MUSSEN ALI Vs. AMANAT ALI CHOWDHRY

JUDGEMENT

(1.) In this case the ground taken before us in special appeal, is that, as this was a suit to set aside a decree of the Revenue Court, under section 25, Act X of 1859, the suit cannot at all lie. I am, however, of opinion that there cannot be a decree under section 25. That section only contemplates an order passed by the Revenue Court. It is true that before such an order is passed, the Collector may, for the purpose of satisfying himself as to the propriety of granting the application for ejectment made under that section, investigate the facts, receive all the evidence bearing upon them, and enter into all the forms of a judicial enquiry, but still his decision upon it is but an order, an appeal from which under section 25 lies to the Commissioner, and not to the Judge. This view is borne out by the Full Bench ruling in the case of Phillip v. Shibnath Maitra (Case No. 7 of 1862, 1st July 1863).

(2.) I would add that there might be a suit for ejectment (as laid down in the Full Bench ruling) under clause 5, section 23, Act X of 1859, and there an appeal would lie to the Judge, and the decree would have the effect of that in a regular suit for the trial of the matter.

(3.) In this view I would dismiss this appeal with costs.