Bhatele Ramesh Chand vs Dr. Shyam Lal And Ors.

JUDGMENT Braund, J.

1. The facts involved in this appeal are simple. The difficulty arises from the draftsmanship of the United Provinces Encumbered Estates Act of 1934. Respondent 2, B. Sarda Pershad and his two sons, respondents 3 and 4 as landlords applied for the benefit of the United Provinces Encumbered Estates Act, 1934. After taking the usual steps, the Special Judge of Etawah, who was a Special Judge of the first grade, on 1st September 1938 passed a decree under Section 14(7) of the Act finding the amounts due to the claimants against the debtors' estate and giving them simple money decrees for the amounts due to them.

2. In these decrees, the learned Special Judge was concerned in particular with two claimants, one of whom is the present appellant, Bhatele Ramesh Chand, and the other, respondent 1, Dr. Shyam Lal. The matter need not be unduly complicated by tracing the history of the claims of these two gentlemen beyond observing that, in the events which had happened, the former, the appellant Bhatele Ramesh Chand, had in 1933 obtained a decree against the landlords, or their predecessors-in-title, on a mortgage of 7th June 1920, which was itself a renewal of an earlier security of 15th November 1907. Respondent 1, Dr. Shyam Lal, also in the year 1934 obtained a decree against the landlords or their predecessors-in-title on a mortgage in part covering the same property, dated 16th February 1922, which was also a renewal of an earlier security of 3rd October 1918. So far as time goes, the decrees and the securities of the appellant-both original and renewed-were, therefore, respectively earlier in date than the decrees and the securities of the respondent, Dr. Shyam Lal. These two claimants accordingly came before the Special Judge in the Encumbered Estates Act proceedings as mortgagees; and, as mortgagees there were no doubt questions of priority between them.

3. The learned Special Judge in his judgment of 1st September 1938 found a sum of Rs. 15,000 odd due to the appellant in respect. of his mortgage decree and a sum of Rs. 7000 odd due to respondent 1 in respect of his decree. In his judgment, however, the Special I Judge went further than merely to find the amounts due under Section 14(7) of the Act. He also "ranked" the debts for priority under Section 16 of the Act. It is, perhaps, questionable, though it need not be unduly emphasised at this stage, whether the Special Judge was wise to confuse his functions under Section 14(7) with those under Section 16 of the Act and to incorporate the ranking of the debts under the latter section in his findings as to the amounts due under the former section. But, however that may be, the learned Special Judge in this case, so far as his judgment was concerned, did place the debts in the various classes prescribed by Section 16. Moreover, he numbered them consecutively within those classes. Thus in class (4) in his judgment of 1st September 1938 he included the debts due to respondent 1 and to the appellant' respectively in that order numbering respondent 1's debt as No. 1 in the class and the appellant's debt as No. 2 in the clas3. It is this that has led to the difficulty. At the same time, however, the formal decrees were drawn up as provided by Section 14(7) of the Act merely declaring the sums due to the appellant and respondent 1 respectively.

4. In 1939 an application was made to the Special Judge by the appellant for an alteration in the figures of his decree. This is of no particular significance at the moment and was allowed. But on 23rd July 1942 the appellant launched a more substantial application which is now in issue. This was an application purporting to be made under Sections 151, 152 and 153, Civil P.C., and for a review of the decree of 1st September 1938 (as amended) under Order 47, Rule 1 of Schedule 1, Civil P.C. The grounds of the application, shortly stated, were first that the figures of the decree of 1st September 1938 should be corrected so as to conform to the amendment of 1939, and secondly-and this is the material matter now-that the order in which the two debts had been placed by the judgment of the learned Special Judge in Class (4) should be reversed, so that the appellant's debt might appear as No. 1 within the class and the respondent's debt as No. 2. This, of course, proceeded on the view (which in my opinion was wholly misconceived) that some significance attached to the order in which the debts appeared within the various classes. If the learned Special Judge intended to rank the debts in order of priority within class 4, he had, in my view, no right to do so at that stage; if he did not, then there was no significance to be attached to the order in the schedule. There was, of course, no difficulty as to the amendment of figures. But the second head of relief raised the considerable difficulties with which we now have to deal.

5. What the learned Special Judge actually did on this application was that he allowed the decree to be amended as regards the figures, but refused to make any other alteration in it on the ground-and solely on the ground - that the appellant ought to have applied by way of appeal, instead of by way of review. But he used language which made it clear that he held that the judgment of 1st September 1938, in placing respondent l's debt first and the appellant's debt second, had judicially found that respondent 1's "debt" was entitled to priority over the appellant's "debt" within the class. It is fair to say that the learned Special Judge who passed this order was a different Special Judge from the one who had delivered the judgment and passed the decree of 1st September 1938, having succeeded him in office. He actually said: "In the decree passed on 1st September 1938 the ranking of the debts was done." This was not strictly true, as it was only the judgment that had contained any ranking:

If the applicant was aggrieved against that ranking he should have gone up in appeal. I am not prepared to modify the order of my learned predecessor dated 1st September 1938 and find that this application is not maintainable to the extent so far as relief (b) of this application goes....

