BADAM SINGH Vs. MTKASTURI KUNWAR

JUDGEMENT

(1.) This is an appeal by the judgment debtor objectors arising out of a suit in the revenue Court for arrears of rent. Part of the amount of the decree had remained unpaid, and the Assistant Collector on 25 June 1928 ordered the ejectment of the objectors. On 6 August 1928 they applied for a review of the order, but the application was not based on the discovery of any new and important matter, but merely on the ground of hardship; and the application was also made not to the Assistant Collector who had previously ordered their ejectment but to his successor-in-office. This application was finally allowed and the previous order for ejectment was set aside. By the same order the new Assistant Collector directed that the applicants would pay interest for the period of the execution together with costs. The decree-holder filed an appeal before the District Judge who overruled the objection that no appeal lay to him and set aside the order of the new Assistant Collector granting the review.

(2.) A first appeal from order has been preferred from the order of the District Judge. A preliminary objection is taken on behalf of the respondent that no appeal lies. The learned advocate for the applicants replies that, if no appeal lies, their appeal may be treated as a revision and the order of the District Judge be set aside on the ground of want of jurisdiction. It was held by a Bench of which I was a member in Jagdeo Singh V/s. Kesho Prasad Singh that under the new Tenancy Act no revision lies from an order of the District Judge disposing of a revenue appeal. The result may be very unfortunate inasmuch as the District Judge may in some cases act without jurisdiction; nevertheless the High Court would be powerless and would be unable to interfere. This was the view held by a Full Bench of this Court under the old Tenancy Act. The position has become clearer in view of the fact that Section 115, Civil P. C, has been expressly excluded under Schedule 2 attached to the new Tenancy Act. This however is a matter for the legislature to consider.

(3.) It is also quite clear that, if the order passed by the Assistant Collector was an appealable order, there would be no further appeal to the High Court from the order passed in appeal by the District Judge. Section 249 expressly provides that no appeal shall lie from an order passed in appeal. It is therefore obvious that, if the order of the new Assistant Collector was an order granting a review under Order 47 read with Order 43, Rule 1 (w), then an appeal certainly lay under Section 248, Sub-clause (3). Such appeal would lie to the Court having jurisdiction under Section 242 to hear an appeal from the decree in the suit. As the valuation of the suit for arrears of rent was above Rs. 200, the appeal would have ordinarily lain?to the District Judge (Sch. 4. group A, serial No. 1). There is a further difficulty in the way of the objectors, viz., that there would be no appeal from the order passed by the District Judge on appeal.