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Dharam Singh Vs. Thakur Tikam Singh - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1938All124
AppellantDharam Singh
RespondentThakur Tikam Singh
Excerpt:
- .....collector set aside the original order of ejectment. the respondent went up in appeal to the learned district judge against the order of the learned assistant collector allowing review of the order of ejectment. a preliminary objection was taken before the learned district judge that no appeal lay. the learned district judge seems to be of the opinion that no appeal against the order of review lay under order 47, rule 7. but he treated the order as one setting aside ejectment under section 47, civil p.c., and as such appealable. he allowed the appeal and set aside the order of the learned assistant collector setting aside the ejectment. the judgment-debtor has come here in second appeal against this order. a preliminary objection has been taken on behalf of the respondent that no.....
Judgment:

Ganga Nath, J.

1. This is a judgment-debtor's appeal and arises out of execution proceedings taken out against him by the decree-holder opposite party under the Tenancy Act. The respondent sought the ejectment of the appellant in execution of his decree for arrears of rent. The execution Court ordered the ejectment of the appellant, Thereafter the appellant applied for review of the order of ejectment and the learned Assistant Collector set aside the original order of ejectment. The respondent went up in appeal to the learned District Judge against the order of the learned Assistant Collector allowing review of the order of ejectment. A preliminary objection was taken before the learned District Judge that no appeal lay. The learned District Judge seems to be of the opinion that no appeal against the order of review lay under Order 47, Rule 7. But he treated the order as one setting aside ejectment under Section 47, Civil P.C., and as such appealable. He allowed the appeal and set aside the order of the learned Assistant Collector setting aside the ejectment. The judgment-debtor has come here in second appeal against this order. A preliminary objection has been taken on behalf of the respondent that no second appeal lies to this Court. Section 249 of the Agra Tenancy lot is very clear on this point. It says : 'No appeal shall lie from any order passed in appeal.' Under the Agra Tenancy Act an order passed under Section 47, Civil P.C. is not a decree but remains an order. The definition of 'decree' given in Section 2, Clause (2) in the Civil P.C., which includes the determination of any question within Section 47, Civil P.C. does not apply to the Agra Tenancy Act. Under the Agra Tenancy Act, a 'decree' as defined in Section 3, Clause (14) means any order which, so far as the Revenue Court is concerned, finally disposes of a suit. It does not include the determination of any question within Section 47, Civil P.C. Consequently no second appeal would lie from an order passed under Section 47, Civil P.C., under the Tenancy Act. It has been urged on behalf of the a appellant that a second appeal would lie inasmuch as the learned District Judge assumed jurisdiction which he did not possess. The argument is that the appeal to the learned District Judge was not from any order passed under Section 47, Civil P.C., but was from an order allowing the application for review. As the case did not fall under Order 47, Rule 7 no appeal lay. The learned District Judge was not right in treating the f1, order as one passed under Section 47, Civil P.C., and entertaining the appeal. He therefore acted without jurisdiction. The question is whether even if it were so, a second pr appeal would lie. The learned Counsel has no relied on Hira Lal v. Tikam Singh : AIR1926All401 , Nand Kishore v. Dhanpat Rai : AIR1932All49 and Khim Chand v. Keshar Singh : AIR1933All403 . In Hira Lal v. Tikam Singh : AIR1926All401 an order passed under Section 47 was treated by the lower Appellate Court as a decree and an appeal was entertained by it. It was observed there:

If the lower Appellate Court has assumed jurisdiction and passed an order on appeal, a second appeal will lie. If no appeal lay to the lower he Appellate Court, and it has acted on an assumed or jurisdiction the High Court has power in revision to revise that order.

2. In Nand Kishore v. Dhanpat Rai : AIR1932All49 an objection was treated by the lower Appellate Court as one under Section 47. It was held:

Where the lower Court disallows objection in execution of a decree, treating it as being one under Section 47, an appeal lies to the High Court, even if it is ultimately held that the proceedings were not properly started under Section 47.

3. In Khim Chand v. Keshar Singh : AIR1933All403 an appeal was filed in the Court of the District Judge from an order of the Assistant Collector dismissing an execution application. On the appeal being dismissed by the learned District Judge, a second appeal was filed in this a Court. The appeal from the order of the Assistant Collector lay to the Deputy Commissioner and not to the District Judge. It was held:

That a second appeal to the High Court would certainly lie in so far as the District Judge assumed a jurisdiction he did not possess.

4. In all these oases, as treated by the lower Appellate Courts, a second appeal was allowed under the statute. If the lower Court assumes jurisdiction in a matter treating it as one in which a second appeal is allowed under the statute, there can be no doubt that a second appeal would lie to this Court and this Court could correct the mistake of the lower Court. But, in my opinion no second appeal lies in a case which, as treated by the lower Court, is one in which the statute expressly prohibits a second appeal. If a second appeal were allowed in cases in which the statute prohibited expressly a second appeal on the mere ground that the lower Appellate Court assumed jurisdiction which it did not possess, it would be acting in contravention of the express provisions of the statute. There will be no such difficulty in cases where a second appeal is allowed. In Gobardhan Das v. Dau dayal : AIR1932All273 it was observed by Mukerji J.:

At the outset, it seems to be clear to me that no second appeal lay to the High Court, as the case arose out of a suit foe profits heard by a Revenue Court. The Agra Tenancy Act of 1926 by Section 249 disallows an appeal from an appellate order. By Section 248, Agra Tenancy Act, an appeal to the District Judge is allowed In the case of an execution of a decree for profits, but by Section 249 no further appeal is allowed. By Section 264, Agra Tenancy Act, 1926, the Civil Procedure Code la to apply to the Revenue Courts with certain exceptions, and one of the exceptions is 'provision inconsistent with anything in this Act, be far as the inconsistency extends'. To allow a second appeal from the order of the District Judge in this case, on the ground that the order passed by the District Judge was a decree within the meaning of Section 2, Civil P.C. would be inconsistent with the dear provision of Section 249. I hold therefore that no second appeal lay to this Court.

5. This applies with full force to the facts of the present ease. I therefore find that no second appeal lies. It is therefore ordered that the appeal be dismissed with costs. Permission for Letters Patent appeal is refused.


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