SM. RADHARANI DAS Vs. SISIR KUMAR

JUDGEMENT

(1.) THIS Rule is directed against an order of the learned Munsif, First Additional Court, Alipore, rejecting the petitioner tenant's application for rescission of an ejectment decree obtained against her by the landlords opposite parties. The application was made under Section 6, West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 (West Bengal Act 62 of 1950) which runs as follows: 'Where at any time between the commencement of the said Act (West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 -West Bengal Act 17 of 1950) and of 'this Act' (West Bengal Act 62 of 1950) an order or decree for the recovery of possession of any premises has been made or passed by any Court but possession of such premises has not 'been recovered in execution of such order or decree and the Court is of opinion that the order or decree would not have been made or passed if 'this Act1 had been in force when the order or decree was -made or passed, the Court may, on application by the tenant within sixty days of the commencement of 'this Act' rescind, or vary the order or decree on such terms and conditions as it deems necessary for the purpose of giving effect to the provisions of Section 18 of 'the said Act' as amended by 'this Act'.'

(2.) THE application was rejected by the learned Munsif on 26 -5 -1951 and the propriety of this decision is the subject -matter of the present Rule which is opposed by the landlords.

(3.) THE question thus arises whether the learned Munsif's decision rejecting the petitioner's application under Section 6, Rent Control (Amendment) Act (West Bengal Act 62 of 1950) is in law appealable. That question is of considerable difficulty and importance and in answering the same we have preferred to follow the line of least resistance. We are free to confess that we have reached our conclusion not without some hesitation but we have at least this satisfaction that that conclusion has the support of the highest judicial authority. It is well settled that appeal is a creature of statute: vide 'Sandback Charity Trustees v. North Staffordshire Rly. Co.', (1877) 3 QBD 1(A) and 'Rangoon Botatoung Co. Ltd. v. The Collector, Rangoon', 39 Ind App 197 (PC)(B) and it is not disputed that there is no specific provision in the Rent Control Act (West Bengal Act 17 of 1950) or in the Amending Act (West Bengal Act 62 of 1950) referred to above, authorising an appeal from a decision under Section 6 of the Amending Act 62 of 1950 or Section 18 of the Original Act (Act 17 of 1950) whether in its amended form to which the Amending Act in its Section 6 specifically refers or as it stood before the amendment. It is also equally well settled that when a legal right is in dispute and the ordinary Courts of the country are seised of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal: vide 'Adaikappa Chettiar v. Chandrasekhara Thevar' . There can be little doubt that in an application under Section 6 of the Amending Act 62 of 1950, or Section 18 of the original Act (Act 17 of 1950), whether before or after the amendment, a legal right is in dispute and that the ordinary civil Court of the country is in seisin of the same, that is, of such dispute. If, therefore, the decision of such an application falls within the provision or provisions which authorise appeals from decisions of civil Courts, its appealability would be beyond question. The Code of Civil Procedure contains the general law of appeals in relation to civil Court decisions. Under it decisions or adjudications of civil Courts are divided into two classes, viz. decrees and orders. Decrees are as a rule appealable excepting decrees passed on consent. Orders are appealable only when they fall within Section 104 or Order 43, Rule 1 of the Code. Admittedly the impugned decision with which we are here concerned cannot be brought within any of these latter provisions namely, Section 104 and Order 43, Rule 1 of the Code. The relevant enquiry therefore is whether it satisfies the tests or requirements of a decree under the Code of Civil Procedure.