BIKRAM SINGH Vs. DIP SINGH

JUDGEMENT

(1.) This and the connected appeal arise out of two suits instituted by Thakur Dip Singh in the Court of the Munisif of Moradabad against Bikram Singh, Raghubir and Others, and aginst Kallu Singh others, for a declaration that certain she- buffaloes and a calf were not liable to attachment and sale in execution of decrees Nos. 512 and 515 of 1927 obtained by Bikram Sungh against Raghubir Singh and others for arrears of rent from the Court of an Assistant Collector, Second Class. Bikram Singh in execution of his decrees attached these buffaloes as the property of his judgment-debtors. Dip Singh, plaintiff, intervened with the objection that the buffaloes in question belonged to him and did not belong to the judgment- debtors. His objections were allowel by the Assistant Collector, Second Class. Bikram Singh appealed to the Collector under Section 247, Agra Tenancy-Act (Act 3 of 1926). His appeals were allowed and the appellate Court held that the buffaloes were the property of the judgment-debtors. This led to the institution of the present suits. The Court of first instance decreed both the suits. The defendant appealed and the lower appellate Court has affirmed both the decisions. The finding of the lower appellate Court, in concurrence with the trial Court, is that the buffaloes are the property of Thakur Dip Singh, plaintiff-respondent.

(2.) Bikram Singh appeals and the sole point urged is that having regard to the provisions of Section 264, Agra Tenancy Act, the suit in the civil Court is misconceived and that no suit lies. It has been argued that an order under Order 21, Rule 58, Civil P.C., passed by an Assistant Collector of the Second Class was open to appeal to the Collector under Section 247, Agra Tenancy Act and that in such a case the appellate order of the Collector is final and that it is not within the competence of the civil Court to entertain a suit under Order 21, Rule 63, Civil P.C., with a view to overset the appellate order of the Collector. Reliance has been placed upon Section 264, Agra Tenancy Act, in support of this contention. Section 264 provides that the provisions of the Civil Procedure Code of 1908, except, (a) provisions inconsistent with anything in this Act so far as the inconsistency extends..., shall apply to all suits and other proceedings under this Act, subject to the modifications contained in list 2, Schedule 2.

(3.) The suits instituted by Thakur Dip Singh for a declaration of title to the buffaloes in controversy are not suits or proceedings under Act 3 of 1926 (local) but are suits instituted under Order 21, Rule 63, Civil P.C. Section 264, Agra Tenancy Act does not provide that the right of suit which a party has under Order 21, Rule 63, Civil P.C. is not exercisable in cases where the orders of the Collector, Second Class, in proceedings under Order 21, Rule 58 are appealable to the Collector and have been taken in appeal before that officer and disposed of by him. The policy of the legislature was not to give conclusiveness to orders passed in summary proceedings under Order 21, Rule 58, Civil P.C. There is nothing in the text of Act 3 of 1926 to indicate that the legislature intended to invest the appellate order of the Collector with finality. Moreover the right of suit given under Order 21, Rule 63, Civil P.C., is in no way inconsistent with Section 247, Agra Tenancy Act, or any other section of that Act.