Decided on October 18,1960

PARTALAL Appellant
GHEESA Respondents


- (1.)This is an appeal against the judgment of the Additional Commissioner, Jaipur dated 16.3.1960. We have heard the learned counsel for the parties and examined the record also.
(2.)Circumstances leading to this appeal are that appellant Partalal brought a suit for division of holding and recovery of possession of the disputed land against the respondents which was decreed by the Assistant Collector, Neem Ka Thana on 30.2.1959. On appeal, however, the learned Additional Commissioner set aside that decree, remanded the case back for retrial not on merits but only on the ground that the land -holder had not been made a necessary pary thereto as required by sec. 54 (4) of the Rajasthan Tenancy Act, 1955.
(3.)A preliminary objection has been raised, on behalf of the respondents by Shri P.D. Kudal to the maintainability of the appeal. The contention is that the provisions of the Civil Procedure Code (hereinafter referred to as Code) having been made applicable to the suits and proceedings under the Rajasthan Tenancy Act (hereinafter referred as the Act) appeals can lie only against the orders enumerated in O. 43 R. 1 of the Code and not otherwise. It has been argued that vide item (U) thereof only an order of remand under 41 Rule 23 of the Code has been prescribed to be appealable and no other order of remanding an appeal; that vide Rule 23 remand order can be made only when the trial court has disposed of the suit on a preliminary point and the decision thereof is revised by the appellate court and that when the appeal has been remanded not on the basis of revising the decision of trial court on a preliminary point but for a retrial after adding the necessary party, as in the present case, the order of the remand shall be treated to have been passed not under Rule 23 but under the inherent powers of the Court. A.I.R. 1925 Rangoon 320, AIR 1932 Lahore 219, AIR 1951 Rajasthan 58 and AIR. 1956 Rajasthan 43 cited by Shri Kudal all go to support his arguments so far as the provisions of the Code are concerned. 1955 R.L.W. 150 cited by Shri Tiwari on behalf of the appellants in this behalf does not at all go to repell them. No right of the parties has been decided in this cases by the learned first appellate court as in that case when it was decided finally that the plaintiff had a right of redemption denied to him by the trial court. The first appellate Court in the present case has neither entered upon examining the merits of the claims of the parties nor revised any decision of the trial court on any matter of controversy between them. The facts of AIR 1925 Rangoon 320 being almost on all fours w;th those of the present case, this appeal will not be maintainable if only the provisions of the Code were to govern it. But fortunately or unfortunately sec. 208 of the Act makes the provisions of the Code applicable to the suits and proceedings under the Act, so far as relevant for the purposes of deciding this appeal, only when they are "inconsistent" with anything therein. Now, sec. 225 of the Act allows appeals from every order except when it is an order "passed in appeal under this Section", as when sec. 104 and order 43 Rule 1 of the Code provide appeals only from orders mentioned therein and "from no other". Herein lies the marked difference between the provisions of the two enactments. When this difference is there the provisions of the Act would prevail upon those of the Code. Sec.225(1) of the Act providing for appeal against all orders excepting those barred under sub -sec. (2) thereof, provisions of sec. 104 and Order 43 Rule 1 of the Code would be deemed to be inconsistent with the provisions of the Act. The exception to the general rule of appeal against orders passed in the suits and proceedings under the Act would therefore be not the ones not mentioned in the above -referred provisions of the Code, but those falling under the category of the orders "passed in appeal under this sec. 225(1)" alone. Certainly the judgment under appeal before us is not an order falling under this category. It is an order passed in appeal against the decree of the trial court under sec. 223 of the Act and not an order passed in appeal against any order of the trial court under sec. 225. An order can be deemed to have been passed in appeal under sec.225(1) only if it is passed when an appeal is taken to the authority prescribed by sub -sec. (1) thereof to hear the appeals against an order (as contrasted with a decree) passed by an authority mentioned therein. This being not the case in this appeal, but on the other hand the impugned judgment being an order passed for deciding the appeal against the decree of the court on its own merits, it would be maintainable under sec. 225(1)(i) of the Act, and the preliminary objection raised on behalf of the respondents is hereby rejected.

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