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Satya Nidhan Banerji Vs. Muhammad Hazubber Ali Khan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1931All533
AppellantSatya Nidhan Banerji
RespondentMuhammad Hazubber Ali Khan
Excerpt:
- - 5. there can be no doubt that the order which is complained of is an order passed in appeal. he was exercising his appellate jurisdiction and the order complained of must necessarily therefore be an order passed in appeal. 'it has no been contended, and it cannot be con-tended, that the order which has beer complained of is a decree, it being an order which must come under the heading 'appeals from orders. in section 248, sub-section (1), the orders dealt with are clearly mentioned as original orders......deal with particular orders under which the present order does not come. section 247 deals with orders passed by an assistant collector of the second glass. evidently these are orders passed in the exercise of original jurisdiction. in section 248, sub-section (1), the orders dealt with are clearly mentioned as original orders. besides, they are orders passed by an assistant collector or a collector. sub-section (2), section 248, deals with the order passed by an assistant collector in charge of a sub-division under particular sections of the act sub-section (3) deals with orders by an assistant collector of the first class or a collector. these are orders passed in execution of a decree or orders which are not appealable as a decree but are appealable as orders. sub-section (4) of.....
Judgment:

Mukerji, J.

1. This appeal is against an order passed by the learned District Judge of Shahjahanpur by which ha refused to restore an appeal which had been dismissed by him for default.

2. The preliminary point that arises is whether the appeal is competent.

3. It appears to us that Section 249, Agra Tenancy Act, being Act 3 of 1926, is conclusive on the point.

4. Section 249 runs as follows:

No appeal shall lie from any order passed in appeal.

5. There can be no doubt that the order which is complained of is an order passed in appeal. When an appeal is pending before a Judge any order that is passed with reference to that appeal must be an ' order passed in appeal. In this particular case the learned Judge was not seised of any original suit or proceeding. He was exercising his appellate jurisdiction and the order complained of must necessarily therefore be an order passed in appeal.

6. If we look to the entire scheme of the Tenancy Act, 1926, we find that it starts with the heading, 'Appeals from original decrees. ' Under it come Sections 241 and 242. Next comes the heading. ' Appeals from appellate decrees. ' Under this heading coma Sections 243 to 246. Then comes the heading, ' Appeals from orders. ' Under this head come Sections 247 and 248. The case under our consideration must come under the heading, ' Appeals from orders. ' It has no been contended, and it cannot be con-tended, that the order which has beer complained of is a decree, it being an order which must come under the heading ' Appeals from orders. ' Now Sections 247 and 248 deal with particular orders under which the present order does not come. Section 247 deals with orders passed by an Assistant Collector of the Second Glass. Evidently these are orders passed in the exercise of original jurisdiction. In Section 248, Sub-section (1), the orders dealt with are clearly mentioned as original orders. Besides, they are orders passed by an Assistant Collector or a Collector. Sub-section (2), Section 248, deals with the order passed by an Assistant Collector in charge of a sub-division under particular sections of the Act Sub-section (3) deals with orders by an Assistant Collector of the First Class or a Collector. These are orders passed in execution of a decree or orders which are not appealable as a decree but are appealable as orders. Sub-section (4) of the same section deals with orders in which an appeal would lie to the Board of Revenue. Apparently the order under consideration does not come under Section 248 at all. Then comes Section 249 and with that section the heading ends. We have already quoted that section. We see no reason why the particular order under consideration should escape from the operation of the general words used in that section.

7. The learned Counsel for the appellant has drawn our attention to the definition of the word 'decree' to be found in Clause 14, Section 3, Tenancy Act, 1926. There ' decree ' is defined as this:

Decree means any order which so far as the revenue Court is concerned, finally disposes of a suit.

8. Now the order under appeal is, to start with, not an order passed by the Revenue Court. It has been passed by the District Judge. Secondly, the order does not profess or does not in effect dispose of a suit. It disposes of an appeal. The appeal no doubt is a continuation of a suit, but that is a different meaning altogether. In a Code which deals with both ' suits ' and ' appeals ' it cannot be said that the word ' suit ' has been used in the same sense as the word ' appeal. ' Probably what was meant was that the word 'decree' would include the kind of order described. But we cannot take it that the present order passed by a District Judge comes within the definition.

9. We may further point out that if the appeal was a continuation of the suit, it had been disposed of effectually and finally by the order which dismissed the appeal for default. The further proceedings that took place were for restoration of the appeal and therefore the result cannot be said to have finally disposed of the suit or the appeal. We think that this argument has no force.

10. We hold therefore that the order is not appealable and accordingly we dismiss this appeal under Order 41, Rule 11, Civil P. C.


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