Dilwar Sultan vs Keshab Chandra Mukherji and Others

Das, J.—This is an appeal by the judgment-debtor, an applicant u/s 28 of the Calcutta Thika Tenancy Act. His application before the trial court was dismissed on the ground that he had failed to prove that he was a thika tenant. Against the decision of the learned Munsif who tried the application he preferred an appeal which was heard by Sri D. N. Das Gupta, learned Subordinate Judge, First Court, Alipur. The learned Judge dismissed the appeal on the preliminary ground that the appeal was not competent inasmuch as an order of a Court u/s 28 of the Calcutta Thika Tenancy Act was not a decree and was not open to appeal. The present appeal is therefore concerned with the question whether the appeal before the lower appellate court was maintainable or not.

Section 28 of the Calcutta Thika Tenancy Act, 1949. provides as follows :--

Where any decree, order for the recovery of possession of any holding from a thika tenant has been made before the date of commencement of this Act but the possession of such holding has not been recovered from the thika tenant by the execution of such decree or order, the Court by which the decree or order was made may. if it is of opinion that the decree or order is not in conformity with any provision of this Act other than subsection (1) of section 5 or section 27, rescind or vary the decree or order in such manner as the Court may think fit for the purpose of giving effect to such provision and a decree or order so varied by and Court shall be transferred by such Court, to the Controller for execution under this Act as if it were an order made under and in accordance with the provisions of this Act.

An order u/s 28, therefore, determines the question whether the decree or order already made should be rescinded or varied in accordance with the provisions of the Calcutta Thika Tenancy Act. If an order is made in terms of section 28, that order by the terms of section 28 is executable by the Controller on transfer to him by the Court before which the application was made. The order determining the application u/s 28 thus adjudicates upon the rights of the parties to the suit for recovery of possession of any holding of a thika tenant. That decision is conclusive so far as that Court is concerned. The adjudication u/s 28, be it one of dismissal or rescission or variation of the decree or order, conclusively determines the rights of the parties to the suit. It will, therefore, have effect as a decree within section 2(2) of the Code of Civil Procedure. It is contended however that as section 28 finds a place in a special enactment which does not provide exclusively for an appeal, the appeal is not competent. In support of this contention reliance is placed on the decision of Roxburgh, J., in the case of Panchanon Shaw Vs. Satyabandhu Mukherjee, . The learned Judge accepted the view that no appeal lay and the reason gives by the learned Judge is that the power given u/s 28 is a special and extraordinary power given by the statute and an appeal would lie only if special provisions were made by the Act for an appeal creating a power. This view of Roxburgh, J., is opposed to the well-settled principle that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute, the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. [Adaikappa Chettiar v. C. Thevar (2) (L. R. 74 IndAp 264 : 52 C.W.N. 275]

The question therefore is whether under the ordinary rules of procedure an order made u/s 28 is appealable or not. An order u/s 28 is made by the ordinary Civil Court of the country. As stated already, it determines a legal right which is in dispute between the parties to the suit. It accordingly satisfies the requirements of an appeal as laid down in the Code of Civil Procedure. The order made u/s 28 of the Calcutta Thika Tenancy Act is therefore appealable.

It may be pointed out that an order made u/s 6 of the West Bengal Premises Rent Control (Temporary Provisions) Amendment Act (Act LXII of 1950) which is in terms similar to that in section 28 of the Calcutta Thika Tenancy Act, 1949, was held to be appealable by a Bench of this Court in the case of Sm. Radharani Das Vs. Sisir Kumar and Others,

In the result this appeal is allowed. The order of the lower appellate Court is set aside and the case remitted to that Court for a decision on the other points which arise in the case.

In the circumstances of this case, we direct the parties to bear their own costs. No order is necessary on the application u/s 115 of the Code of Civil Procedure.

Guha Ray, J.

I agree.