SREEMATH RAJA YARLAGADDA ANKINEEDU PRASAD BAHADUR ZAMINDAR GARU Vs. RAVI BASAVAYYA BEING MINOR BY COURT GUARDIAN, HEAD CLERK, DISTRICT COURT

JUDGEMENT

(1.) This is a second appeal filed by the plaintiff (decree-holder) against the order passed on his E.P. No. 218 of 1922 in S. S. No. 26 of 1908 on the file of the Deputy Collector of Bandar. There is no appearance for the respondent (judgment-debtor) in this appeal. The facts are briefly as follows: S.S. No. 26 of 1908 was filed for the recovery of arrears of rent under Section 77 of the Madras Estates Land Act 1 of 1908, and a decree was passed in plaintiff's favour on 16 September, 1910. The present E.P. No. 218 of 1922 was filed on 12 September, 1922 for the execution of that decree by attachment and sale of the defendant's immoveable property. This petition was dismissed by the Revenue Court on 17 May, 1923 as no fresh petition for the appointment of a guardian for the minor defendant was filed. Against that order of dismissal an appeal was preferred to the District Court. The learned District Judge rightly held that the order of dismissal passed by the executing Court was wrong and could not be upheld. I am in entire agreement with that view for there was no justification for the dismissal of the execution petition, for the non-filing of a fresh petition for the appointment of a guardian when the petition filed for that purpose was still pending and no orders had been passed on it. But the District Judge, however, dismissed the appeal as he was of opinion that an appeal does not lie.

(2.) The correctness of this view is challenged on the appellant's side. It seems to me that the learned District Judge has misconstrued Secs.189 and 192 of the Estates Land Act. Section 189 provides that a Revenue Court (and not a Civil Court) has jurisdiction to try and hear all suits and applications of the nature specified in Parts A and B of the Schedule, and the decrees and orders passed in such suits and applications shall be subject to appeals as provided in the sixth column. Section 192 enacts that subject to the other provisions of this Act and subject to the modifications and additions mentioned in that section itself, the provisions of the Civil Procedure, Code shall apply to all suits, appeals and other proceedings under this Act. The order in question is one passed by a Revenue Court on a petition put in for executing its decree in a suit filed under Section 77 of the Act. It is not an application of the nature specified in Part B of the Schedule, and therefore an order passed on it is not subject to an appeal as provided in the sixth column of Part B of the Schedule. What we have to see is, whether the application now in question (E.P. No. 218 of 1922) is governed by the provisions of the Civil Procedure Code. This application is not covered by Section 189 of the Act and consequently is not governed by the provisions of that section. There is no provision in the Act either expressly or impliedly prohibiting an appeal against an order on an execution application passed by a Revenue Court. Section 192 of the Act makes the provisions of the Civil Procedure Code applicable to all suits, appeals and other proceedings under this Act subject to the restrictions set forth in that section. Section 47 of the new Code (which corresponds to Section 244 of the old Code of 1882) is not one of the sections mentioned in Sub-clause (a) of Section 192 of the Act. There is no doubt that the order dismissing E.P. No. 218 of 1922 (which was filed under Order 21, Rule 11(2) of the Civil Procedure Code) is an order falling under Section 47 of the Code. Such an order could be a decree as defined in Clause (2) of Section 2, of the Code, and therefore an appeal lies under Section 96 as also a second appeal under Section 100 of the Code. It is the District Court which is authorised to hear an appeal against the decree of a Revenue Court in a suit filed under Section 77 of the Act (vide the sixth column appertaining to Serial No. 8 in Part A of the Schedule). Consequently by virtue of Section 96 of the Code the appeal lies to the District Court against an order passed in execution of that decree. The learned District Judge says that it would be inconsistent with the provisions of Section 189 of the Estates Land Act to allow an appeal in the present case. As I have pointed out above, that section does not cover the present case at all, and therefore there would be no violation of the provisions of that section if an appeal is allowed in the present case. By virtue of Section 192 of the Estates Land Act the provisions of Secs.2, 47, 96 and 100 of the Civil Procedure Code apply to a petition filed for the execution of a decree given by a Revenue Court in a suit filed under Section 77 of the Estates Land Act. If the view taken by the learned District Judge should be adopted as correct, the result would be that no orders passed in execution of such a decree by the Revenue Court would be appealable to any Court, though the decree itself is subject to appeal. I am unable to uphold that view.

(3.) The appeal is allowed and E.P. No. 218 of 1922 is remanded to the executing Court for restoration to file and dispose according to law. The costs of the first and second appeals will abide the final result of the petition.