MAHARAJA SASIKANTA ACHARJEE Vs. JALIL BAKSHA MUNSHI

JUDGEMENT

(1.) The appellant obtained a decree for rent against the respondents in respect of a jote held by the latter and in execution thereof purchased the jote at an execution sale on 19th February 1923. He took delivery of possession from the Court on 14 June 1923. The respondents applied for setting the sale aside on the ground of material irregularity and the sale was set aside on 31 July 1924. The respondents applied for restitution for possession of the jote with mesne profits for a period of 13 months from Sravan 1330 to Sravan 1331.

(2.) The Munsif held that the respondents were entitled to Rs. 675 as mesne profits. The appellant then preferred an appeal to the District Judge and the respondents a cross-appeal. The District Judge dismissed the appeal and allowing the cross-appeal enhanced the mesne profits to Us. 1,620. Hence the present appeal.

(3.) It has been urged in the first place that the learned District Judge had no jurisdiction to deal with the matter because the restitution that was ordered by the Munsif was not within the purview of Section 144, Civil P.C., but was ordered by him under Section 151 in the exercise of the inherent powers of the Court. Now, in this ease no "decree" having been varied or reversed but the sale having bean set aside under Order 21, Rule 92 by the Court, Section 144 has no application; but the Court of the Munsif granted restitution in the exercise of its inherent power under Section 151. On the question as to whether an appeal would lie from such an order passed by the Munsif however there must always be two opinions. One view is that an appeal being always a creature of the statute, it is only when an order has been expressly made appeal-able by the Code that an appeal would lie. The other view is that when an order, though not strictly justified by the statutory provisions relating to such an order appealable under the Code, purports to have been made under such provisions, an appeal is competent. Acting on this view this Court has often treated orders of remand, not strictly justified by the Code, as being open to appeal. The appellant himself appears to have acted on this view in preferring an appeal to the District Judge, an appeal which opened the venue for the respondents cross-appeal to which exception is now taken. I may observe in passing that it may be a question to consider whether the appellant is entitled to approbate and reprobate in the way he desires to do, having regard to the decisions in such cases as Bindeswari v. Lakpat [1910] 8 I.C. 26 and Raghubar Dyal V/s. Jadunandan [1911] 13 I.C. 365; but I do not feel called upon to go into this question or express any opinion on it as it has not been argued at the Bar. I think the view enunciated above is the one which found favour with this Court in the case of Gnanoda Sundari V/s. Chandra Kumar De in which it was held that where a Court, acting under Section 151, Civil P.C., exercises the same jurisdiction which Section 144 of that Code gives it, the order of restitution made under Section 151 is appealable. It was observed in that case: It certainly seems a curious position that if the Court deals with the matter under Section 144, Civil P.C., an appeal lies whereas if the Court under Section 151 exercises the same jurisdiction which Section 144 gives him, but exercises that jurisdiction under Section 151, because Section 144 is not strictly applicable, no appeal lies.