1. Three questions arising out of the Madras Agriculturists' Relief Act (IV of 1938) have been referred for decision by a Full Bench and this Bench has been constituted for the purpose. The questions read as follows:
(1) When a statutory rule giving a right of appeal is promulgated after a final order has been passed, will an appeal lie under that rule against that?'order?
(2) Is Rule 8 of the rules framed under Madras Act IV of 1938 ultra vires? If so,
(3) Is the decision in Pakkiri Muhammad Tharaganar v. U.T. Syed Sahib : AIR1940Mad418 , right in holding that an order under Section 19 of the Madras Act IV of 1938 is not appealable as falling under Section 47 of the Civil Procedure Code?
2. It will be convenient to take the second question first, because if it is answered in the affirmative the first question will not call for an answer.
3. The Act itself,, does not directly provide for an appeal against an order passed in exercise of jurisdiction conferred by the Act, but the Provincial Government has assumed that Section 28, which confers upon it power to make rules under the Act, is sufficiently widely drawn to enable it to provide for appeals, Section 28 reads as follows:
(1) The Provincial Government may make rules for carrying into effect the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, the Provincial Government may make rules:
(a) in regard to any matter which is required to be prescribed by this Act;
(b) prescribing the form of, and the fees to be paid in respect of, applications under this Act; and
(c) for removing any difficulty in giving effect to the provisions of this Act.
(3) All the rules made under this section shall be consistent with the provisions of this Act. They shall be published in the Official Gazette and upon such publication shall have effect as if enacted in this Act.
4. Relying on Sub-section (1) and Clause (c) of Sub-section (2) of Section 28 the Provincial Government, by a notification dated the 27th October, 1939, added the following rule to those already framed:
(8) Appeals shall lie from any of the following orders passed by a Court under the Act, namely :--*
(a) an order under Section 18(1) amending or refusing to amend a decree;
(b) an order under Section 19 amending or refusing to amend a decree or. entering or refusing to enter satisfaction in respect of a decree;
(c) an order under Section 20 staying or refusing to stay proceedings in execution of a decree;
(d) an order under Section 22 directing or refusing to direct the refund of any sum realised in execution of a decree;
(e) an order under Section 23 setting aside or refusing to set aside any sale or foreclosure of immovable property; and
(f) an order under Section 24 directing or refusing to direct the repayment of any purchase money realized in execution of a decree; as if the order related to the execution, discharge or Satisfaction of the decree within the meaning of Section 47 of the Code of 'Civil Procedure, 1908.
5. Before discussing the nature of the provisions to be found in Sub-section (1) and Clause (c) of Sub-section (2) of Section 28 it will be advantageous to refer to certain of the cases in which the governing principle that an appeal does not lie as of right, but must be conferred by express enactment, has been applied. The first of the cases which I have in mind is that of the Attorney-General v. Sillem (1864) 10 H.L.C. 704 : 11 E.R. 1200. By Section 26 of the Queen's Remembrancer's Act, 1859, the Barons of the Court of Exchequer were given authority to make rules with regard to the process, practice, and mode of pleading in revenue cases in their Court. By virtue of this section the Barons of the Exchequer made rules in which they purported to grant an appeal to the Exchequer Chamber and to the House of Lords. It was held by the House of Lords that the section did not authorize them to do this. Lord West-bury, L.C., in the course of his judgment in that case said:
The creation of a new right of appeal is plainly an act which requires legislative authority. The Court from which the appeal is given, and the Court to which it is given, must both be bound, and that must be the act of some higher power... In making the orders now in question, the Barons of the Court of Exchequer have assumed that a discretionary power to exercise this legislative authority or not, and thereby to confer or to withhold, this important benefit of new rights of appeal, has been given to them by the 26th section of the Act of 1859. If the Legislature has done this, it has done a thing which is very irregular, and which antecedently would seem to be very improbable.
It is not reasonable to suppose that in matters affecting the taxation of the subject, the Legislature would abdicate its own functions and delegate to the Barons of the Exchequer the power of determining at their pleasure whether, in certain cases, there should or should not be a right of appeal as between the subject and the Crown.
