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Mubarik Hasan Vs. Ishri Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All451; 163Ind.Cas.971
AppellantMubarik Hasan
Respondentishri Prasad
Excerpt:
- .....and it means any order which so far as the revenue court is concerned finally disposes of a suit. when we take that definition and read it with the provisions of sections 242 and 248 of the act, it is clear that the intention of the act is that orders passed under section 47 shall be regarded as orders and not as decrees. the order passed by the district judge was therefore an order and no second appeal lies. i therefore reject the appeal.
Judgment:

Allsop, J.

1. This is a second appeal from an order passed in execution proceedings by the learned District Judge of Budaun. The appellant was a tenant and a decree was passed against him for arrears of rent in favour of the lambardar. Thereafter there was a partition in the mohal and the decree-holder ceased to be the landlord of the holding. He applied however under Section 79 for execution of his decree for arrears of rent by ejectment of the judgment-debtor, i.e., the appellant. He obtained an order from the Assistant Collector. The appellant appealed to the District Judge and his appeal was rejected. He has come in second appeal to this Court. The other party is not represented, but it seems to me that no appeal lies. Section 246, Agra Tenancy Act, says that an appeal shall lie to the High Court from the appellate decree of a District Judge on the grounds specified in Section 100, Civil P.C., If the order passed by the District Judge can be described as a decree no doubt a second appeal would lie. Section 249 of the Tenancy Act says that no appeal shall lie from any order passed in appeal. If the order of the District Judge is an order within the meaning of this section it is obvious that no second appeal does lie. Section 242 of the Act sets forth the circumstances in which an appeal shall lie from decrees passed in suits. Section 248 describes the circumstances in which appeals shall lie from orders. In this latter section it is laid down that an appeal shall lie from the following orders of an Assistant Collector of the first class or of a Collector, viz., orders mentioned in Sections 47 and 104, Civil P.C. An application under Section 79 is an application for the execution of a decree by ejectment. There is no doubt that the dispute between the parties was one in execution of the decree and the question was decided under the provisions of Section 47, Civil P.C. Under the provisions of that Code it would be a decree, but the term 'decree' is especially defined in Section 3(14), Agra Tenancy Act, and it means any order which so far as the revenue Court is concerned finally disposes of a suit. When we take that definition and read it with the provisions of Sections 242 and 248 of the Act, it is clear that the intention of the Act is that orders passed under Section 47 shall be regarded as orders and not as decrees. The order passed by the District Judge was therefore an order and no second appeal lies. I therefore reject the appeal.


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