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Gonthireddi Lakshmidevi and ors. Vs. Jammi Rajarao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 86 of 1953
Judge
Reported inAIR1955Mad159; (1954)IIMLJ192
ActsDebt Law; Madras Agriculturists Relief Act, 1938 - Sections 19A and 25A; Code of Civil Procedure (CPC) , 1908 - Sections 2(2) and 96
AppellantGonthireddi Lakshmidevi and ors.
RespondentJammi Rajarao and ors.
Appellant AdvocateN. Bapiraju, Adv.
Respondent AdvocateG. Balaparameswari Rao, Adv.
Disposition Appeal allowed
Cases ReferredAdikappa v. Chandrasekhara
Excerpt:
civil - right of appeal - debt law, sections 19a and 25a of madras agriculturists relief act, 1938 and sections 2 (2) and 96 of code of civil procedure, 1908 - whether appeal lies against order holding that petition is not competent on ground that act does not apply to it - appeal is creature of statue and cannot be created by implication - held, no right of appeal avaible to party whose petition rejected on ground that provisions of act are inapplicable to his case. - - what is urged by him is that the right of appeal conferred on a person aggrieved by any order passed by the trial court under section 19-a is under section 25-a, madras agriculturists' relief act, 1938, and the latter section does not cover a case like the present one. secondly really there is no hardship at all for..........appeal lay against an order under section 19 of the act, but acceded to the request to convert the appeal into a civil revision petition, and, set aside the order of the subordinate judge in the civil revision petition. dealing with that question the privy council expressed the opinion that the view of this court that no appeal lay was wrong since a right of appeal was conferred by section 96, civil p. c., the order having been made in the suit and amounting to a decree within the meaning of section 2(2), civil p. c. the contention of mr. balaparameswari rao would have succeeded on the basis of this case if he were able to show me any provision of the civil p. c., which is attracted by the present case. 10. mr. balaparameswari rao argued that the order passed in this case is a decree.....
Judgment:

Chandra Reddy, J.

1. This is an appeal against the order of the Additional Subordinate Judge, Kakinada, reversing the order of the District Munsif of Feddapuram, dismissing the first respondent's petition filed under Section 19-A, Madras Agriculturists' Relief Act 4 of 1938, to declare that there was no debt outstanding under the bond dated 37-3-1934 or to declare the amount due thereunder. The first respondent's father executed a document styled Khandagutha usufructuary mortgage both in his Individual capacity and as the guardian of the then minor, first respondent. The amount mentioned in the document was Rs. 700. Under the terms of the document the creditors were to be in possession of the property for a period of 25 years, and, at the end of that period, the property was to be given back to the executants of the document, endorsing payment in full of the debt and returning the document also. The basis of the petition was that the transaction covered by the document in question was a usufructuary mortgage.

2. The petition was resisted by the appellants on the pleas 'inter alia' that the petition was not maintainable as the document in question was only a lease and that in any event the first respondent was not entitled to the relief as he was not an agriculturist. Construing the document as a lease and not a usufructuary mortgage, the trial court held that the petitioner before it was not entitled to claim the benefit of the provisions of the Act and therefore the petition was not maintainable.

3. On appeal the Subordinate Judge came to the contrary conclusion with regard to the construction of the document and held that the first respondent was entitled to relief if he was found to be an agriculturist and remanded the matter to the trial court for an enquiry as to whether he was an agriculturist. Against this order the present appeal has been filed. (4) Mr. Bapiraju, learned counsel for the appellants pressed upon me the view that since the trial court dismissed the application on the ground that the provisions of the Madras Agriculturists' Relief Act were not applicable to the present case, the appeal to the lower appellate court was incompetent and therefore, should not have been entertained by the Subordinate Judge. What is urged by him is that the right of appeal conferred on a person aggrieved by any order passed by the trial court under Section 19-A is under Section 25-A, Madras Agriculturists' Relief Act, 1938, and the latter section does not cover a case like the present one.

4. The point for consideration is whether anappeal lies against an order holding that the petition is not competent on the ground that the Actdoes not apply to it. In order to answer this wemust turn to Clauses (c) and (cc) of Section 25-A whichstate what orders are appealable. They run asfollows:

'(c) An order under Clause (a) of Sub-section (4) ofSection 19-A declaring the amount due to the creditor or declaring the debt to have been discharged;

(cc) an order under Clause (b) of Sub-section 4 of Section 19-A dismissing the application on the ground that the debtor was not an agriculturist;'

It is clear from these two clauses that an appeal lies against an order coming within the ambit of Clauses (a) and (b) of Sub-section (4) of Section 19-A. Section 19-A provides:

'Where any debt incurred before the 22nd March 1938, other than a decree debt, is due by any person who claims that he was an agriculturist both on that date and on the 1st October 1937, the debtor or the creditor may apply to the court having jurisdiction for a declaration of the amount of the debt due by the debtor on the date of the application.'

