1. This is a civil revision by a plaintiff against an order in appeal remanding the case to the Small Cause Court of Benares. The plaintiff brought a suit on a promissory note dated 6th January 1935 for recovery of Rs. 946-8-6 and the Court found that the plaintiff was entitled to a decree. There were three defendants, members of a joint family, and they produced a copy of the Khatauni which showed that two of them were entered as tenants in 1935-36 (1343 F.) of an occupancy tenancy. The point was raised that defendant 3 was not an agriculturist as his name was not recorded. Both the Courts below have assumed that for the Act to apply to defendant 3, a reference is necessary to Section 2(2), Expln. 2. That is an error. The tenancy is held by the joint family and therefore the ease comes under Section 2(2)(f), i.e. a whole joint family which pays the rent for agricultural land not exceeding Rs. 500 per annum is an agriculturist. The rent in question is entered as Ks. 5 per annum. Expln. 2 is only required in the case of a joint family where the total rent is more than Rs. 500 per annum and then the different members may claim under Expln. 2 that their share is less than Rs. 500 and they would be agriculturists. But as Section 3, Chapter 2 is excepted from Expln. 2 they would not be agriculturists under that Explanation for the purpose of the present ease, i.e. for instalments at the time of passing a decree or under Section 5.
2. The point which has been raised before me by the appellant is that the application was made under Section 3 at the time of passing the decree, and not under Section 5 after the passing of the decree. This is borne out by the record. Now the Act does not provide any appeal from a refusal to grant instalments under Section 3. The Act presumes that in ordinary cases an appeal will lie against the decree itself and that that matter may then be raised in the Appellate Court. In the particular case before me, the decree was a decree of a Small Cause Court and therefore no appeal lay. This Ch. 2 only has provision for appeals from an order refusing to pass fixed instalments in a decree which was previously passed, that provision being in Section 5(2). The appeal provision in Section 23 is only for Ch. 3 and not for Ch. 2. The Court below therefore had no jurisdiction to pass the order in question and this order must be set aside.
3. I therefore allow this civil revision of the plaintiff and set aside the order of the lower Appellate Court. The facts show that the trial Court made an error and I am allowing Civil Revn. No. 409 of 1937 filed by the defendants and for this reason I do not grant the plaintiff the costs of this revision.