NATHU Vs. SANWLA

JUDGEMENT

(1.) THE following question has been referred to this Larger Bench by a Division Bench : "whether, in the facts and circumstances of the case, an order on an application under Section 47 C. P. C. in a Rajasthan Tenancy Act matter amounts to a decree within the meaning of Section 2 (2) C. P. C. though sub-section (1) of Section 225 Rajasthan Tenancy Act provides that an appeal shall lie from an order : - (i) to the Collector, if such order is passed by a Tehsildar, (ii) to the Revenue Appellate Authority, if such order is passed by an Assistant Collector, a Sub-Divisional Officer or a Collector, and (iii) to the Board, if such order is passed by a Revenue Appellate Authority".

(2.) WE need not recapitulate the facts of the case out of which this reference arises because the same have been mentioned in detail in the order of reference. Suffice it to say that the appellants' decree holders' execution application had been dismissed as barred by time on 30-12-61. They went up in appeal against that order and that was also dismissed by the Revenue Appellate Authority on 15-9 70. Thereupon they came up in second appeal to this Board. At the time of the hearing of that second appeal before the Division Bench of this Board a preliminary objection was raised by the learned counsel for the respondents that a second appeal was not maintainable as the order dated 30-12-61 was not a decree. On hearing this preliminary objection the learned Division Bench found that there were two conflicting decisions on this question. In 1968 RRD 284 a Division Bench held that an order passed under Section 144 C. P. C. was a decree within the meaning of Section 2 (2) C. P. C. and a second appeal lay against it whereas in 1971 RRD 158 another Division Bench of this Board held that an order passed under Section 47 C. P. C. cannot be deemed to he a decree within the meaning of Section 2 (2) C. P. C. because of clause (a) of that Section in a case under the Rajasthan Tenancy Act because Section 225 Rajasthan Tenancy Act makes every order made under that Act appealable. The Division Bench which heard the preliminary objection in this case was also of the view that orders under Section 144 and Section 47 C. P. C. were of the same category under Section 2 (2) C. P. C and therefore the conflict between the two aforesaid authorities required to be resolved. Hence this reference.

(3.) NOW under the Code of Civil Procedure all orders are not appealable. Section 104 (1) C. P. C. provides, " (1) an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders. . . . . . . . . (2) No appeal shall lie from any order passed in appeal under this section. " Then Order 43 Rule 1 C. P. C. enumerates the orders from which an appeal shall lie under the provisions of Section 104 C. P. C. It is only those orders which fall under Section 104 read with Order 43 Rule 1 C. P. C. which are appealable under the Code of Civil Procedure. Naturally therefore when clause (a) of Section 2 (2) C. P. C. says 'an adjudication from which an appeal lies as an appeal from an order. ' It refers to orders appealable under Section 104 read with Order 43 Rule 1 C. P. C. or such orders as have been expressly made appealable by any law fur the time being in force. It follows further that an order under Section 47 or Section 144 C. P. C which would otherwise be included in the term 'decree' under Section 2 (2) C P. C. can be excluded from this definition if it is an order which is appealable under Section 104 read with Order 43 Rule 1 C. P. C. or expressly appealable under any law for the time being in force. Under the scheme of the Civil Procedure Code, three types of ciders are envisaged, (i) orders which are deemed to be decrees and are appealable as such, (ii) orders which are appealable as orders and (iii) orders which are not at all appealable. When we keep these three categories of orders in view, it is clear that clause (a) of Section 2 (2) refers to those orders which are appealable as orders. NOW under the Rajasthan Tenancy Act there does not appear to be any such classification. The provisions of Sections 222 to 225 provide for appeals against decrees and appeals against orders. Section 225 Rajasthan Tenancy Act says, "an appeal shall lie against an order. . . . . . " In some cases it has been held that all orders under the Rajasthan Tenancy Act are appealable under Section 225. Reference in this connection may be made to 1952 R. L. W. , Revenue Supplement 35 and 1960 R. R. D. 32. It does not say that appeal shall lie only against some orders and not others as is the case with Section 104 G. P. G. According to Section 104 C. P. C. there must be an express provision making certain orders appealable and clause (a) of Section 2 (2) C. P. C. read with Section 104 C. P. C. would therefore mean that only those orders which are made expressly appealable are to be excluded from the definition of 'decree'. Section 225 Tenancy Act therefore cannot be said to be an express provision for making orders under Section 47 and 144 appealable because it is a general provision and only lays down the forum of appeal against orders. In other words, clause (a) of Section 2 (2) would govern such cases as are under an Act which makes distinction between appealable orders and orders not appealable because if under a particular provision of an Act all the orders are held to be appealable then the distinction envisaged by clause (a) of Section 2 (2) would lose its significance. Orders under Section 47 and Section 144 have been sought to be put on a higher footing than, other orders. The reason is obvious. These orders relate to the execution, satisfaction or discharge of the decrees or restitution and they determine substitutive rights of the parties and therefore they are sought to be given the status of decrees. There are certain interlocutory procedural orders during the course of the proceedings under Section 47 or 144 which do not determine substitutive rights of the parties and therefore some of them have been made appealable under Order 43 Rule 1 and such orders are therefore taken out of the purview of decrees. If, because Section 225 Tenancy Act is taken to make all orders under the Tenancy Act appealable including orders under Sections 47 and 144 C. P. C in matters under the Tenancy Act the very purpose of this provision in Section 2 (2) C. P. C. would be frustrated because if they are taken of the definition of decree, only one appeal would lie against such order and the right of second appeal would be lost. Therefore under the Tenancy Act orders passed under Section 47 and Section 144 shall be deemed to be decrees and they shall be out of the purview of clause (a) of Section 2 (2 ). In 1971 R. R. D. 158 it has been held that "section 225 of the Rajasthan Tenancy Act has contradistinguished from Section 104 C. P. C. and Order 43 Rule 1 C. P. C. makes every order appealable. Consequently the impugned order of the S. D. O. dated 24 4 65 being appealable in terms of this provision will not be deemed to be a decree. The exception embodied in sub-sec. 2 of the clause (a) will therefore apply with all its vigours. " We are unable to endorse this view. As pointed out above, Sec. 225 Tenancy Act is not the provision as envisaged by Section 104 C. P. C and as there is no distinction between appealable orders and orders not appealable under Tenancy Act clause (a) of sub clause (2) of sec. 2will not at all come into play. The result therefore would be that all orders passed under secs 47 or 144 C. P. C. in matters under the Rajasthan Tenancy Act would be included in the term 'decree' as is envisaged by the clause "it shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144. " It is pertinent to note that Section 104 or Order 43 Rule 1 which enumerate the orders which are appealable as such do not include any order under Section 47 or Section 144 C. P. C.