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1941 DIGILAW 113 (ALL)

Hakim Ali v. Shanker Lal

1941-11-24

VERMA, YORKE

body1941
JUDGMENT Verma and Yorke, JJ. - This is a reference by the learned Additional Commissioner of Meerut u/s 289 of the U.P. Tenancy Act (XVII of 1939) The question that hag been referred to this Court for decision is whether an appeal, presented by certain judgment-debtors against an order passed upon an application to set aside a sale held in execution of a decree for arrears of rent, lay to the District Judge or to one of the superior revenue Courts. 2. The material facts, so far as we can gather them from the papers before us, appear to be these. A suit for the recovery of arrears of rent was instituted in the Court of an Assistant Collector of the first class. The suit was evidently of the description mentioned at serial number 4, Group A, of the Agra Tenancy Act (III of 1926). It was valued at over Rs. 200. The Assistant Collector of the first class decreed the suit on the 10th of September, 1931. In execution of this decree certain property of the nature contemplated by serial No. 13 of List II of the Second Schedule of the Agra Tenancy Act of 1926 was attached and was sold on the 20th of May 1937. The nature of the property sought to be attached and sold being as mentioned above, the decree although it had been passed by an Assistant Collector of the first class, had to be sent to the Collector for execution under the provisions contained in serial No. 13, List II, Second Schedule of the Tenancy Act of 1926. This procedure was followed and the decree was executed by the Collector. The sale was confirmed by the Collector on the 25th of June 1937. Several months later, namely, on the 3rd of February 1938, an application was filed by the judgment debtors praying that the sale be set aside on the ground that there had been material irregularity or fraud in publishing or conducting it. This application must be taken to have been made under Order 21 Rule 90 of the Code of Civil Procedure, as is evident from the provisions contained in Section 264 and the Second Schedule of the Tenancy Act of 1926. This application must be taken to have been made under Order 21 Rule 90 of the Code of Civil Procedure, as is evident from the provisions contained in Section 264 and the Second Schedule of the Tenancy Act of 1926. Omitting Clause (a) and (b) of Section 264, with which we are not concerned in this case, it is apparent that the whole of the Code of Civil Procedure, except the provisions mentioned in List I of the Second Schedule, was made, applicable to all suits and other proceedings under that Act, subject to the modifications contained in List II of the Second Schedule. Order 21 of the Code was 'not mentioned in List I of the Second Schedule. The result is that the whole of that Order was applicable to proceedings under the Act, subject to the modifications stated against serial number 12 and 13 of List II. The Court that had jurisdiction to hear the judgment debtors' application mentioned above was the Court of the Collector. Section 238 of the Tenancy Act of 1926, however, authorised the Local Government to confer on an Assistant Collector of the first class all or any of the powers of a Collector under that Act. The application was accordingly heard by an Assistant Collector of the first class invested with the powers of a Collector under the provisions of the section just mentioned. He dismissed the application on the 29th of October, 1938. The judgment-debtors thereupon presented a memorandum of appeal against the order of the 29th of October, 1938, to the Court of the District Judge. The appeal came up for hearing before an Additional District Judge. A preliminary objection was taken on behalf of the decree-holders Respondents to the effect that the appeal did not lie to the District Judge. This preliminary objection found favour with the Additional District Judge and by his judgment dated the 10th May, 1939, he directed that the memorandum of appeal be returned to the Appellants "for presentation to proper Court". The memorandum of appeal was thereupon filed by the judgment debtors Appellant in the Court of the Collector. This preliminary objection found favour with the Additional District Judge and by his judgment dated the 10th May, 1939, he directed that the memorandum of appeal be returned to the Appellants "for presentation to proper Court". The memorandum of appeal was thereupon filed by the judgment debtors Appellant in the Court of the Collector. By his order dated the 23rd of June, 1959, the Collector held that he had no jurisdiction to entertain the appeal for the obvious reason that the order against which the appeal had been filed had been passed by a Court exercising a jurisdiction which was concurrent with the jurisdiction of the Collector himself and not by a Court which in the particular matter was in any way subordinate to the Court of the Collector. The judgment-debtors thereupon took their memorandum of appeal to the court of the Commissioner. The matter came up before the learned Additional Commissioner and he his made this reference to this Court by his order dated the 21st of October 1940. He has expressed the opinion that, the learned Additional District Judge was not right in holding that the appeal did not lie to the Civil Court. 