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Matllob Hasan and ors. Vs. Mt. Kalawati and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All57a
AppellantMatllob Hasan and ors.
RespondentMt. Kalawati and ors.
Excerpt:
- - were clearly wrong, and that they did not act in conformity with the provisions of section 111 (2) for the case was not dealt with in accordance with the decision of the civil court as there had been no final decision of the civil court. order 39, rule 1 has no application to the facts of this case, and it is clearly not a case in which the exercise of any 'inherent powers' could be contemplated......then under section 112 the high court could have issued a precept to the collector desiring him to stay partition pending the decision of an appeal against the decree. it is argued that if the high court can stay the partition pending an appeal against the assistant collector's decision it would be very anomalous if the high court cannot stay the partition pending an appeal against the civil court's decision. i grant that the position does seem anomalous. i do not know why the legislature has thought fit to empower the high court to stay the partition in the former case only, and not in the latter. the reasons for staying partition might be equally cogent in either case.2. in the case of ram charitra v. mohan dei a.i.r. 1923 all. 210 ryves, j., expressed the view that the revenue court.....
Judgment:

King, J.

1. This is an application for stay of further proceedings in a partition case pending before an Assistant Collector of Moradabad. In this case it appears that an objection was made involving a question of proprietary title, and the Court took action under Section 111 (1) (b), Land Revenue Act of 1901, and required the applicant for partition to institute within three months a suit in the civil Court for the determination of such question. The applicant for partition accordingly did institute a suit in the civil Court and got a declaration of title in her favour. An appeal from this civil Court decree has been filed and is now pending before the High Court. Meanwhile the Assistant Collector is continuing the partition proceedings in accordance with Section 111 (2), that is to say, he is dealing with the case in accordance with the decision of the civil Court, i. e., the civil Court of first instance. The appellant before this Court prays that the partition proceedings in the revenue Court may be stayed, pending decision of the appeal. It appears to me that the High Court has no jurisdiction to stay such proceedings of the revenue Court. If the Assistant Collector, instead of referring the question of proprietary title to the civil Court for determination, had elected to enquire into the merits of the objection himself as He was authorized to do under Section 111 (1) (c) and had passed a decree, then under Section 112 the High Court could have issued a precept to the Collector desiring him to stay partition pending the decision of an appeal against the decree. It is argued that if the High Court can stay the partition pending an appeal against the Assistant Collector's decision it would be very anomalous if the High Court cannot stay the partition pending an appeal against the civil Court's decision. I grant that the position does seem anomalous. I do not know why the legislature has thought fit to empower the High Court to stay the partition in the former case only, and not in the latter. The reasons for staying partition might be equally cogent in either case.

2. In the case of Ram Charitra v. Mohan Dei A.I.R. 1923 All. 210 Ryves, J., expressed the view that the revenue Court was wrong in completing the partition without awaiting the final decision of the civil Court. He hold that the revenue authorities:

were clearly wrong, and that they did not act in conformity with the provisions of Section 111 (2) for the case was not dealt with in accordance with the decision of the civil Court as there had been no final decision of the civil Court.

3. I think it unnecessary to express any opinion whether the Assistant. Collector is exercising a proper , discretion, or is acting according to law, in proceeding with the partition case without awaiting the final decision of the civil Court, since I think that the High Court has no power to stay proceedings.

4. In the first place there is nothing in the Civil Procedure Code, applicable to the facts of this case. Order 41, Rule 5, empowers an appellate Court to stay proceedings under a decree appealed from. As the partition proceedings are 'in accordance with' the decree under appeal they might be held to be proceedings 'under' that decree. But, even if this liberal interpretation is accepted, I do not think that Order 41, Rule 5, can be construed so as to empower the High Court to stay the proceedings of a revenue Court, which is not subordinate to the High Court. I think it contemplates; proceedings of Court subordinate to the appellate Court which passed the order.

5. It is further suggested that this Court could issue an injunction to the parties to the appeal restraining them from continuing the partition proceedings during the pendency of the appeal. Order 39, Rule 1 has no application to the facts of this case, and it is clearly not a case in which the exercise of any ' inherent powers' could be contemplated.

6. In the second place I think this application is expressly barred by the pro-visions of Section 233 (k), Land Revenue Act. This application is a 'proceeding' with respect to partition of mahals, and there is nothing in Section 111 or Section 112 which confers jurisdiction upon a civil Court to take cognizance of it.

7. In short the High Court can stay partition proceedings in a revenue Court if the terms of Section 112 are applicable, but cannot do so any other circumstances. In the present case the terms of Section 112 are not applicable and I hold that the High Court has no jurisdiction to stay the proceedings.

8. I dismiss the application with costs.


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