Safdar Ali v. Sital Prasad Shukla — 1962 DIGILAW 163 (ALL)

JUDGMENT B. N. Nigam, J. - This is a special appeal against an order passed by a learned Single Judge of this Court on 11th May, 1962 in Second Appeal No. 181 of 1962. 2. The facts as stated in the application for injunction under Or. XXXIX, Rr. 1 and 2, C.P.C. are as under : 3. The applicants Safdar Ali and three others are owners of a building in Gwynne Road, Lucknow. On January 1, 1944 this building with the exception of two rooms was leased out to Sital Prasad Shukla, opposite party, at a rental of Rs. 110 per month. On the expiry of this period of lease, a renewal for six years at an enhanced rental of Rs. 175 per month was agreed upon. The two rooms which were excluded from this tenancy were occupied by one Hakim Ali Shabbar and Muddi Khan respectively as tenants of the applicants. In the year 1957, however, the opposite party Sital Prasad filed a suit for arrears of rent and ejectment against Hakim Ali Shabbar (Regular Suit No. 332 of 1957 Court of Munsif North, Lucknow). The suit was decreed. Hakim Ali Shabbar, so it is asserted, vacated the room on 7th July 1959 and delivered possession to the applicants. Then the opposite party, Sital Prasad Shukla, made an application for execution of the decree. The applicants offered resistance. This execution application was consigned to records. A second execution application (Case No. 302 of 1959, Court of Munsif North, Lucknow) was filed. The applicants preferred an objection that they are in possession in their own right. This objection was rejected on 25th April, 1960 on the ground that the applicants were no parties to the suit. Then on May 9, 1960 the applicants filed a suit for permanent injunction (Regular Suit No. 186 of 1960, Court of Munsif North, Lucknow). The suit was dismissed on 29th July 1961. An appeal was taken to the Court of the District Judge on September 5, 1961. This appeal was dismissed on 13th February, 1962 by the learned Civil Judge, Mohanlalganj. A second appeal was filed in this Court (Second Appeal No. 181 of 1962). On the 16th February, 1962, an application under Section 151 and Rr. 1 and 2 of Or. XXXIX, C.P.C. praying for a temporary injunction restraining the opposite party from executing his decree was also claimed. A second appeal was filed in this Court (Second Appeal No. 181 of 1962). On the 16th February, 1962, an application under Section 151 and Rr. 1 and 2 of Or. XXXIX, C.P.C. praying for a temporary injunction restraining the opposite party from executing his decree was also claimed. This application has been rejected by a learned Single Judge of this Court. The order was passed on May 11, 1962 and today this special appeal has been presented. 4. The question for our consideration is whether the appellants are entitled to file a special appeal as a matter of right or whether they can do so only with the permission of the learned Judge who passed the order under appeal. 5. We have heard the learned argument of Mr. K.S. Varma and we concede that he has advanced an ingenious argument. He has referred to R. 5 of Chap. VIII of the Rules of Court. That Rule reads: "An appeal shall lie to the Court from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree............made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the Court...........of one Judge....." 6. In our opinion there can be no doubt that the decree passed by the learned Civil Judge, Mohanlalganj, was passed in the exercise of an appellate jurisdiction by a Court subject to the superintendence of this Court. There is no challenge on that point. The only question is whether the order passed by the learned Single Judge is a judgment "passed in the exercise of appellate jurisdiction." Mr. Varma has referred to the definition of judgment given in Sec. 2(9), C.P.C. There judgment has been stated as meaning: "The statement given by the Judge of the grounds of a decree or order." We, therefore, agree with the learned counsel that the order passed by the learned Single Judge in this case is a judgment. It appears that this order was passed by the learned Single Judge in the exercise of the appellate jurisdiction against an appellate decree. It appears that this order was passed by the learned Single Judge in the exercise of the appellate jurisdiction against an appellate decree. The argument of the learned counsel appears to be that emphasis should be placed on the words "in respect of a decree." Apparently the learned counsel wishes to narrow the meaning of the earlier phrase and wishes to limit the scope of the earlier phrase "the orders passed in respect of a decree." According to him the order passed must be in respect of the decree and not any other order. That would mean that any orders which were not passed concerning the decree itself would be orders passed in the exercise of jurisdiction other than "in the exercise of appellate jurisdiction in respect of a decree" and, therefore, will not come within the prohibitory clause cited above. It would naturally follow that the petitioners would have an absolute right of preferring an appeal against the order of the learned Single Judge. 7. We have not found it possible to accept the contention of the learned counsel. It appears to us that a second appeal was filed before this Court and whatever orders were passed in any matter arising in that appeal would be orders passed `in the exercise of appellate jurisdiction in respect of the decree.' We are not concerned with the words "or order" because this was not an appeal against an order. The jurisdiction vested in the Court was because of an appeal having been preferred to it against a decree. Whatever jurisdiction, specifically provided under the Code or the inherent jurisdiction of the Court, was to be exercised was only because the Court was seized of a second appeal. Thus all orders passed on interim applications, stay applications and even applications for appointment of guardian or adjournment applications must be considered to be orders passed in the exercise of appellate jurisdiction in respect of an appellate decree passed by a Court subject to the superintendence of this Court. That being so, we are unable to see how the petitioners have an absolute right of preferring a special appeal. 8. We need not enter into the question whether a special appeal would be maintainable even with the permission of the learned Single Judge. That question does not fall for our consideration today and we express no opinion on that point. 9. 8. We need not enter into the question whether a special appeal would be maintainable even with the permission of the learned Single Judge. That question does not fall for our consideration today and we express no opinion on that point. 9. No other point has been pressed before us. 10. We, accordingly hold that this appeal is incompetent. We reject it.