6. It is this order, rejecting the review, that has given rise to the present appeal. It was obviously a serious matter for the appellant that the judgment of 1st September 1938, should be taken as a concluded judicial finding against him that Dr. Shyam Lal's mortgage 'as a mortgage' was paramount to his mortgage, although it is not altogether easy to perceive how, in view of Section 18, United Provinces Encumbered Estates Act, any question of priority as between the mortgagees would arise in respect of the mere "debts," irrespective of securities, contemplated by the Act. That, however, is a matter which may have to be considered later on. The first point now taken by the respondent is a different one namely that no appeal or revision lies from an order made by a Special Judge rejecting an application for review made to him under Order 47, Rule 1 of Schedule 1 to the Civil P.C. This is a purely technical and preliminary objection, and I should desire to avoid complicating the question at this stage more than is necessary by considering whether a review application lay at all, and, if it did, what its result ought to have been. I desire to confine myself at the moment to the simple preliminary question whether, assuming an application by way of review to have been the proper remedy of the appellant, the order of the Special Judge, dated 29th August 1942 rejecting it is now open to appeal or to revision in this Court. It is necessary first to consider certain difficult sections of the United Provinces Encumbered Estates Act (hereinafter called 'the Act') and their construction. Chapter 6, which is headed "Appeal and Revision," starts with Section 45 which says:

(1) An appeal against any decree or order finally disposing of the case of a Special Judge of the first grade under this Act shall lie to the High Court or Chief Court, as the case may be. The period of limitation for appeals under this sub-section shall be ninety days.

(2) An appeal against any decree or order finally disposing of the case of a Special Judge of the second grade under this Act shall lie to the District Judge. The period of limitation for appeals under this sub-section shall be thirty days.

(2a) An appeal shall lie to the High Court, or Chief Court, as the case may be, from an appellate order or decree of a District Judge passed under Sub-section (2) on one or more of the grounds mentioned in Section 100, Civil P.C., 1908. The period of limitation under this sub-section shall be ninety days.

(3) An appeal against any decision, decree or order of a Collector or Settlement Officer under this Act shall lie to the Board of Revenue. The period of limitation for appeals under this subsection shall be sixty days.

(4) The provisions of Sections 5 and 12, Limitation Act, 1908, shall apply to appeals under this Act.

(5) Subject to the provisions of Sub-section (2-a) the decision on an appeal under this section shall be final and in deciding the appeal the appellate Court may modify or alter or reverse any decree or order of the Special Judge, if in the opinion of the appellate Court it be necessary to do so in the interest of justice and equity.

The next section is Section 46, which gives a statutory right of revision. This section says:

Any Court empowered under Section 45 to hear an appeal under this Act may of its own motion, or on the application of any person concerned, call for the record of proceedings in any case under this Act pending in a Court from which appeals lie to such Court and after giving due notice to the parties concerned pass such order thereon consistent with the provisions herein contained as it thinks fit, and such order shall be final.

Finally Section 47 provides:

Except as provided in Sections 45 and 46, no pro-oeedings of the Collector or Special Judge under this Act shall be questioned in any Court.

None of these sections confers a right of review. The origin of the right of review, assuming it to exist, has to be sought for in Section 54(1) of the Act, which gave the Provincial Government power to make rules. This section runs:

(1) The Provincial Government may make rules consistent with the provisions of this Act for regulating the procedure of the Collector, the Special Judge and the Settlement Officer in proceedings under this Act and generally for carrying out the purposes of this Act, may fix the legal fees chargeable under this Act and may confer the powers of the Collector under this Act on any Assistant Collector of the first class.

7. In due course the Provincial Government did make rules under Revenue Department Notification No. 618/Rev., dated 10th August 1935. The relevant rule for our purposes is Rule 6, which says:

Proceedings under this Act shall be governed by the provisions of the Code of Civil Procedure of 1908, for the time being in force, so far as they are applicable and not inconsistent with the provisions of the Act and of these rules.

8. The preliminary objection can be very shortly stated. It is that, assuming that the Act and the rules made under it allow a review at all, they must be held to allow that review under Order 47 of Schedule 1, Civil P.C., with all the incidents of a review under that order. One of the incidents of a review under Order 47, Civil P.C., is a restricted right of appeal, which the order itself very carefully limits. No doubt the High Court could alter Order 47, if it chose to. But it has not, and it is common ground that, if the right of appeal from the order of review of 29th August 1942 with which we are now dealing is governed by the right of appeal which would be allowed from an ordinary order in review to which Order 47 applies, then inasmuch as the review so far as the second part of the relief was concerned was rejected, there could be no appeal.

