Bapna, J. - (1.) THIS is a second appeal in execution proceedings.
(2.) THE facts of the case are well-stated in the judgment of the Civil Judge, Gangapur. Deochand obtained 3 decree against Gajadhar and Jamnalal from the court of Munsif, Karauli, on 20th February, 1951, for redemption of certain agricultural land. In execution of that decree the judgment-debtors took an objection that the suit was one which was triable by a revenue court according to the provisions of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, which came into force on 23rd January, 1951, and the Munsif should have transferred the suit to the revenue court under sec. 6 of the Act, and the decree passed by the Munsif's Court after the enforcement of the said Act was a nullity. THE executing court dismissed the objection, and the same judgment was upheld on appeal. The learned Civil Judge relied on the provisions of sec. 41 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. The decision of the lower court is correct. Even assuming that the suit was one which was triable by a revenue court under the provisions of the Act, it came to be decided by a civil court and an appeal against such decision could only lie to a civil court, and sec. 41 provides that - "when in a suit instituted in a civil or revenue court an appeal lies to a civil court an objection that the suit was instituted in the wrong court shall not be entertained by the appellate courts, unless such objection was taken in the court of first instance; and the appellate court shall dispose of the appeal as if the suit had been instituted in the right court. " Sec. 42 provides for cases in which an objection was raised in the trial court. In those cases in which the appeal lies to civil court and the objection as to jurisdiction is raised in the first court, it is proved that if the appeal court has before it all the material necessary for the determination of the suit, it shall dispose of the appeal as if the suit had been instituted in the right court. In cases where there are no such materials and the case is to be remanded and fresh issues have to be framed and they are to be referred for trial, or additional evidence is to be taken, then the appellate court is empowered to direct its order either to the court in which the suit was instituted, or to such court as it may declare to be competent to try the same. Sub-sec. (3) of sec. 42 further provides that no objection shall be taken or raised in appeal or otherwise to any such order on the ground that it had been directed to a court not competent to try the suit. Looking to the aforesaid provision, even if an appeal would have been filed against the decree of the Munsif,the appellate court was bound to reject the objection as it was not raised in the trial court. The executing court had no better or higher powers. This second appeal has no force and is dismissed. .;