Gonthireddi Lakshmidevi and Others vs Jammi Rajarao and Others

Chandra Reddy, J.—This is an appeal against the order of the Additional Subordinate Judge, Kakinada, reversing the order of the District

Munsif of Feddapuram, dismissing the first respondent''s petition filed u/s 19-A, Madras Agriculturists'' Relief Act 4 of 1938, to declare that there

was no debt outstanding under the bond dated 37-3-1934 or to declare the amount due thereunder. The first respondent''s father executed a

document styled Khandagutha usufructuary mortgage both in his Individual capacity and as the guardian of the then minor, first respondent. The

amount mentioned in the document was Rs. 700. Under the terms of the document the creditors were to be in possession of the property for a

period of 25 years, and, at the end of that period, the property was to be given back to the executants of the document, endorsing payment in full

of the debt and returning the document also. The basis of the petition was that the transaction covered by the document in question was a

usufructuary mortgage.

The petition was resisted by the appellants on the pleas ''inter alia'' that the petition was not maintainable as the document in question was only a

lease and that in any event the first respondent was not entitled to the relief as he was not an agriculturist. Construing the document as a lease and

not a usufructuary mortgage, the trial court held that the petitioner before it was not entitled to claim the benefit of the provisions of the Act and

therefore the petition was not maintainable.

On appeal the Subordinate Judge came to the contrary conclusion with regard to the construction of the document and held that the first

respondent was entitled to relief if he was found to be an agriculturist and remanded the matter to the trial court for an enquiry as to whether he

was an agriculturist. Against this order the present appeal has been filed. (4) Mr. Bapiraju, learned counsel for the appellants pressed upon me the

view that since the trial court dismissed the application on the ground that the provisions of the Madras Agriculturists'' Relief Act were not

applicable to the present case, the appeal to the lower appellate court was incompetent and therefore, should not have been entertained by the

Subordinate Judge. What is urged by him is that the right of appeal conferred on a person aggrieved by any order passed by the trial court u/s 19-

A is u/s 25-A, Madras Agriculturists'' Relief Act, 1938, and the latter section does not cover a case like the present one.

The point for consideration is whether an appeal lies against an order holding that the petition is not competent on the ground that the Act does

not apply to it. In order to answer this we must turn to Clauses (c) and (cc) of Section 25-A which state what orders are appealable. They run as

follows:

(c) An order under Clause (a) of Sub-section (4) of Section 19-A declaring the amount due to the creditor or declaring the debt to have been

discharged;

(cc) an order under Clause (b) of Sub-section 4 of Section 19-A dismissing the application on the ground that the debtor was not an agriculturist;

It is clear from these two clauses that an appeal lies against an order coming within the ambit of Clauses (a) and (b) of Sub-section (4) of Section

19-A. Section 19-A provides:

Where any debt incurred before the 22nd March 1938, other than a decree debt, is due by any person who claims that he was an agriculturist

both on that date and on the 1st October 1937, the debtor or the creditor may apply to the court having jurisdiction for a declaration of the amount

of the debt due by the debtor on the date of the application.

Sub-section (4) (a) says:

When any such application is made, the Court shall first decide whether the debtor was such an agriculturist or not, and, if it finds that he was such

an agriculturist, pass an order declaring the amount due by him or declaring that the debt has been discharged, as the case may be.

Sub-section (4) (a) says:

The court shall dismiss the application if it finds that the debtor was not such an agriculturist"".

It may be mentioned here that originally the right of appeal was conferred only on a party aggrieved by an order under Sub-section (4) (a) of

Section 19-A, and it is only by way of amendment that Clause (b) was added. Prior to the amendment the question arose whether an order which

declared that the applicant was not an agriculturist was appealable or not in -- ''Mahaboob, Ali v. Khudratulla AIR 1944 Mad 133 (A), and this

Court held that such an order was not appealable as there was no provision for an appeal in such a case in Section 25-A (1) (c). It is in order to

meet the situation created by this ruling the legislature introduced by the Amending Act 23 of 1948 Clause (cc) into Section 25-A of the Act.

