RAM KHELAWAN SINGH Vs. MAHARAJAH OF BENARES

JUDGEMENT

(1.) A preliminary objection is taken that no appeal lies to this High Court and it is based on the contention that the case is governed by the old law and not by the new Tenancy Act (Local Act 3 of 1926).

(2.) The appeal purports to be from an order rejecting certain objections to the confirmation of a sale. Under the old law an appeal from such an order undoubtedly lay as far as we are aware to the Commissioner and not to the High Court. An appeal was preferred to the Commissioner. But it was opposed by the decree-holder on the ground that the case was governed by the new law and that an appeal should really have been filed under Section 248, Sub-clause 3 of the new Tenancy Act. The Commissioner entertained this objection raised on behalf of the decree-holder and returned the appeal for presentation to the proper Court. The judgment-debtor presented his appeal to the District Judge instead of to the High Court. The learned Judge has held that the valuation of the suit having been more than Rs. 5,000 the appeal ought to have been preferred to the High Court. He has accordingly returned the memorandum of appeal for presentation to this High Court. The appeal has now boon preferred in this High Court.

(3.) The learned advocate for the decree-holder now changes his position and urges that the case is not governed by the new Act at all but by the old law and that no appeal lies to the High Court. We think that when on the objection having been taken by the decree-holder himself the appeal was returned for presentation to the proper Court, he has accepted the jurisdiction of this Court as the proper forum for purposes of appeal. He cannot now be allowed to raise the question that the appeal should not have been returned by the Commissioner at all. Inour opinion he is estopped from raising any question of jurisdiction inasmuch as it was on his own insistence that the appeal was returned by the Commissioner.We, therefore think that we cannot allow the decree-holder's counsel to raise the question that the case is not governed by the now Act.