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Sakkal Sardar Vs. Issurdas Thirani and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal230
AppellantSakkal Sardar
Respondentissurdas Thirani and ors.
Cases Referred and Brojo Gopal Sarkar v. Busirunnissa Bibi
Excerpt:
- .....against the petitioner defendant under the provisions of the rent act (act 10 of 1859) before the deputy collector in siliguri. execution proceedings followed. by agreement, the parties went to arbitration before a certain gentleman, mr. sen, who made an award in favour of the plaintiffs. the judgment-debtor contended subsequently that the submission to arbitration was without jurisdiction and that he was not bound by the award. the deputy collector overruled this objection. there was then an appeal to the district judge who held that, although the objection was well founded, he had no jurisdiction in appeal. he accordingly dismissed the appeal. it is now not disputed that the judgment-debtor's objection is well founded and that the award was made without jurisdiction. the only.....
Judgment:

Henderson, J.

1. This appeal and the rule are concerned with a matter which in itself is extremely simple but which raises highly technical questions. This will be apparent from the mere fact that Mr. Sen felt compelled to file both an appeal and an application in revision. The plaintiffs obtained a rent decree against the petitioner defendant under the provisions of the Rent Act (Act 10 of 1859) before the Deputy Collector in Siliguri. Execution proceedings followed. By agreement, the parties went to arbitration before a certain gentleman, Mr. Sen, who made an award in favour of the plaintiffs. The judgment-debtor contended subsequently that the submission to arbitration was without jurisdiction and that he was not bound by the award. The Deputy Collector overruled this objection. There was then an appeal to the District Judge who held that, although the objection was well founded, he had no jurisdiction in appeal. He accordingly dismissed the appeal. It is now not disputed that the judgment-debtor's objection is well founded and that the award was made without jurisdiction. The only question, therefore, is whether I am able to give him any relief either in the appeal or in the rule. The main questions involved are whether there is a first appeal to the District Court, whether there is a second appeal to this Court and whether this Court has jurisdiction to interfere with the order of the Deputy Collector in revision. Mr. Sen's contention is that the Deputy Collector's order was made under Section 47, Civil P.C. For this purpose, he relies upon the wording of Section 4 of the Code and interprets it to mean that the Code will apply to the proceedings before the Deputy Collector unless there is something specific in the Kent Act to exclude it. This question really arises in connexion with the rule, and I shall for the present assume that Section 47 applies to the proceedings before the Deputy Collector. Now, Section 47 does not in itself confer any right of appeal. It simply provides that the present dispute as to the validity of the award must be decided by the Deputy Collector in execution instead of by means of a suit. Proceeding to Section 96 it can be said that, so far as the Code is concerned, there is an appeal but of course there is no provision as to what Court is to hear it. The matter is determined by Section 151, Rent Act. The relevant paragraph of the section is in these words:

All orders passed by a Collector under this Act, not being judgments in suits or orders passed in the course of suits and relating to the trial thereof or orders passed after decree and relating to the execution thereof, shall be appealable to the Commissioner; and all such orders passed by a Deputy Collector shall be appealable to the Collector; but no judgment of a Collector or Deputy Collector in any suit, and no order of a Collector or Deputy Collector passed in any suit and relating to the trial thereof, or after decree and relating to the execution thereof, shall be open to revision or appeal otherwise than as expressly provided in this Act.

2. From this it is abundantly clear that if there is an appeal it is to be provided by the Bent Act. The only section which provides for such an appeal is Section 160. That, however, provides a first appeal only. It cannot therefore be disputed that no second appeal lies to this Court. Apart from the actual statutory provision Mr. Sen sought to find an appeal in certain decisions of this Court, with regard to arbitration matter's. He particularly referred to the decision in Durga Charan v. Ganga Dhar : AIR1931Cal109 . That decision is certainly to the effect that where there has been no valid submission to arbitration, an appeal does lie and the appellate Court has jurisdiction to set aside the proceedings. Now I am bound to say with all due respect that this is a kind of decision which I find it extremely difficult to appreciate. Ordinarily when one wishes to find out whether an appeal is competent, one has to examine the judgment and decree or order and then see whether it can be brought within the statutory provisions which allow an appeal. Now there can be no question that, if that procedure is followed in the present case, there is no appeal. But according to this decision that is not sufficient. One has to go further and discover whether the appeal is a good appeal or a bad appeal and, if it is the former, then the appeal is competent. Now the only question that arises for decision is whether the award was without jurisdiction or not and I cannot persuade myself that one has to decide the appeal on the merits before one is in a position to say whether the Court has jurisdiction to hear the appeal or not. The question arose for decision in a later case, Golnur Bibi v. Abdus Samad : AIR1931Cal211 . That case was heard by Mitter J. who was a party to the previous decision and Mukherji J. The latter dissented from this view and reached the conclusion after a very full discussion of the case that no appeal lies. All I need say is that I respectfully agree with his conclusion. Mr. Sen further pressed me that sitting alone I should accept the former decision. I shall feel bound to do so if it afforded any real help to the appellant in the present case. But the right of appeal conferred by this decision must be, if it is anything at all, a right of appeal conferred by the Code of Civil Procedure, and any such right is expressly excluded by Section 151, Bent Act. The result is that from whatever angle one views the matter, the second appeal to this Court is incompetent and I shall have to deal with the matter in revision. The next question for consideration, therefore, is whether the learned Judge was right when he held that no appeal lay to him. That question depends upon the meaning to be attributed to Section 160 which is in these terms:

