Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MASHWAB ALI VS Respondent: NIMBAR ALI
P L D 1952 Dacca 467
P L D 1952 Dacca 467
Before Ibrahim, J
MASHWAB ALI‑Appellant
Versus
NIMBAR ALI and others‑Respondents
Appeal from Appellate Order No. 58 of 1949, decided on 3rd January 1952, with alternative application against the Order of V. Hossain, District Judge, of Zilla Sylhet, dated the 30th November 1948, in Miscellaneous Appeal No. 74 of 1948, affirming the order of M. Ahmed, Munsif, 3rd Court, Habi gang, dated the 26th June 1948.
Sylhet Tenancy Act (XI of 1936), S. 35 (6)‑Order appealable.
Subsection (7) of section 34 of the Sylhet Tenancy Act lays down that an order passed on an application under sub‑section (6) of this section will have the effect of a decree of a Civil Court. There is no provision in the Sylhet Tenancy Act or in the Civil Procedure Code providing that there shall be no appeal from such an order. Clearly, therefore. an appeal lies.
Harey Krishna Maharatna v. Kali Krishna Sarma 49 C W N 683 dissent.
Ashrafuddin Choudhury and M. H. Khondbar for Appellant.
Abdul Wadud Choudhury for Syed A. B. Mahmud Husain for Respondents.
JUDGMENT
IBRAHIM, J.‑--- This appeal relates to an application under section 34, subsection (6) of the Sylhet Tenancy Act (Act XI of 1936 as amended by Assam Act V of 1943).
The application for redemption was allowed in part by the learned Munsif. An appeal from that order was dismissed by the learned District judge on the ground that the appeal was not competent.
The learned District Judge relied on Harey Krishna Maharatna v. Kali Kumar Sarma, 49 C W N 683, where in a similar case Henderson J. held that no appeal lay from an order under subsection (6) of section 34 of the Sylhet Tenancy Act. With due respect I am unable to agree with the view taken in this case.
Section 96 of the Code of Civil Procedure allows an appeal from every decree unless otherwise expressly provided in the
Code of Civil Procedure or in any other law for the time being in force. Subsection (7) of section 34 of the Sylhet Tenancy Act lays down that an order passed on an application under subsection (6) of this section will have the effect of a decree of a Civil Court. There is no provision in the Sylhet Tenancy Act or in the Civil Procedure Code providing that there shall be no appeal from such an order. Clearly, therefore, an appeal lies.
The judgment and order of the learned District judge cannot be sustained in these circumstances, and I accordingly, set aside the same and remand the appeal to him for re‑hearing and disposal on merits according to law. The appeal is allowed. Costs of this appeal will abide the result.
In the view I have taken, no order is necessary on the alternative application under section 115 of the Code of Civil Procedure.
A. H. Appeal allowed.