Reading the two provisions of Section 19-A, Sub-section 4 (a) and, Section 25-A (c) and (cc) together it is clear that there is no right of appeal to

a party whose petition is rejected on the ground that the provisions of the Act are inapplicable to his case as neither of the two clauses contemplate

such a case.

A decision of a Bench in AIR 1944 Mad 133 (B)'', which supports the view I have taken was followed by another Bench decision of this Court

in -- Neelam Suryanarayanamurti Naidu and Others Vs. Boggavarapu Satyanarayanamurti and Others, .

Mr. Balaparameswari Rao, learned counsel for the respondents, maintained, (1) that the court in dealing with a petition under this Act can only

pass any of the two orders mentioned in Sub-section (4) and therefore appeals are provided only in respect of these two kinds of orders. If the

court passes any order other than the two mentioned therein it is one without jurisdiction. If it is assumed that the court has jurisdiction to pass an

order that an application is not maintainable for the reason it does not come within the purview of that Act, it must be equally assumed that the

appellate court has a jurisdiction to entertain an appeal against that order. I do not think I can accept this argument. Merely because the legislature

has not provided for the eventuality of a petition being dismissed on the ground that it does not come within the ambit of the provisions of the Act it

does not follow that a court has no jurisdiction to reject an application on the ground that the petitioner cannot seek any relief under the provisions

of the Act. Such a contingency is not provided for obviously for the reason that the petitions which are outside the purview are not filed under that

Act. There is therefore no substance in the argument that a court has no jurisdiction to dismiss an application holding that it does not fall under the

provisions of the Act.

The assumption that if a court has power to pass an order it carries with it the implication of a right of appeal against that order is equally

unwarranted. If no appeal is provided for specifically against an order in the enactment such an order cannot be appealed against. An appeal is a

creature of a statute and it cannot be created by implication. It is urged that this construction will land the person aggrieved in hardship.

Considerations of inconvenience and hardship have no place in the construction of statutes. Secondly really there is no hardship at all for the reason

that the party concerned in a case like this could file a suit for redemption of the mortgage if it is really a mortgage, or take the matter in revision to

this Court. On this discussion it follows that an appeal against the order of the trial court was incompetent and ought not to have been entertained.

The alternative position taken by Mr. Balaparameswari Rao is that even if no provision is made for an appeal in this regard in the Act, still he

can file one under the provisions of the Civil P. C., and that the rulings of this Court cited above are no longer good law having regard to the

judgment of the Privy Council in -- AIR 1948 12 (Privy Council) . I do not think that the last mentioned case has in any way shaken the authority

of the two decisions cited above, nor does it advance the case of the respondent. In that case a Bench of this court, following a ruling of the Full

Bench, inter alia'' dismissed an appeal against the order passed by the Subordinate Judge throwing out an application u/s 19, Madras

Agriculturists'' Relief Act for amendment of the decree on the ground that no appeal lay against an order u/s 19 of the Act, but acceded to the

request to convert the appeal into a civil revision petition, and, set aside the order of the Subordinate Judge in the civil revision petition.

Dealing with that question the Privy Council expressed the opinion that the view of this Court that no appeal lay was wrong since a right of appeal

was conferred by Section 96, Civil P. C., the order having been made in the suit and amounting to a decree within the meaning of Section 2(2),

Civil P. C. The contention of Mr. Balaparameswari Rao would have succeeded on the basis of this case if he were able to show me any provision

of the Civil P. C., which is attracted by the present case.

Mr. Balaparameswari Rao argued that the order passed in this case is a decree within the meaning of Section 2, Sub-section (2), Civil P.C.

But, this is overlooking that the determination of the rights of parties with regard to the matters in controversy must be in the suit. The proceedings

in this case were on a petition and therefore the provisions of Sub-section (2) of Section 2, Civil P. C., do not apply to this case. It is only petitions

which are deemed to be suits that come within the ambit of Sub-section (2). Therefore the argument based on Sub-section (2) of Section 2, Civil

P. C., is unavailable to the respondent. The result is that the appeal to the learned Subordinate Judge was incompetent and the latter acted without

jurisdiction in entertaining it. The civil miscellaneous appeal is allowed.