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Abdul Wahab Khan and anr. Vs. Ibrahim Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All260
AppellantAbdul Wahab Khan and anr.
Respondentibrahim Khan and ors.
Excerpt:
- - narotam das (1906) 29 all 69 that no third appeal will lie to the high court from a decree on the district judge passed on appeal from an appellate decree of the collector under the provisions of the agra tenancy act, 1901. the reason for the decision was that when the legislature had clearly laid down that a second appeal should lie to the high court from the appellate decree of the district judge, it was clearly intended that no third appeal should lie......raises a question whether a third appeal lies to the high court against the decree of a district judge passed in a second appeal against the appellate decree of a collector. the appeal arises out of a suit for arrears of irrigation dues amounting to rupees 172-5-0, and was brought against the heirs of one sughra begam, who was said to be a tenant of the plaintiff.2. the suit was defended on a number of grounds, which we need not specify for the purpose of disposing of the point in issue. the suit was decreed for a sum of rs. 169-2-6 by an assistant collector of the second class on 21st february 1929. the defendants appealed to the collector, who dismissed the appeal on 20th june 1929. the defendants appealed a second time to the district judge, who dismissed their appeal on 7th january.....
Judgment:

King, J.

1. This reference to a Full Bench raises a question whether a third appeal lies to the High Court against the decree of a District Judge passed in a second appeal against the appellate decree of a Collector. The appeal arises out of a suit for arrears of irrigation dues amounting to Rupees 172-5-0, and was brought against the heirs of one Sughra Begam, who was said to be a tenant of the plaintiff.

2. The suit was defended on a number of grounds, which we need not specify for the purpose of disposing of the point in issue. The suit was decreed for a sum of Rs. 169-2-6 by an Assistant Collector of the Second Class on 21st February 1929. The defendants appealed to the Collector, who dismissed the appeal on 20th June 1929. The defendants appealed a second time to the District Judge, who dismissed their appeal on 7th January 1930. The defendants then instituted this third appeal in the High Court against the appellate decree of the District Judge, and the question is whether the appeal is competent.

3. An appeal from the decree of the Assistant Collector of the Second Class lay to the Collector, in accordance with the terms of Section 241, Agra Tenancy Act of 1926. An appeal from the appellate decree of the Collector lay to the District Judge, if the conditions laid down in Section 243 were fulfilled. It is unnecessary for us to consider whether those conditions were, in fact, fulfilled. The District Judge entertained and decided the appeal. Section 246 is the section which governs the question whether a third appeal lies to the High Court in the circumstances mentioned above. This section enacts that

an appeal shall lie to the High Court from the appellate decree of a District Judge on any of the grounds specified in Section 100, Civil P.C. 1908.

4. It must be observed that the words used in this section are 'the appellate decree' and the expression 'appellate decree' would apply equally to a decree passed by the District Judge in first appeal or to a decree passed by him in second appeal. In our opinion the language of this section is certainly wide enough to authorize an appeal to the High Court from a decree passed by a District Judge in second appeal, because such a decree would undoubtedly be an 'appellate decree.' Our conclusion on this point is fortified by1 a reference to the language of the Agra Tenancy Act, 1901. In that Act the question of appeals to the High Court from decrees of District Judge was governed by the terms of Section 182. This section provided:

A second appeal shall lie to the High Court from the decree in appeal of a District Judge in accordance with the provisions of Ch. 42, Civil P.C.

5. The important point to observe is that this section uses the expression 'second appeal.' For that very reason it has been held in Lachmi Narain v. Narotam Das (1906) 29 All 69 that no third appeal will lie to the High Court from a decree on the District Judge passed on appeal from an appellate decree of the Collector under the provisions of the Agra Tenancy Act, 1901. The reason for the decision was that when the Legislature had clearly laid down that a second appeal should lie to the High Court from the appellate decree of the District Judge, it was clearly intended that no third appeal should lie. The omission of the word 'second' from Section 246, Tenancy Act, 1926, is in our opinion, very, significant. It seems to suggest that the Legislature deliberately intended to allow third appeals to the High Court in certain cases, that is to say they intended that there should be a third appeal to the High Court from an appellate decree passed by a District Judge under Section 243. Whether that was the intention of the Legislature or not, we think it is clear that the words 'appellate decree' in Section 246 cannot be construed to mean a decree passed in first appeal only. The words are undoubtedly applicable also to a decree passed in second appeal.

6. We therefore answer the question referred to us in the affirmative.


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