R.Dayal, J. - (1.) This is a revision under Section 115, Code of Civil Procedure against the order of the District Judge allowing an appeal under Section 476-B, Code of Criminal Procedure and ordering the dropping of the proceedings based on an order for filing a complaint against the opposite-party for an offence under Section 193, Indian Panel Code.
(2.) The Civil Judge recorded a finding that a complaint be made against the opposite-party on the 22nd of January, 1951. An appeal was filed before the District Judge on the 19th of February, 1951.
(3.) It has been strenuously contended for the applicant that the appeal to the District judge was incompetent. Section 476-B, Code of Criminal Procedure allows an appeal against the making of a complaint and not against the recording of a finding about the expediency of lodging a complaint under Section 476, Code of Criminal Procedure. Reliance is placed on the case reported in Mohammad Illayas v. State of Uttar Pradesh, 1954 A.L.J. 241 ,. This contention was not raised in the grounds of revision and it does not appear to have been raised before the District Judge. Even if the contention be correct in law, there is nothing on the record to indicate that a complaint had not actually been made by the Civil Judge prior to the 19th of February, 1951. If a complaint had been made prior to the 19th of February, 1951, the opposite-party would have the right to appeal and the appeal would be competent in view of the provisions of Section 476-B, Code of Criminal Procedure and within the observations in Mohammad Illayas v. State of Uttar Pradesh, 1954 A.L.J. 241 . As the question was not raised and is dependent on a question of fact, I do not consider it.;