MAROTU GURANNA Vs. KSHETRI MOHANTY

JUDGEMENT

(1.) This is an appeal from an order of the Agency Subordinate Judge, Jeypore, refusing an application to rehear an appeal which had been decreed ex parte. The appellant brought a suit for possession of certain land in the Court of the Agency Munsif, and obtained a decree. The defendant appealed to the Subordinate Judge. The first date fixed in this appeal was 1 January 1940. On 6 January 1940 the appellant had taken delivery of possession of the property. On 9 January the peon reported service of the appeal notice by affixing. On 19 January the appeal came up for hearing. The appellant was absent, and the appeal was heard ex parte and decreed, dismissing the suit. On 16 February, the appellant made an application, which he supported by an affidavit, stating that service had not been made upon him even by affixing and he had no knowledge of the appeal. There was no counter-affidavit and no witnesses were examined on either side. But on 27 March the Subordinate Judge dismissed the application without costs, remarking that the return of the process-server was to the effect that on account of temporary absence of the petitioner from home the appeal notices were served by affixing. No other reason for non-appearance in Court was stated in the affidavit.

(2.) Accordingly, he did not find sufficient reasons for setting aside the judgment and re-hearing the appeal. Ordinarily speaking, an appeal from this order would lie under the provisions of Order 43, Rule 1(t), Civil P.C., but Mr. P.C. Chatterji for the respondent has made a preliminary objection that the Civil Procedure Code has no application in the agency area. Consequently the case is governed by the Agency Rules, and under these rules there is no provision for an appeal in the case of an order such as this. Therefore he says, no appeal lies. Mr. Chatterji points out that under Section 4(1), Civil P.C., "In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred; or any special form of procedure prescribed, by or under any other law for the time being in force." Moreover Section 1(3) says: "This section and Secs.155 to 138 extend to the whole of British India, the rest of the Code extends to the whole of British India, except the Scheduled Districts."

(3.) The Agency Rules were made by Government under the Scheduled Districts Art. 14 of 1874. The list of Scheduled Districts appears in Schedule 1 to that Act, and includes in Vizagapatam the Jeypore zatnindari. Act 14 of 1874 was repealed in 1937 by the Government of India (Adaptation of Indian Laws) Order, 1937. But the repeal was in these terms: "This Act shall cease to have effect, without prejudice, to the continuing authority of any notification, appointment, regulation, direction or determination made thereunder and in force immediately before the commencement of Part III, Government of India Article, 1935." It is, therefore, clear that despite the repeal of the Scheduled Districts Act, 1874, the Agency Rules as a regulation under the Act continued in force and are still valid. Mr. Chatterji further contends that though the Scheduled Districts Act was repealed in 1937, its place was taken by Section 92, Government of India Article 1935. Section 91(1), Government of India Act, runs: "In this Act the expressions excluded area and partially excluded area mean respectively such areas as His Majesty may by Order in Council declare to be excluded areas or partially excluded areas. The Secretary of State shall lay the draft of the Order which it is proposed to recommend His Majesty to make under this Sub-section before Parliament within six months from the passing of this Act." An Order in Council was accordingly passed in 1936. It is the Government of India (Excluded and Partially Excluded Areas) Order, 1936, and it includes, amongst the partially excluded areas, "The areas transferred to Orissa under the provisions of the Government of India (Constitution of Orissa) Order, 1936, from the Vizagapatam Agency in the Presidency of Madras."