BABUNI Vs. MAHADEO

JUDGEMENT

(1.) I have heard learned counsel for the parties. The order passed by the IV Additional Munsif, Kanpur is totally without jurisdiction. It appears that in a suit before the said Munsif an issue was referred to the revenue court. In the revenue court the defendant made a default and the revenue court recorded a finding in his absence and sent it back to the Civil Court, An application was made by the defendant in the revenue court for setting aside the finding. As the revenue court had already sent the file, I am told it passed no orders on the application, and thereafter an application was made before the learned Munsif for setting aside the finding. It was on this latter application that the Munsif has set aside the finding in exercise of his powers under Section 151, Civil Procedure Code.

(2.) I have heard learned counsel for the parties. Obviously the order passed by the learned Munsif is without jurisdiction. When the issue was referred to the revenue court and the revenue court also gave a finding whether ex parte or after contest, the Munsif had to accept that finding and had to act upon it. Whosoever may have been a fault for the ex parte decision perhaps it was the defendant who was at fault--in spite of the default or in spite of the want of knowledge on the part of the defendant, the Civil Court could not act as a court of appeal and set aside the finding in exercise of its assumed inherent jurisdiction which it had none.

(3.) Learned counsel for the opposite party has also contended that some direction may be given as to how this difficulty is to be met. In a case of this type what should ordinarily be done is that when a finding is received by the Civil Court from the revenue court, the Civil Court should decide the suit on the finding of the revenue court an on its own finding to be given on other issue if any. After the suit is decided, if it is against the defendant, he should go in appeal and there the appellate court is bound to give its own fining on the issue referred to the revenue court or shall, remand the case to the Munsif with necessary directions. In this case the order passed by the learned Munsif is without jurisdiction. He could not apply the provisions of Section 151 and set aside the finding given by the revenue court. The order must, therefore, be set aside.