6. In Cousins v. Lombard Deposit Bank (1876) 1 Ex. Dn. 404, the question was whether the Courts of Appeal from Inferior Courts was empowered by Section 6 of the County Courts Act, 1875, to hear an appeal from a decision of a County Court upon a question of fact arising in a suit brought within its jurisdiction as a Court of common law. Grove, J., observed that if the Legislature had intended to allow an appeal on such a question clear language would have been employed. In Sandbank Charity Trustees v. North Staffordshire Railway Co. (1887) 3 Q.B.D.1 Bramwell, L.J., in considering the question whether the Court had jurisdiction over the Master's taxation on a motion to review, answered it in the negative. He said that an appeal did not exist in the nature of things and a right to appeal from any decision of any tribunal must be given by express enactment. The Privy Council has also considered this question. In Minakshi Naidu v. Subramanya Sastri (1887) L.R. 14 I.A. 160 : I.L.R. 11. Mad.26 (P.C), the Judicial Committee was called upon to say whether the High Court had jurisdiction to hear an appeal from an order of a District Judge made by him in a proceeding under the Religious Endowments Act, 1863, appointing a member to fill a vacancy in a committee. The Act gave no right of appeal. It was held that neither the Act, nor the general law, gave any right of appeal. In the course of the judgment it was observed:
In approaching the consideration of this question, their Lordships cannot assume that there is a right of appeal in every matter which comes under the consideration of a Judge; such a right must be given by Statute, or by some authority equivalent to a statute.
7. In Rangoon Botatoung Co., Ltd., v. The Collector, Rangoon (1912) 23 M.L.J. 276 : L.R. 39 I.A. 197 : I.L.R. 40 Cal. 21 (P.C), the Privy Council dealt with the question whether there was an appeal to His Majesty in Council from a decision of the Chief Court of Lower Burma on a reference to that Court by the Collector of Rangoon in proceedings under the Land Acquisition Act. It was held that there was no such right. Delivering the judgment of the Board, Lord Macnaghten referred to the observations of Bramwell, L.J., in Sandbank Charity Trustees v. The North Staffordshire. Railway Co. (1877) 3 Q B.D. 1 and said that the right of appeal could not be implied.
8. In view of these observations it is manifest that what we have to consider is whether there is anything in Section 28 of the Madras Agriculturists' Relief Act?, which can reasonably be read as conferring authority on the Provincial Government to make rules providing for appeals from orders passed under the Act. Only Sub-section (1) and Clause (c) of Sub-section (2) are relied upon in support of the contention that Rule 8 is intra vires the powers of the Provincial Government. Sub-S (l) merely says that the Provincial Government may make rules for carrying into effect the purpose of this Act. In making a rule providing for appeals the Provincial Government is not making a rule for carrying into effect the purposes of the Act. It is adding something to the Act. The object of the Act is to grant relief to agriculturists by providing machinery for the scaling down of their debts. The Court of first instance decides whether a case falls within or without the Act. If a case falls within the Act the Court must scale down the debt in accordance with the directions embodied in the Act. An order of the Court must be taken to be a correct order unless it is shewn to be wrong by an appellate tribunal which has power to entertain an appeal. Clause (c) of Sub-section (2) does not carry the matter any further. By providing for an appeal the Provincial Government is not removing any difficulty in giving effect to the provisions of the Act. The Courts of first instance are there for the purpose and, as I indicated, their orders must be assumed to be correct. To read either into Sub-section (1) or into Clause (c) of Sub-section (2) a power for the Provincial Government to constitute an appellate tribunal would be to read something which is not there, and incidentally be ignoring a well settled principle. Therefore, the answer I would give to the second question is that Rule 8 is ultra vires the power of the Provincial Government. As my learned brothers agree in this answer it is not necessary to discuss the first question.
