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Satya Nidhan Banerji Vs. Md. Hazabbur Ali Khan - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Reported inAIR1932All47
AppellantSatya Nidhan Banerji
RespondentMd. Hazabbur Ali Khan
Excerpt:
- - assuming that section 249 is capable of another interpretation, we are clearly of opinion that in the absence of any provision in the tenancy act for an appeal from such an order no appeal would lie. as well as section 104 of that code have been made applicable in express terras to a particular class of orders passed by the subordinate revenue courts......as section 104 of that code have been made applicable in express terras to a particular class of orders passed by the subordinate revenue courts. the whole of order 43, rule 1, has not been made applicable. had the whole of that order been applicable by virtue of some other provisions of this act, there would have been no necessity to apply it in express terms in section 248, sub-section (3). it seems to us that the intention of the legislature was to lay down a self-contained code providing for appeals from orders in special cases, and that appeals from all other orders are excluded.4. reliance has been placed on section 284 which maizes the provisions of the civil procedure code applicable except those which are inconsistent with anything in this act so far as the inconsistency.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a defendant's appeal from an' order of the District Judge refusing to restore a revenue appeal which had been dismissed for default, A preliminary objection is taken that no appeal lies from the order. In two cases between the same parties Satya Nidhan Banerji v. Muhammad Hazabbur Ali Khan : AIR1931All533 , decided on 23rd December 1930, Mukerji and Bonnet, JJ. came to the conclusion that such an order was an 'an order passed in appeal' within the meaning of Section 249 and that therefore no further appeal lies to the High Court. The learned advocate for the appellant contends that the District Judge in dismissing the application for restoration was not passing an order in the appeal itself, but was disposing' of the matter which arose in his own Court and in respect of which an original application had been filed before him. Assuming that Section 249 is capable of another interpretation, we are clearly of opinion that in the absence of any provision in the Tenancy Act for an appeal from such an order no appeal would lie.

2. We may point out that a Full Bench of this High Court in Zohra v. Mangu Lal [1906] 28 All. 753, a case which arose under the old Tenancy Act, laid down that no appeal lay from the order as distinguished froth the decree of an Assistant Collector of the first class. This Full Bench case was followed by this Court in a number of cases in which it was that held that appeals from orders did not lie at all unless expressly provided in the Act.

3. We have corresponding provisions in the new Tenancy Act which lead to the same conclusion. Section 210 expressly fixes the appellate jurisdiction of Courts and lays down that no appeal shall lie froth any decree or order passed by a Court under this Act except as provided in this Act. It accordingly bars all appeals unless expressly provided. Sections 241 and 242 deal with appeals from original decrees Sections 243 to 246 deal with appeals from appellate decrees. Then begins a new heading. 'Appeals from orders' under which Sections 247, 248 and 249 appear. These sections deal with appeals from orders in special cases. It is noteworthy that Order 43, Rule 1, Civil P.C. as well as Section 104 of that Code have been made applicable in express terras to a particular class of orders passed by the subordinate Revenue Courts. The whole of Order 43, Rule 1, has not been made applicable. Had the whole of that order been applicable by virtue of some other provisions of this Act, there would have been no necessity to apply it in express terms in Section 248, Sub-section (3). It seems to us that the intention of the legislature was to lay down a self-contained Code providing for appeals from orders in special cases, and that appeals from all other orders are excluded.

4. Reliance has been placed on Section 284 which maizes the provisions of the Civil Procedure Code applicable except those which are inconsistent with anything in this Act so far as the inconsistency extends. The schema of the Code being a complete provision for appeals from specific orders, it would be inconsistent with the provisions of the Act to bring in the whole of Order 43, Civil P.C., or Section 104 so as to allow appeals in all other cases. Had the legislature intended to alter the law which prevailed previously, it would have said so in clear terms. On the other hand, it has provided for appeals from orders only in certain special cases. It is therefore a legitimate inference that all other orders which would have been appealable if passed in a civil suit have designedly not bean made appealable.

5. The last contention urged on behalf of the appellant is that this was not an order passed under the Tenancy Act and therefore Section 240 is not applicable. The answer to this contention is twofold. In the first place, even if the prohibition contained in Section 240 did not apply, there would be no absolute right of appeal unless it is provided for a right of appeal is a creature of statute. In the second place the provisions of the Civil Procedure Code under which the District Judge was acting and which wore not inconsistent with the provisions of the Tenancy Act are incorporated into the Tenancy Act by virtue of Section 264 of that Act. We are therefore unable to hold that when the District Judge refused to restore a revenue appeal which he had dismissed for default his order was an order passed under some Act other than the Agra Tenancy Act. The result therefore is that the preliminary objections' must prevail. No appeal lies and it is accordingly rejected with costs.


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