ZAKARALI Vs. ISRAR HUSSAIN

JUDGEMENT

(1.) THIS is an application to revise an order dated 5-2-1944 passed by the First Subordinate Judge, 2nd Class, Jubbulpore, in execution proceedings arising out of Civil Suit No. 10-A of 1942 filed under Section 9, Specific Relief Act.

(2.) THE facts are that the non-applicants instituted the above named suit under Section 9, Specific Relief Act, as representatives of the Majlise Refahe Momineen claiming possession of an Imambara. That suit was compromised by the parties and in pursuance of their agreement of compromise a decree was passed on 4-12-1942, the material terms of which were as follows: (i) The Refah (Majlise-refiahe-momineen) Jubbulpore shall have right to perform its function in the Imambara in suit as heretofore till such time as the said Refah does not own its own Imambara. (ii) If and when the defendant or his legal representatives shall like the aforesaid Refah to stop its functions in the Imambara in suit and to remove its office therefrom the defendant or his legal representatives shall give a written notice giving the said Refah 6 months time to make its own arrangements.

(3.) THE learned Counsel for the non-applicants in limine raised the point that this Court has no jurisdiction to revise the order as it was appealable under Section 47 of the Civil Procedure Code, on the authority of Sabapahty v. Vanmahalinga A.I.R. 1915 Mad. 210, Sahu Shyam Lal v. Shayam Lal and Musharaf Hussain v. Agha Munawar Ali A.I.R. 1940 Lah. 7. No doubt all these cases relate to consent decrees but the suits in which they were passed were not under Section 9, Specific Relief Act. That section expressly prohibits an appeal from any order or decree passed in any suit instituted under this section. In Kanai Lal v. Jatindra Nath Chandra A.I.R. 1918 Cal. 925 it was held that no appeal lies from an order passed in execution of a decree in a suit under Section 9, Specific Relief Act. That case was followed in Munshi Ram v. Amin Chand A.I.R. 1928 Lah. 539. The same view was taken in Thomas Souza v. Gulam Moidin (03) 26 Mad. 438, Waris v. Fateh Din A.I.R. 1923 Lah. 105 and Tota Ram v. Shibban Lal A.I.R. 1932 Lah. 416 where it was pointed out that an application to execute a decree for possession of land passed under Section 9, Specific Relief Act, was included in the term 'suit' as used in that section. I am in respectful agreement with the view taken by the learned Judges of the Calcutta and Lahore High Courts, and hold that the lower Court's order was not appealable under Section 47, Civil P.C.