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Raghubar Sahi Vs. Protap Udoy Nath Sahi Deo - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1912)ILR39Cal241
AppellantRaghubar Sahi
RespondentProtap Udoy Nath Sahi Deo
Cases ReferredMohunt Padmalav Ramanuja Das v. Lukmi Rani
Excerpt:
second appeal - chota nagpur tenancy act (beng. vi of 1908), sections 87, 224, 264--civil procedure code (act v of 1008) section 100--landlord and tenant. - .....officer there can be no second appeal. it is admitted that the provisions of section 100 of the civil procedure code must be excluded either expressly or by implication. there is no express exclusion in this act; but we think, on looking at the frame-work of this act, that it is intended that no second appeal should lie to this court. an appeal is provided for, as we have said, in sub-section (2) of section 87, and if there is to be a further appeal, we mast then look to the provisions of section 221 of the act, which says that 'a second appeal shall lie to the high court, under chapter xlii of the code of civil procedure, from any appellate decree passed by the judicial commissioner under this chapter, or from any order passed by him on appeal under section 215, sub-section (3).' we.....
Judgment:

Stephen, J.

1. This matter comes before as on appeal and also on a Rule. The appeal was from a decree of the Judicial Commissioner of Chota Nagpur sitting on appeal from an order under Section 87 of the Chota Nagpur Tenancy Act.

2. A preliminary objection is taken by the respondent that no second appeal lies in this case, and this contention, we think, must succeed. Sub-section (2) of Section 87 of the Act enacts that an appeal shall lie in the prescribed manner, and to the prescribed officer, from decisions passed under Sub-section (1). By an order of the Local Government which has power to act in this matter, the prescribed officer is the Judicial Commissioner, and it is argued that an appeal lying to him from a, decision of a Revenue Officer there can be no second appeal. It is admitted that the provisions of Section 100 of the Civil Procedure Code must be excluded either expressly or by implication. There is no express exclusion in this Act; but we think, on looking at the frame-work of this Act, that it is intended that no second appeal should lie to this Court. An appeal is provided for, as we have said, in Sub-section (2) of Section 87, and if there is to be a further appeal, we mast then look to the provisions of Section 221 of the Act, which says that 'a second appeal shall lie to the High Court, under Chapter XLII of the Code of Civil Procedure, from any appellate decree passed by the Judicial Commissioner under this chapter, or from any order passed by him on appeal under Section 215, Sub-section (3).' We are of opinion that Section 87 has been deliberately excluded from its scope. We are led further to this conclusion by a consideration of the provisions of the Bengal Tenancy Act from which this Act has been very closely adopted. Reading Section 87 with Section 106 of the Bengal Tenancy Act, it seems to us that it is by implication provided that there shall be no second appeal in cases arising under that section.

3. We, therefore, hold that there is no second appeal in this case. The appeal is dismissed with costs.

Coxe, J.

4. I agree. It appears to me that Clause (2), Section 87, read with Section 264, Sub-section (i), Clause viii, is tantamount to an express provision of law within the meaning of Section 100 of the Code of Civil Procedure that these appeals should be heard by the prescribed officers, and should not be heard by officers other than those. I only desire to state that in the case of Mohunt Padmalav Ramanuja Das v. Lukmi Rani [1894] P. 151 to which we have been referred, there is nothing that in any way limits the scope of Section 106 of the Bengal Tenancy Act in so far as it relates to suits between landlord and tenant. The appeal is dismissed with costs.

5. The Rule was also discharged.


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