1. This is a reference made by the District Judge of Azamgarh under Section 267 (Clause 2), Agra Tenancy Act, Act 3 of 1926. The facts are as follows:
2. A suit was brought by the opposite-party, Babu Harakh Chand and others against Babu Sarju Singh for arrears of rent in the Court of an Assistant Collector of the first class when the old Tenancy Act; viz., 2 of 1901, was in force. The suit was valued at Rs. 109. The defendants did not appear to contest the suit, and the plaintiffs' suit was decreed ex parte. This was prior to the coming into force of the new Agra Tenancy Act. It is clear that on the date the ex parte decree was passed an appeal against the decision of the Assistant Collector could lie only in the Court of the District Judge. Sarju Singh did not appeal against that decree. He filed an application for the setting aside of the ex parte decree, and for the restoration of the suit under Order 9, Rule 13, Civil P.C. That application was rejected by the learned Assistant Collector of the first class on 21st October, 1926. The present Tenancy Act had in the meanwhile, on 7th September 1926, come into force. Sarju Singh filed an appeal against the order of the Asst. Collector in the Court of the Collector.
3. The learned Collector was of opinion that the appeal against the order rejecting the application for restoration of the suit lay in the Court of the District Judge and not in his Court, and accordingly directed the memorandum of appeal to be returned for presentation to the proper Court. Sarju Singh then presented the memorandum of appeal in the Court of the District Judge. The District Judge was of opinion that the appeal should be preferred to the Collector, and as such ordered the memorandum of appeal to be returned for presentation in the Court of the Collector. Thereupon Sarju Singh applied under Section 267 of the present Agra Tenancy Act for the matter to be referred for decision by this Court, and accordingly the present reference has been made.
4. The order rejecting the application for setting aside the ex parte decree was passed after the coming into force of the present Tenancy Act, and as such the right of appeal must be governed and the forum of appeal must be determined with reference to the provisions of the present Act. It is provided by Section 248, Clause 3. of the present Act, Act 3 of 1926, that an appeal shall lie from the orders enumerated in Order 48, Rule 1, to the Court having jurisdiction under Section 242 of the Act to hear an appeal from the decree in the suit. It is, therefore, obvious that the appeal against the order rejecting the application for setting aside the ex parte decree must lie in the Court to which an appeal can lie against the decree in a suit for arrears of rent. A reference to group A of Schedule 4, of the present Act shows that suits for arrears of rent not exceeding in value Rs. 200 are triable by an Assistant Collector of the second class and those exceeding Rs. 200 in value are triable by an Assistant Collector of the first class, but it is also provided by that group that an appeal against a decision of an Assistant Collector of the first class in a suit for arrears of rent lies to the District Judge and not to the Collector. In the present case the value of the suit for arrears of rent did not exceed Rs. 200, and the suit, having been instituted before the passing of the present Act, was rightly tried by an Assistant Collector of the first class. An appeal against a decree of an Assistant Collector of the first class can only lie in the Court of the District Judge, and, therefore, the appeal against the order rejecting the application filed by Sarju Singh under Order 9, Rule 13 must be in the Court of the District Judge. We direct the learned District Judge to entertain the appeal and to decide the same according to law. Let the record be returned.