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Kr. Sri NaraIn Dubey Vs. Kr. Ram NaraIn Dubey and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All624a
AppellantKr. Sri NaraIn Dubey
RespondentKr. Ram NaraIn Dubey and anr.
Excerpt:
- this is an execution second appeal brought by the judgment-debtor against an appellate order of the district judge dismissing an appeal from the order of the assistant collector dismissing the objection of the judgment-debtor. under section 249, agra tenancy act, act 3 of 1926, no appeal shall lie from any order passed in appeal. the second appeal therefore cannot lie. learned counsel argued that this second appeal should be treated sis a first appeal from the order of the assistant collector. that order was passed dismissing an objection to the sale in execution of a decree. the original suit was valued at over rs. 5,000 and according to section 248(3) an appeal from the order of the assistant collector lay to this court. the judgment-debtor however by mistake brought an appeal in the.....
Judgment:

This is an execution second appeal brought by the judgment-debtor against an appellate order of the District Judge dismissing an appeal from the order of the Assistant Collector dismissing the objection of the judgment-debtor. Under Section 249, Agra Tenancy Act, Act 3 of 1926, no appeal shall lie from any order passed in appeal. The second appeal therefore cannot lie. Learned Counsel argued that this second appeal should be treated sis a first appeal from the order of the Assistant Collector. That order was passed dismissing an objection to the sale in execution of a decree. The original suit was valued at over Rs. 5,000 and according to Section 248(3) an appeal from the order of the Assistant Collector lay to this Court. The judgment-debtor however by mistake brought an appeal in the Court of the District Judge, and after that appeal was dismissed he became aware that the appeal did not lie to the District Judge and therefore he made the present second appeal to this Court alleging that the District Judge had no jurisdiction. At the same time apparently he made a first appeal to this Court from the order of the Assistant Collector. That first appeal was heard by a Bench of this Court and rejected on 19th June 1931, on the ground that the appeal was time-barred. Learned Counsel has now argued that by some process we should treat his present execution second appeal as a first appeal and in some way that we should ignore the fact that a Bench of this Court has already rejected a first appeal, on this point. We consider that the order of the Bench rejecting the first appeal is final and that that order exhausts the jurisdiction of this Court and that another first appeal will not lie to this Court from the same order of the Assistant Collector. Learned Counsel argues that we should invoke the powers of this Court under Section 151, Civil P.C., and Section 107, Government of India Act. Whether such powers would exist in the present case there is no doubt that the exercise of such powers is a matter of discretion. In regard to the first appeal a first appeal did lie to this Court, and therefore we consider that it would be improper to exercise the powers under Section 151, Civil P.C. where there is a special procedure provided by another part of that Code. As these powers are matters of discretion we consider that we should not exercise them in this case. As regards the question of revision, a revision is barred firstly because an appeal lay from the order of the Assistant Collector and secondly because the list 1 of Schedule 2, Tenancy Act, states their Section 115, Civil P.C. is barred from that Tenancy Act. We consider that we have no jurisdiction to interfere in this matter and accordingly we dismiss this execution, second appeal with costs.


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