In all suits other than those, in which, when tried and decided by a Collector, the judgment of the Collector is declared to be final, or when tried and decided by a Deputy Collector an appeal is allowed to the Collector, an appeal from the judgment of the Collector or Deputy Collector shall lie to the Zilla Judge.

3. The result is that no appeal lay to the District Judge's Court unless it can be said that the word 'suit' includes execution proceedings. There are grave difficulties in any such view. Section 151 which prescribes the limit with regard to appeals distinguishes between a suit and an order after decree relating to the execution thereof. It clearly suggests that the word 'suit' does not include execution proceedings. The matter is however put beyond doubt by a very old decision of a Full Bench of this Court reported in Gobind Coomar v. Kisto Coomar ('67) 7 W.B. 520. That was a case in which the Deputy Collector had refused to make an order in the nature of restitution. The question referred was whether the High Court had power to compel him to make an order. It is quite clear that the High Court would not have exercised such powers if there had been a right of appeal to the District Court and Loch J. in delivering judgment said as follows:

I think that under the words 'shall have superintendence over all Courts' used in Section 15 of 24 and 25 Vic. Chap. 104, this Court has the power, in cases where no appeal lies to the Judge, of directing a lower Court to do that which is legal, and to correct that which is illegal in its proceedings.

4. Mr. Sanyal did not dispute that, if the District Judge wrongly refused to hear an appeal in the mistaken view that it was incompetent, this Court would have the power to direct him to hear it under Section 115. But inasmuch as the learned Judge was right in this view, it is impossible for me to set aside his order. The final questions therefore remain firstly, whether I have power and secondly, whether I ought to interfere with the order of the Deputy Collector enforcing an award which was made without jurisdiction. The question was considered in the Full Bench decision to which I have just referred for another purpose and it was there held that this Court had jurisdiction to interfere under Section 15, Charter Act. That section was succeeded by Section 107, Government of India Act of 1919 and as long as that section was in force there would have been no difficulty in dealing with the matter. That Act, however, has been repealed. The question is whether this Court has this power under the Government of India Act of 1935. Mr. Sen boldly argued that it has, in view of the provisions of Sections 223 and 224. The former preserves the existing jurisdiction of the Court and the latter confers certain administrative powers upon the Court. The wider powers under Section 107 of the old Act have been deliberately cut down. Furthermore, Sub-section (2) emphasises in fact that the powers conferred are of an administrative character. I have, therefore, no hesitation in holding that the Court has no jurisdiction under the new Act to interfere with the orders of the Deputy Collector.

5. Then, in the second place, Mr. Sanyal contended that I ought to decline to interfere because the petitioner has another remedy. That raises the question whether Section 47, Civil P.C., applies to the Court of the Deputy Collector. I should have not been prepared to brush aside Mr. Sen's argument without careful consideration: but there are two decisions of Division Benches of this Court to the effect that Section 47 does not apply: vide Damoodar Misra v. Iswar Chandra ('11) 15 C.W.N. 78 and Brojo Gopal Sarkar v. Busirunnissa Bibi ('88) 15 Cal. 179. Those decisions are binding on me. The result of them is that the petitioner has the remedy of a suit and therefore there is no reason why I should interfere in revision. There are also two other matters to which I shall refer in this connexion. The petitioner was himself a party to the arbitration. Now that it has gone against him he is trying to back out of it. Undoubtedly, in an appeal he would be successful although an appellant in his position is generally deprived of costs. But in a revision different considerations arise and I should not be prepared to give any help to a person in the position of the petitioner. Finally, the petition is not drawn in such a way that I could afford any relief to the petitioner on these lines. It is drawn under Section 115, Civil P.C., and is directed solely against the order of the District Judge. I was not even asked to interfere with the order of the Deputy Collector. The result is that the appeal is dismissed as incompetent without costs. The rule is discharged. As the plaintiffs refuse to return the money which has been improperly realised and force the petitioner into a suit, I make no order as to costs.


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