HET RAM Vs. COLLECTOR OF ALIGARH

JUDGEMENT

(1.) This is an appeal by the defendant against an order of remand passed by the learned District Judge of Agra in an appeal against a decree of an Assistant Collector of the first class in a suit for profits under Section 227, Agra Tenancy Act of 1926. A preliminary objection has been raised to the effect that no appeal lies against the order in question. The appeal was filed in this Court on 2 May, 1938 when the Tenancy Act of 1926 was in force. In view of the provisions of the Act and of the decision in Rameshwar Dayal V/s. Om Prakash , among others, the learned Counsel for the appellant does not find it possible to contend that the appeal, when filed in this Court, was competent. He however points out that since the institution of this appeal a new Tenancy Act, being U.P. Act 17 of 1939, has come into existence, and contends that his appeal, although it was incompetent when filed, has become competent by virtue of the provisions of this Act. Reference is made to Section 296 of the new Act. The relevant portion of that section reads thus: A suit under any of the provisions of the Agra Tenancy Act, 1926...which is pending at the commencement of this Act...shall be decided...in accordance with the corresponding provision of this Act and if there is no such corresponding provision, the proceeding relating to such suit...shall be quashed.

(2.) It is argued that an appeal is a continuation of a suit. He next refers to Section 272 of the new Act which lays down that no appeal shall lie from any order passed in appeal under the provisions of Sub-section (7) of Section 126, Section 270 or Section 271, and contends that as the appeal to the District Judge, in which the order of remand in question has been passed, was not under the provisions of Section 126(7), Section 272 or Section 271 of this new Tenancy Act, 17 of 1939, a right of appeal exists under the new Act as the prohibition contained in Section 272 of that Act is not applicable to the case. It may at the very outset be pointed out however that the appeal in the Court of the District Judge had been filed, not under any provision of the Tenancy Act of 1939, which was not in existence when that appeal was filed, but under Section 242, Tenancy Act of 1926. Apart from that, the argument advanced by the learned Counsel for the appellant is, in my opinion, without force for several reasons. A right of appeal is a creature of statute. No litigant can claim a right of appeal un-less that right is expressly conferred by the statute. The argument that Section 272 of the new Tenancy Act does not contain any prohibition against the right of appeal claimed in the present case can be of no assistance to the appellant. It is necessary for him to show that the statute affirmatively confers a right of appeal against an order of this character. Section 263 of the new Act provides that "no appeal shall lie from any decree or order passed by any Court under this Act except as provided in this Act."

(3.) None of the sections which follow gives a right of appeal against an order of remand passed by a District Judge in an appeal against a decree of an Assistant Collector of the first class in a suit for profits. I am of opinion therefore that the new Act does not provide for an appeal against such an order. Further, I am unable to accept the argument that this appeal, which admittedly was incompetent on the date when it was filed, could become competent as the result of the passing of the new Act subsequently. An order or decree which, under the pro. visions of the statute in force on the date of the passing of the order or decree, is final, cannot lose its finality by reason of the passing of subsequent legislation. It is sufficient to refer to the decision of their Lordships of the Privy Council in Delhi Cloth & General Mills Co. Ltd. V/s. Income-tax Commissioner, Delhi . For the reasons given above, I hold that no appeal lies to this Court in this case. The appeal is accordingly dismissed with costs.