsingh Dube and Jagdish Narain can be taken to be a separate case, but even if this is the case, I cannot say that this has been finally disposed of. All that has-happened is that the preliminary issue as regards limitation has been decided, in favour of Narsingh Dube and Jagdish Narain. Their objection as regards title to the property has not yet been determined under Section 11. In that view of the case no appeal lay to the learned District Judge.

4. Learned Counsel for Mt. Dhanesra, Kuer has urged that the decree dated 11th December 1937, had been vacated, and he has relied on two Full Bench decisions of this Court reported in Ram Sarup v. Gaya Prasad : AIR1925All610 and Radha Mohan Datt v. Abbaa Ali Biswas : AIR1931All294 . That an order setting aside an ex parte decree was a case decided. So far as I can see there was no decree passed on 11th December 1937. A decree under Section 11, Encumbered Estates Act, has only to be passed when an objection is filed and is decided. When there is no objection filed by anybody then I do not think the Special Judge is required under Section 11 to pass any decree. The order of 11th December 1937 cannot, therefore, be considered to be a decree at all. All that the learned Judge did was to fix a date for decision of the claims under Section 14 and he made a reference to the fact that no objections had been filed under Section 11 because he could only proceed to consider the claims under Section 14 after he had disposed of the objections under Section 11. That is provided for in Section 11, Sub-clause (3). In my view, therefore, no appeal lay to the District Judge under Section 45 and he had no jurisdiction to set aside the order of the learned Special Judge, and in that view of the matter a revision is competent to this Court under Section 115, Civil P.C.

5. In the view that I have taken that Section 115, Civil P.C., applies it is not necessary to consider whether Section 46, Encumbered Estates Act, is applicable. The language of Section 46 is much wider than that of Section 115, Civil P.C., and Section 46 does not require that revisions can be entertained only against such orders against which no appeal lies. Mr. Shambhu Prasad has, however, contended that Section 46 is not applicable as an appeal lay only to the learned District Judge and only a second appeal lay to this Court and according to him the section contemplated only one revision and in cases where the appeal lies to the District Judge the revision has to be filed in his Court and where the appeal lies to this Court then only can this Court entertain a revision under that section. Ordinarily an appeal would include a second appeal. It appears very anomalous that if the learned District Judge had on an appeal under Section 45, Encumbered Estates Act passed an order this Court could under Section 45(2a) entertain a second appeal and interfere, but if the learned District Judge passed the same order under Section 46 then that order should be deemed to be final. Even if the word 'appeal' is interpreted to include a second appeal also, the difficulty arises from the fact that it is provided that an order passed by the District Judge 'under Section 46 shall be final under the provisions of that section and no second revision under Section 46 can, therefore, be entertained. This Court, however, in a Division Bench case reported in Ashraf v. Saith Mal : AIR1938All47 has held that the word 'final' only bars a remedy by way of appeal and not by way of revision under Section 115, Civil P.C. If that view be accepted, then of course, in spite of the language of the said section, this Court can entertain a second revision under Section 46 or a revision under Section 115, Civil P.C. It is not, however, necessary for me to give a final decision on this point in this case as in my view a revision does lie under Section 115, Civil P.C. In the view that I have taken that the learned District Judge had no right to set aside the order of the learned Special Judge I allow this revision, set aside the order of the learned District Judge and restore that of the learned Special Judge, 2nd grade, Ghazipur. The costs of the lower appellate Court and this Court will abide the event.


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