Srivastava, J. - (1.) THIS is a petition under Article 226 of the Constitution praying for a writ of certiorari quashing the order of the Board of Revenue dated the 19th of August 1959.
(2.) THE circumstances in which the petition has been filed may be shortly stated. The Petitioner was the tenant of the land in dispute. A suit under Section 180 of the UP Tenancy Act, was filed against him by the zamindars and he was ejected from the land. On the coming into force of the UP Tenancy Amendment Act, (X of 1947), the Petitioner applied under Section 27 of the Amendment Act for his reinstatement to the land. By that time, however, the zamindars who had ejected him let out the land to the opposite parties Nos. 4 to 11. The Petitioner impleaded those opposite parties also in his application under Section 27 of the Amendment Act. The application ended in a compromise according to which the opposite parties Nos. 4 to 11 were declared sub tenants for three years and the Petitioner was to get possession over the land after the expiry of that period. The compromise further provided that the Petitioner would pay rent to the zamindars at a specified rate, and the opposite parties Nos. 4 to 11 would pay rent to him at another rate that was fixed by the compromise. The application was decided on the basis of the compromise on the 20th of August, 1947. After the expiry of the period of three years the Petitioner applied to be put in possession over the land, but the application was resisted by the opposite parties 4 to 11 on the ground that they had acquired Bhumidhari rights in the land They said that they actually had acquired a Bhumidhari Sanad in their favour. The application for possession filed by the Petitioner was rejected on the ground that till the Bhumidhari Sanad obtained by the opposite parties Nos. 4 to 11 was cancelled, he could not be put in possession. The Petitioner then applied to the competent court for the cancellation of the Bhumidhari Sanad in favour of the opposite parties 4 to 11. That Sanad was actually cancelled on the Ist of March, 1955, and an appeal against the order of cancellation was rejected on the 3rd of Jan., 1957. After the cancellation of the Sanand by the trial court, the Petitioner again applied for delivery of possession, but the application was dismissed for default on the 10th of May 1955. Thereafter the Petitioner filed a suit for the ejectment of the opposite parties Nos. 4 to 11 under Section 2(sic)2 of the UP ZA and LR Act. That suit was, however, dismissed for default of prosecution on 10 -11 -1955. The Petitioner then filed another application bearing No. 1 of 1957 in the court of the Tahsildar and Assistant Collector, Ist Class, praying for delivery of possession over the land in dispute. The application was opposed by the opposite parties Nos. 4 to 11, and it was rejected by the Tahsildar on 31 -8 -1957. The Petitioner appealed to the Dy. Commr. of Partapgarh, but his appeal also failed on 26 -3 -1958. He then preferred a revision against the order of the Deputy Commissioner before the Commissioner, and the latter recommended to the Board of Revenue that it be rejected. The Board by the order which is now sought to be impugned dismissed the application in revision on the short ground that the application for delivery of possession which the Petitioner had filed amounted to an application for the execution of a decree and was barred by one year's rule of limitation laid down in Item No. 7 of Group F of IVth Schedule of the UP Tenancy Act. It is urged in support of the petition that the view taken by the Board of Revenue on the question of limitation was an erroneous one and that the application filed by the Petitioner could not have been rejected as time barred. The argument is that the order by the enforcement of which the Petitioner was claiming possession over the land did not amount to a decree and the application he had made was not an application for the execution of any decree. The one year's rule of limitation applied by the Board of Revenue was therefore not applicable.
(3.) THE contention of the Petitioner appears to be well -founded. The provisions of the Code of Civil Procedure being admittedly applicable, the order passed on the application under Section 27 of Act X of 1947 could amount to a decree only if it fulfilled the requirements of the definition of the word "decree" to be found in Section 2 of the Code. According to that definition, the order could be a decree only if it had been passed in a suit. The proceedings in which the order in question had been passed could not, however, be considered to be a suit. The proceedings had been initiated by an application contemplated by Section 27 of Act No. X of 1947 and not by a plaint. In a suit the proceedings are initiated usually by the presentation of a plaint. Moreover, Clause (6) of Section 27 of Act No. X of 1947 clearly provides that an appeal against an order under the section shall lie to the Collector whose appellate order shall be final. From this it follows that the order passed on the application under Section 27 was to be treated as an order and not a decree. No second appeal was permitted in the case. That to shows that the order passed on the application was an order and not a decree.;