MOHENDRA CHANDRA DUTTA ROY Vs. BASIRUDDIN

JUDGEMENT

(1.) The petitioner before me instituted a rent suit against the opposite parties in respect of an agricultural holding. The suit was valued at less than Rs. 50. None of the opposite parties appeared, so the said suit was decreed ex parte by the learned Munsif, Mr. S.C. Bose, who had been vested with final jurisdiction under Section 153 (b), Ben. Ten. Act. None of the questions coming within the proviso to that section was decided. Accordingly an appeal against his decree would not have been maintainable. Some of the defendants, namely opposite parties Nos. 1 to 15, applied to set aside the said ex parte decree by an application made under Order 9, Rule 13 of the Code. The said application was heard by another learned Munsif, Mr. A.B. Ganguly, who had no final jurisdiction under Section 153 (b), Ben. Ten. Act. He dismissed it holding that the summons of the suit had been served on all the defendants and that it was time-barred. An appeal was taken against this order to the Court of the learned District Judge. The said appeal was heard by the learned Subordinate Judge who allowed it, he holding that the application under Order 9, Rule 13, was not time-barred and that no summons had been served on opposite parties Nos. 1 to 15. He set aside the ex parte decree in its entirety. It is against this order that the plaintiff petitioner has obtained this rule. Two points have been taken before me in support of the rule namely: (i) that the appeal to the lower appellate Court was incompetent, (ii) and that the ex parte decree, at any rate, ought not to have been disturbed so far as the other defendants, namely opposite parties Nos. 16 to 19 were concerned. I do not consider the second ground to be substantial. Having regard to the defence which will be taken by the opposite parties Nos. 1 to 15, if the ex parte decree be set aside, of which defence there are indications in the orders of the Munsif by which he refused to set aside the ex parte decree, the ex parte decree, if it has to be set aside, must be set aside in its entirety.

(2.) The first point urged before me however raises, so far as I am aware, a question of first impression in this Court, and depends upon the interpretation to be put on Order 43, R. (1), Clause (d), Civil P. C. There cannot be any doubt that the right of appeal is a creature of statute and when no such right is expressly conferred by the statute there is no such right. The right of appeal against decrees and orders passed in rent suits for agricultural lands has been conferred by the provisions of the Civil Procedure Code; See Section 143 (2), Ben. Ten. Act, and Section 153, Ben. Ten. Act restricts that right so conferred by the Code in certain cases. To establish the right to appeal to the lower appellate Court against the order passed in this case, the opposite parties must show in the first instance that they come within the provisions of Order 43, R. (1), Clause (d), Civil P. C., and in the second instance that Section 153, para. 1, Tenancy Act, does not affect him. Order 43, Rule 1, Clause (d) of the Code runs thus: An appeal shall lie from the following orders under the provisions of Section 104, namely, (d) an order under Rule 13, Order 9 rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte.

(3.) The controversy in the case before me is as to the meaning to be attached to the words "in a case open to appeal." Section 153, Bengal Tenancy Act, by itself does not bar the appeal in the case before me as Mr. A.B. Ganguly had no final jurisdiction, and it is for this reason that I consider that the case in Badiur Rahman V/s. Mokram Ali 1932 Cal 687 does not touch the point which I have to consider. There the order refusing to set aside the ex parte decree in the rent suit valued at less than Rs. 50 was passed by a Munsif who had final jurisdiction under Section 153 (b), Tenancy Act. All that was decided there was that such an order was an order passed in a suit, and so came within the provisions of para. 1, Section 153 which took away the right of appeal. Nor do I consider the cases in Shyama Charan V/s. Debendra Nath (1900) 27 Cal 484 and Samed Sheikh V/s. Nabanepal Ghosh 1914 Cal 614 relevant to the point in controversy before me. The first case decided that an order passed in a proceeding for execution of a rent decree passed under the provisions of the Tenancy Act is an order passed in a suit, the word suit used in Section 153, Tenancy Act, being not used in a limited sense of a proceeding in the Court of first instance before the decree. It accordingly held that there was no second appeal against an order passed in appeal in execution proceedings by a Subordinate Judge in a rent suit valued at Rs. 100 or less. The second of these cases also related to the interpretation of the word "suit" as used in Section 153. It was held that an order refusing to set aside an ex parte decree passed in appeal by a Subordinate Judge in a rent suit valued at Rs. 100 or less was not appealable as it was an order by such an officer passed in a rent suit. All the above mentioned three cases hold that the right of appeal which the aggrieved party had under the provisions of the Civil P. C. had been taken away by Section 153, Bengal Tenancy Act. In the case before me the order refusing to set aside the ex parte decree was passed by a Munsif who had not been vested with final jurisdiction by the Local Government under Sec. 153 (b). Here in the case before me the question is whether the Civil Procedure Code has given the opposite parties the right to appeal.