Marotu Guranna vs Kshetri Mohanty

Meredith, J.—This is an appeal from an order of the Agency Subordinate Judge, Jeypore, refusing an application to rehear an appeal which had been decreed ex parte. The appellant brought a suit for possession of certain land in the Court of the Agency Munsif, and obtained a decree. The defendant appealed to the Subordinate Judge. The first date fixed in this appeal was 1st January 1940. On 6th January 1940 the appellant had taken delivery of possession of the property. On 9th January the peon reported service of the appeal notice by affixing. On 19th January the appeal came up for hearing. The appellant was absent, and the appeal was heard ex parte and decreed, dismissing the suit. On 16th February, the appellant made an application, which he supported by an affidavit, stating that service had not been made upon him even by affixing and he had no knowledge of the appeal. There was no counter-affidavit and no witnesses were examined on either side. But on 27th March the Subordinate Judge dismissed the application without costs, remarking that the return of the process-server was to the effect that on account of temporary absence of the petitioner from home the appeal notices were served by affixing. No other reason for non-appearance in Court was stated in the affidavit.

Accordingly, he did not find sufficient reasons for setting aside the judgment and re-hearing the appeal. Ordinarily speaking, an appeal from this order would lie under the provisions of Order 43, Rule 1(t), Civil P.C., but Mr. P.C. Chatterji for the respondent has made a preliminary objection that the CPC has no application in the agency area. Consequently the case is governed by the Agency Rules, and under these rules there is no provision for an appeal in the case of an order such as this. Therefore he says, no appeal lies. Mr. Chatterji points out that u/s 4(1), Civil P.C., "In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred; or any special form of procedure prescribed, by or under any other law for the time being in force." Moreover Section 1(3) says: "This section and Sections 155 to 138 extend to the whole of British India, the rest of the Code extends to the whole of British India, except the Scheduled Districts."

The Agency Rules were made by Government under the Scheduled Districts Article 14 of 1874. The list of Scheduled Districts appears in Schedule 1 to that Act, and includes in Vizagapatam the Jeypore zatnindari. Act 14 of 1874 was repealed in 1937 by the Government of India (Adaptation of Indian Laws) Order, 1937. But the repeal was in these terms: "This Act shall cease to have effect, without prejudice, to the continuing authority of any notification, appointment, regulation, direction or determination made thereunder and in force immediately before the commencement of Part III, Government of India Article, 1935." It is, therefore, clear that despite the repeal of the Scheduled Districts Act, 1874, the Agency Rules as a regulation under the Act continued in force and are still valid. Mr. Chatterji further contends that though the Scheduled Districts Act was repealed in 1937, its place was taken by Section 92, Government of India Article 1935. Section 91(1), Government of India Act, runs: "In this Act the expressions ''excluded area'' and ''partially excluded area'' mean respectively such areas as His Majesty may by Order in Council declare to be excluded areas or partially excluded areas. The Secretary of State shall lay the draft of the Order which it is proposed to recommend His Majesty to make under this Sub-section before Parliament within six months from the passing of this Act." An Order in Council was accordingly passed in 1936. It is the Government of India (Excluded and Partially Excluded Areas) Order, 1936, and it includes, amongst the partially excluded areas, "The areas transferred to Orissa under the provisions of the Government of India (Constitution of Orissa) Order, 1936, from the Vizagapatam Agency in the Presidency of Madras."

Section 92(1), Government of India Act, lays down that "The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit." It is Mr. Chatterji''s contention that there has been no notification under this section by the Governor extending the CPC to the Agency areas, and he contends further that by reason of Section 316, Government of India Act, for the words "Federal Legislature" in Section 92 we must read, during the interim period until the establishment of the Federation, the words "Indian Legislature." Mr. Chatterji''s argument is accordingly that even if the Agency area can no longer be called a Scheduled District, it is not a partially excluded area and accordingly u/s 92, Civil P.C., does not operate therein.

It is, in my opinion, unnecessary to decide this question in the present case, because I think even upon the assumption that the CPC is not applicable an appeal will still lie under the Agency Rules themselves. Rule 49 of those rules provides that "From every original decree passed by the Agent to the Governor or the Government Agent as the case may be an appeal shall lie to the High Court." The question, therefore, is whether the order in the present case can under these rules be regarded as a decree. If we are to adopt the definition of ''decree'' in the Code of Civil Procedure, there can be no doubt that it is not a decree. But upon the assumption that the CPC is not applicable, the definitions contained therein are also inapplicable, and consequently for the meaning of ''decree'' we must look to the rules themselves, and, where they fail us, to the ordinary dictionary meaning of the word. There is no complete definition of ''decree'' in the Agency Rules, but in the interpretation clause we find: (1) " ''Decree'' shall include orders passed under Rules 39(1) and 43(3) but not orders under Rules 33 and 35."

This is not, in my opinion, an attempt at definition, but merely a specification of certain instances. What it does show, however, is that ''decree'' is not used in the sense it is used in the Code of Civil Procedure, because an order under Rule 43(3) is made a decree. Rule 43(3) merely provides that in certain cases of non-feasance or misfeasance by a receiver the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him, or any loss occasioned by him, and shall pay the balance, if any, to the receiver. This is clearly not a decree at all in the sense we are accustomed to in the Code of Civil Procedure.

In the absence of any complete definition, we are, as I have said forced to rely upon the ordinary dictionary meaning of the word. In Webster''s dictionary ''decree'' is defined as follows : "An order or decision from one having authority deciding what it is, or is to be, done; a determination by one having power deciding what is to be done or to take place; authoritative decision; imperative rules; edict; law; ordinance." It is clear, and Mr. Chatterji does not dispute, that the order of the Subordinate Judge in this case dismissing the application before him will fall within this definition, as a determination from one having authority deciding what is to be done or to take place, and as an authoritative decision. In my opinion, therefore, we must hold that the order now before us is a decree for the purpose of the Agency Rules and consequently is appealable under Rule 49. I now turn to the merits. The position is that there was before the Subordinate Judge an affidavit by the appellant stating that no service at all had been made upon him.

That affidavit was not challenged either by counter-affidavit or by evidence. The peon was not examined, and accordingly the Subordinate Judge had, in my opinion, no materials upon which he could reject the statement in the affidavit and hold that there had been proper service. Apart from that, however, even if it be held that the notice was affixed, there was nothing to show that the peon had made the enquiries contemplated by Order 5, Rule 17, before he affixed the notice, and consequently it could not be held that the service by affixing during temporary absence was proper service. There is nothing to suggest that the peon made any enquiries as to whether there was any local agent or any relatives upon whom he could serve the notice. Rule 50 of the Agency Rules, prescribes that if the Court does not dismiss the appeal summarily it shall cause a notice to be issued to the respondent and proceed to dispose of such appeal as far as possible in the manner prescribed by the Code of Civil Procedure.

The learned Subordinate Judge, therefore, before accepting the service by affixing as satisfactory should have satisfied himself that the conditions prescribed in Order 5, Rule 17 were satisfied, and this he did not do. In this view the order of the Subordinate Judge refusing to re-hear the appeal was not a proper one, and I would accordingly allow this appeal, set aside the ex parte decree upon appeal, and direct that the appeal be re-heard after proper notice to the parties. In the circumstances I would make no order for costs.

Chatterji J.

I agree.