SATYA NIDHAN BANERJI Vs. MDHAZABBUR ALI KHAN

JUDGEMENT

(1.) This is a defendant's appeal from an" order of the District Judge refusing to restore a revenue appeal which had been dismissed for default, A preliminary objection is taken that no appeal lies from the order. In two cases between the same parties Satya Nidhan Banerji V/s. Muhammad Hazabbur Ali Khan , decided on 23 December 1930, Mukerji and Bonnet, JJ. came to the conclusion that such an order was an "an order passed in appeal" within the meaning of Section 249 and that therefore no further appeal lies to the High Court. The learned advocate for the appellant contends that the District Judge in dismissing the application for restoration was not passing an order in the appeal itself, but was disposing" of the matter which arose in his own Court and in respect of which an original application had been filed before him. Assuming that Section 249 is capable of another interpretation, we are clearly of opinion that in the absence of any provision in the Tenancy Act for an appeal from such an order no appeal would lie.

(2.) We may point out that a Full Bench of this High Court in Zohra V/s. Mangu Lal [1906] 28 All. 753, a case which arose under the old Tenancy Act, laid down that no appeal lay from the order as distinguished froth the decree of an Assistant Collector of the first class. This Full Bench case was followed by this Court in a number of cases in which it was that held that appeals from orders did not lie at all unless expressly provided in the Act.

(3.) We have corresponding provisions in the new Tenancy Act which lead to the same conclusion. Section 210 expressly fixes the appellate jurisdiction of Courts and lays down that no appeal shall lie froth any decree or order passed by a Court under this Act except as provided in this Act. It accordingly bars all appeals unless expressly provided. Secs.241 and 242 deal with appeals from original decrees Secs.243 to 246 deal with appeals from appellate decrees. Then begins a new heading. "Appeals from orders" under which Secs.247, 248 and 249 appear. These sections deal with appeals from orders in special cases. It is noteworthy that Order 43, Rule 1, Civil P.C. as well as Section 104 of that Code have been made applicable in express terras to a particular class of orders passed by the subordinate Revenue Courts. The whole of Order 43, Rule 1, has not been made applicable. Had the whole of that order been applicable by virtue of some other provisions of this Act, there would have been no necessity to apply it in express terms in Section 248, Sub-section (3). It seems to us that the intention of the legislature was to lay down a self-contained Code providing for appeals from orders in special cases, and that appeals from all other orders are excluded.