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1989 DIGILAW 401 (ORI)

PURNAMASI DEVI v. DANGI DEI

1989-11-30

S.C.MOHAPATRA

body1989
JUDGMENT : S.C. Mohapatra, J. - Plaintiff obtained a decree in a suit u/s 6 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act'). Defendant preferred an appeal against the said decree. Appellate court having entertained and allowed the appeal setting aside the decree on the ground that the suit is not maintainable, this Civil Revision has been filed. 2. Learned Counsel for the Petitioner, raises the, only question that appeal is not maintainable and appellate Court had no jurisdiction to interfere with the decree even if the same is assumed to be wrong. To appreciate the contention of the Petitioner, Section 6 of the Act is to be perused which reads as follows: Section 6: (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No. suit under this section shall be brought. (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section, shall bar any person from suing to establish his title to such property and to recover possession thereof. Sub-section (3) thereof makes it clear that no appeal lies from any decree passed in any suit instituted u/s 6. 3. Appeal is a right created under the Statute. 'If there would have been no specific provision for an appeal, no appeal could have been preferred. Where there is a clear provision as in Section 6(3) that an appeal shall not lie, appellate Court could not have entertained the same. A party not raising the question or even giving consent far entertaining the appeal will not clothe the appellate Court to exercise jurisdiction since acquiescence or consent does not confer jurisdiction which is prohibited by Statute. Accordingly, the judgment of the appellate Court is liable to be set aside. Appellate Court should now consider whether the appeal is maintainable. 4. In the result, Civil Revision is allowed. Accordingly, the judgment of the appellate Court is liable to be set aside. Appellate Court should now consider whether the appeal is maintainable. 4. In the result, Civil Revision is allowed. Appellate judgment is set aside and the matter is remitted back to the appellate Court for consideration whether the appeal is maintainable. No costs. Revision allowed. Final Result : Allowed