9. The third question has arisen as the result of a conflict in the decisions of this Court. In In re Subbarayudu : (1939)2MLJ609 , Burn and Stodart, JJ., held that an order passed on an application filed under Section 19 of the Madras Agriculturists' Relief Act while no proceedings in execution are pending is not appealable. In the opinion of the learned Judges it could not be considered to be a question under Section 47 of the Code of Civil Procedure in the absence of execution proceedings. Section 19 provides that where before the commencement of the Act, a Court has passed a decree for the repayment of a debt, it shall, on the application of a judgment-debtor who is an agriculturist or in respect of a Hindu joint family debt, on the application of any member of the family, whether or not he is the judgment-debtor, or on the application of the decree-holder, apply the provisions of the Act to the decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree or enter satisfaction as the case may be in Jami Venkatapadu v. Kannepalli Ramamurthi : AIR1940Mad131 , Pandrang Row and Abdur Rahman, JJ. without giving any reasons, stated that they had no doubt that petitions filed under Section 19 must be deemed to be petitions which raise questions relating to execution, discharge or satisfaction of a decree and therefore come within the matters covered by Section 47 of the Code of Civil Procedure. In Pakkiri Muhammad Tharaganar v. Syed Sahib : AIR1940Mad418 , Burn and Lakshmana Rao, JJ. had to consider the effect of the decision in In re Subbarayudu : (1939)2MLJ609 the argument being that if at the time when an order is made under Section 19 of the Madras Agriculturists' Relief Act there is pending an execution petition, the order would be appealable as one falling under Section 47 of the Code of Civil Procedure. The learned Judges directly negatived this contention. They held that the pendency of execution proceedings did not make an application under Section 19 of the Madras Agriculturists' Relief Act a matter relating to the execution of the decree in any sense. The learned Judges regarded the observations of Pandrang Row and Abdur Rahman, JJ. in Jami Venkatappadu v. Kannepalli Ramamurthi : AIR1940Mad131 as being merely an obiter dictum which it was.
10. I have no hesitation in preferring the view expressed in Pakkiri Muhammad Tharaganar v. Syed Sahib : AIR1940Mad418 on this question to that expressed in Jami Venkatapadu v. Kannepalli Ramamurthi : AIR1940Mad131 . When dealing with applications under Section 19 of the Madras Agriculturists' Relief Act the Court is not acting in execution. Its function is to apply the provisions of the Act to decrees against persons who are entitled to relief under the Act. If relief is applied for and the Court considers that the applicant is entitled to have the provisions of the Act applied the Court must apply them. If the scaling down does not wipe out the decretal amount then an amended decree is passed, which can only be enforced in execution proceedings separately instituted under the Code of Civil Procedure. If the scaling down wipes out the decretal amount the Court cannot pass an amended decree. It must then declare that the decree has been satisfied. But here again, the entering up of satisfaction is not in execution proceedings, but in proceedings, under the Agriculturists' Relief Act, which are of an independent nature. Unless proceedings under Section 19 can be regarded as proceedings in execution--and I think I have said sufficient to indicate that in my opinion they are not--Section 47 of the Code of Civil Procedure can have no application. It follows that in my judgment the answer to the third question is that the decision in Pakkiri Muhammad Tharaganar v. Syed Sahib : AIR1940Mad418 in holding that an order under Section 19 of the Madras Agriculturists' Relief Act is not appealable under Section 47 of the Code of Civil Procedure is right. In giving this answer I do not intend, however, to express any opinion on the statement to be found at the end of the judgment in that case to the effect that if the decree is scaled down, an appeal will lie from the new decree. This statement was no doubt made on the opinion of this Court previously expressed that an appeal will lie from an order amending a decree. That question is not before us and therefore in holding that Pakkiri Muhammad Tharaganar v. Syed Sahib : AIR1940Mad418 was rightly decided the answer is confined merely to the applicability of Section 47 of the Code of Civil Procedure. I may also add that in answering the third question the Court is only concerned with cases falling within Section 19 of the Madras Agriculturists' Relief Act and not with applications under Section 20. The consideration of the position with regard to Section 20 must be left until the question arises.
11. I would make the costs of this reference costs in the cause.