PANNA LAL Vs. BASDEO

JUDGEMENT

(1.) This is an application in revision by the defendant from an order of an Assistant Collector of the First Class setting aside an order of dismissal of a suit for profits and restoring the suit to its original number. A preliminary objection has been taken to the hearing of this application on the ground that no revision lies to this Court. The suit for profits was filed on 18th July 1931. The suit was adjourned on several occasions to enable the plaintiff to produce the evidence and ultimately on 20th November 1931 the suit was adjourned with a view to enable the plaintiff to produce the patwari along with the khatauni. The next date fixed in the case was 18th January 1932. On that date the plaintiff failed to produce the patwari or the khatauni, and the Court dismissed the suit "for want of prosecution." On the same date, viz., 18th January 1932, the plaintiff filed an application for the setting aside of the dismissal of the suit and for its being restored to its original number. It was not stated in the application as to whether the application was an application for review under Order 47, or an application under Order 9, Rule 9, Civil. P.C. The application was put up before the learned Assistant Collector on the same date and he passed the following order:

(2.) The Assistant Collector proceeded to deal with the application on 19th January 1932. The defendant was not present in Court and then the Assistant Collector recorded the following order:

(3.) In the order quoted above the Assistant Collector did not state as to whether he was restoring the suit, under Order 9, Rule 9, Civil P.C, or that he purported to pass the order under Order 47, Rule 4, Civil P.C. The defendant being aggrieved by this order has come in revision to this Court. In support of the preliminary objection Mr. Pathak relics on Sections 248 and 253, Agra Tenancy Act 3 of 1926. Section 253 of the Act provides that the High Court may call for the record of any suit or application which had been decided by any subordinate Revenue Court and in which an appeal lies to the District Judge and in which no appeal lies to the High Court provided the subordinate Revenue Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. It is clear from the provisions of this section that the revisional powers of the High Court under the Agra Tenancy Act arc restricted to cases in which the decree or the order sought to be revised is appealable to the District Judge. Section 248(3) of the Act provides for appeals against orders mentioned in Sections 47 and 104 and in Order 43, Rule 1, Civil P.C.; and the appeals against such orders lie to the Court having jurisdiction under Section 242 of the Act to entertain appeals from the decrees in the suit, or in the case of applications for execution having jurisdiction to hear an appeal from the decree which is being executed. By Section 242 the District Judge is empowered to entertain appeals from certain decrees. It is manifest therefore that unless an order comes within Section 47 or Section 104 or Order 43, Rule 1, Civil P.C, no appeal lies to the District Judge. In the present case it is contended by Mr. Pathak that the order dated 19th January 1932, passed by the Assistant Collector was an order under Order 9, Rule 9, Civil P.C, and as by that order he granted the application for restoration of the suit, no appeal against that order lay under Order 43, Rule 1, Civil P.C. and therefore that order was not appealable to the District Judge, and as such, the provisions of Section 253, Agra Tenancy Act, have no application, and accordingly we cannot revise that order.