Raghunath Prasad vs Jagannath Das and Another

A suit for profits u/s 164 of the Agra Tenancy Act was instituted in the Court of the Assistant Collector. That Court dismissed it with costs. There was an appeal to the District Judge, who under Order XLI, Rule 23, remanded the case to that Court. An appeal from the order of remand is preferred to this Court, A preliminary objection is taken to the hearing of this appeal which is to the following effect. Section 193 of the Agra Tenancy Act excludes the application of Chapter XLIII of the CPC of 1882. Section 588 of that Code is contained in that Chapter. Section 158 of the present CPC provides: "In every enactment or notification passed or issued before the commencement of this Code, in which reference is made to or to any Chapter or section of Act VIII of 1859 or any CPC or any Act amending the same or any other enactment hereby repealed such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding part, order, section or rule". It, therefore, follows that the provisions of Section 193 of the Agra Tenancy Act apply to Order XLI, Rule 1, corresponding to Section 588 of the CPC of 1882, with the result that the order of remand passed by the learned District Judge is not appealable to this Court, there being no provision in the Agra Tenancy Act for such an appeal. The same view was taken in Zahur Ali v. Sher Ali 28 A. 283 : A.W.N. (1906) 5 : 3 A.L.J. 20. For the above reasons, we dismiss this appeal with costs.