Sub-section (4) (a) says:

'When any such application is made, the Court shall first decide whether the debtor was such an agriculturist or not, and, if it finds that he was such an agriculturist, pass an order declaring the amount due by him or declaring that the debt has been discharged, as the case may be.'

Sub-section (4) (a) says:

'The court shall dismiss the application if itfinds that the debtor was not such an agriculturist'.

5. It may be mentioned here that originally the right of appeal was conferred only on a party aggrieved by an order under Sub-section (4) (a) of Section 19-A, and it is only by way of amendment that Clause (b) was added. Prior to the amendment the question arose whether an order which declared that the applicant was not an agriculturist was appealable or not in -- 'Mahaboob, Ali v. Khudratulla AIR 1944 Mad 133 (A), and this Court held that such an order was not appealable as there was no provision for an appeal in such a case in Section 25-A (1) (c). It is in order to meet the situation created by this ruling the legislature introduced by the Amending Act 23 of 1948 Clause (cc) into Section 25-A of the Act. Reading the two provisions of Section 19-A, Sub-section 4 (a) and, Section 25-A (c) and (cc) together it is clear that there is no right of appeal to a party whose petition is rejected on the ground that the provisions of the Act are inapplicable to his case as neither of the two clauses contemplate such a case.

6. A decision of a Bench in AIR 1944 Mad 133 (B)', which supports the view I have taken was followed by another Bench decision of this Court in -- 'Suryanarayanamurti v. Satyanarayanamurthi AIR 1946 Mad 264 (B).

7. Mr. Balaparameswari Rao, learned counsel for the respondents, maintained, (1) that the court in dealing with a petition under this Act can only pass any of the two orders mentioned in Sub-section (4) and therefore appeals are provided only in respect of these two kinds of orders. If the court passes any order other than the two mentioned therein it is one without jurisdiction. If it is assumed that the court has jurisdiction to pass an order that an application is not maintainable for the reason it does not come within the purview of that Act, it must be equally assumed that the appellate court has a jurisdiction to entertain an appeal against that order. I do not think I can accept this argument. Merely because the legislature has not provided for the eventuality of a petition being dismissed on the ground that it does not come within the ambit of the provisions of the Act it does not follow that a court has no jurisdiction to reject an application on the ground that the petitioner cannot seek any relief under the provisions of the Act. Such a contingency is not provided for obviously for the reason that the petitions which are outside the purview are not filed under that Act. There is therefore no substance in the argument that a court has no jurisdiction to dismiss an application holding that it does not fall under the provisions of the Act.

8. The assumption that if a court has power to pass an order it carries with it the implication of a right of appeal against that order is equally unwarranted. If no appeal is provided for specifically against an order in the enactment such an order cannot be appealed against. An appeal is a creature of a statute and it cannot be created by implication. It is urged that this construction will land the person aggrieved in hardship. Considerations of inconvenience and hardship have no place in the construction of statutes. Secondly really there is no hardship at all for the reason that the party concerned in a case like this could file a suit for redemption of the mortgage if it is really a mortgage, or take the matter in revision to this Court. On this discussion it follows that an appeal against the order of the trial court was incompetent and ought not to have been entertained.

9. The alternative position taken by Mr. Balaparameswari Rao is that even if no provision is made for an appeal in this regard in the Act, still he can file one under the provisions of the Civil P. C., and that the rulings of this Court cited above are no longer good law having regard to the judgment of the Privy Council in -- 'Adikappa v. Chandrasekhara . I do not think that the last mentioned case has in any way shaken the authority of the two decisions cited above, nor does it advance the case of the respondent. In that case a Bench of this court, following a ruling of the Full Bench, inter alia' dismissed an appeal against the order passed by the Subordinate Judge throwing out an application under Section 19, Madras Agriculturists' Relief Act for amendment of the decree on the ground that no appeal lay against an order under Section 19 of the Act, but acceded to the request to convert the appeal into a civil revision petition, and, set aside the order of the Subordinate Judge in the civil revision petition.

Dealing with that question the Privy Council expressed the opinion that the view of this Court that no appeal lay was wrong since a right of appeal was conferred by Section 96, Civil P. C., the order having been made in the suit and amounting to a decree within the meaning of Section 2(2), Civil P. C. The contention of Mr. Balaparameswari Rao would have succeeded on the basis of this case if he were able to show me any provision of the Civil P. C., which is attracted by the present case.

10. Mr. Balaparameswari Rao argued that the order passed in this case is a decree within the meaning of Section 2, Sub-section (2), Civil P.C. But, this is overlooking that the determination of the rights of parties with regard to the matters in controversy must be in the suit. The proceedings in this case were on a petition and therefore the provisions of Sub-section (2) of Section 2, Civil P. C., do not apply to this case. It is only petitions which are deemed to be suits that come within the ambit of Sub-section (2). Therefore the argument based on Sub-section (2) of Section 2, Civil P. C., is unavailable to the respondent. The result is that the appeal to the learned Subordinate Judge was incompetent and the latter acted without jurisdiction in entertaining it. The civil miscellaneous appeal is allowed.


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