3. Having perused the papers and having heard Learned Counsel appearing for the; judgment-debtors--no appearance having been made on behalf of the decree-holders or the auction purchasers--we have come to the conclusion that the learned Additional Commissioner is perfectly right in the view which he had expressed and that the learned Additional District Judge was wrong in holding that no appeal lay to the District Judge. 4. It seems to us that the learned Additional District Judge entirely misunderstood the law. The first error into which the learned Judge feel was in thinking that the judgment-debtors' application for the setting aside of the sale fell under paragraph 997 of the Revenue Manual read with Order 21 Rule 90 of the Code of Civil Procedure. Paragraph 997 occurs I in Chapter XL of the Manual and the heading of that Chapter shows that it deals only with the sale of ancestral land in execution of civil court decrees. Paragraph 997 occurs I in Chapter XL of the Manual and the heading of that Chapter shows that it deals only with the sale of ancestral land in execution of civil court decrees. The decree which was under execution in the present case was not a civil court decrees, transferred for execution, to the Collector in accordance with the provisions contained in Section 68 of the Code of Civil Procedure, to the execution of which the provisions of the Third Schedule of that Code applied. That being so, the whole of Chapter XL of the Revenue Manual was inapplicable. The learned Additional District Judge then referred to paragraph 1011 of the Revenue Manual and expressed the opinion that there was some conflict between that paragraph of the Manual and Section 248 of the Tenancy Act of 1926. Paragraph 1011 of the Manual is also in chapter XL and has nothing, to do with a case in which the decree sought to be executed, had been passed by the revenue Court. The learned Additional District Judge's references to Sections 68 and 70(1)(c) of the CPC were similarly erroneous. The learned Additional Commissioner is perfectly right in pointing out that Sections 68 to 72 of the CPC apply to decrees passed by Civil Courts the execution of which is 'transferred' to the Collector in accordance with provisions of Section 68 of that Code and do not apply to cases sin which the decree has been passed by a Revenue Court. The learned Additional District Judge seems, further, to have been labouring under some confusion when he referred to Section 47 of the Code of Civil Procedure. The order against which the judgment-debtors desire to appeal is an order passed under Rule 92 of Order 21 of the Code upon an application under Rule 90 of that Order. Such an order is appealable as an order under the provisions of Order 43 Rule (1)(j) of the Code, whereas orders which come within the purview of Section 47 of the Cod e amount to decrees by virtue of the definition of "decree" contained, in Section 2(2) of the Code and are, appealable as such. Such an order is appealable as an order under the provisions of Order 43 Rule (1)(j) of the Code, whereas orders which come within the purview of Section 47 of the Cod e amount to decrees by virtue of the definition of "decree" contained, in Section 2(2) of the Code and are, appealable as such. The contention of the counsel for the judgment-debtors Appellants that the order in question was appealable to the District Judge in view of the provisions of Section 248 read with Section 242, of the Tenancy Act of 1926, was perfectly correct The material portion of Sub-section (3) of Section 248 runs thus: An appeal shall lie from the following orders...of a Collector, namely, orders mentioned...in Order XLIII, Rule 1, of the Code of Civil Procedure,. 1908. Such appeal shall lie to the Court, if any, having jurisdiction u/s 242 of this Act to hear an appeal from the decree in the suit, or in the case of applications for execution, the Court -having jurisdiction to hear an appeal from the decree which is being-executed. 5. As has already been stated, the amount or value of the subject-matter of the suit in the present case exceeded Rs. 200, it is obvious, therefore, that the appeal from the order of the 29th of October, 1938, lay to the Court of the District Judge. We entirely agree with all that the learned Additional Commissioner has said on the subject in his order of reference. That is our answer to the reference.