9. The view that, in providing for a right of review under the Act-or rather in making it possible for the Provincial Government to provide by rule for a right of review under the Act, the Legislature and the Provincial Government intended that Order 47 should be applied (if at all) as a whole, is one which, I confess, appeals to me on the general principle that a person cannot accept a benefit without any inherent burden attached to it. But the answer to the question appears really to depend on the construction of Section 45 of the Act. If that section is taken to mean that an appeal lies to the High Court, or the Chief Court, as the case may be, from any and every order made by the Special Judge in that capacity no matter what it is then it would appear to be sufficiently wide to allow an appeal from an order made by him in review, notwithstanding that such order were actually made under Order 47, Rule 1 of Schedule 1, Civil P.C., incorporated by reference in the Act by Rule 6 of the Rules made under it. But even that would not preclude the limitation imposed on appeals by Rule 7 of Order 47, unless it has also to be held that such a limitation is not "consistent with the provisions of this Act." In other words it comes down to whether the word "any" in Section 45(1) of the Act means "every," so as to make it mandatory that a right of appeal shall be open in respect of every decree or order which the Special Judge as such may make, so long as it has the effect of "finally disposing of the case," whatever those words may mean. Section 45(1), United Provinces Encumbered Estates Act, is a strange piece of draftsmanship. It reads:

An appeal against any decree or order finally disposing of the case of a Special Judge of the first grade under this Act shall lie to the High Court or Chief Court, as the case may be....

10. Before dealing with the construction of these words, it is to be noticed that the rule making power of the Provincial Government under Section 54(1) of the Act is itself a power limited to the making of rules "for regulating the procedure of...the Special Judge...and generally for carrying out the purposes of this Act...." I myself doubt whether the power contained in this section enabled the Provincial Government by rule, or by incorporating in the Act by reference the First Schedule of the Civil P.C. to confer on parties to proceedings under the United Provinces Encumbered Estates Act any substantive right of appeal that is not provided for by the Act itself. A right of appeal is a substantive right and is not a matter of procedure; still less is it a matter of procedure "of the Special Judge." Attorney-General v. Sillem (1864) 10 H.L.C. 704 at p. 720; Colonial Sugar Refining Co. Ltd. v. Irving (1905) 1905 A.C. 369 at p. 372; Newman v. Klausner (1922) 1 K.B. 228 at p. 231.

11. It may, however, be that a right of review is, for this purpose, a different thing from a right of appeal. A review is a continuation of the proceedings before the Court itself which made the order to be reviewed. In this sense it may perhaps be distinguishable from a right of appeal, which is a right to obtain another hearing from another Court. It may be said, therefore, that a right of review is merely a right to continue the case by having it reheard on certain limited points before the same Court which heard the matter originally and is in that sense a matter of "procedure." Assuming without deciding that this is so, I am prepared to accept it for the purpose of the preliminary objection that the effect of Rule 6 of the Rules made by the Provincial Government under the Act was to incorporate the provisions of Order 47, Rule 1 in respect of review in the procedure of the Special Judge under the Act.

12. This does not, however, solve the question of the meaning of Section 45(1) of the Act in respect to whether, even assuming a review to be allowed, an appeal from an order rejecting a review is governed by the limited appeal provisions of Order 47 or has been enlarged by Section 45(1) of the Act. Section 45(1) of the Act seems, as a matter of language, to admit of an almost indefinite number of constructions. There is the question what is meant by "the case." When that has been solved, there is the question what is meant by the words "any decree or order finally disposing of the case"; and finally there is the question what can be the meaning of the words "under this Act" in the position in which they stand in the section. This last question alone admits of at least four different constructions. Grammatically the words "under this Act" appear to qualify the words "Special Judge of the first grade." This, however, is, to my mind impossible, as it would involve making use of the expression "Special Judge of the first grade under this Act" in this section and nowhere else in the Act, since obviously it is not used in that sense in Section 47. The words "under this Act" could qualify "any decree or order finally disposing of the case," so as to read "any decree or order under this Act finally disposing of the case." Or, again, they might qualify only the word "case," and in that event the section would read "...any decree or order finally disposing of the case under this Act." Finally there is a possible construction that the words "under this Act" might relate to the words "shall lie" which immediately follow. In that case, the section would read "An appeal against any decree or order...shall lie tinder this Act to the High Court...." This is very puzzling. The one construction I believe to be impossible is the strictly grammatical construction of the words as they stand, namely that "under this Act" qualifies "Special Judge." In my view the most reasonable construction is the second one referred to above, namely that "under this Act" qualifies the words "decree or order" and that the whole sub-section should then read: "An appeal against any decree or order under this Act of a Special Judge of the first grade finally disposing of the case shall lie to the High Court or Chief Court, as the case may be...." This requires considerable rearrangement of the words of the section, but I confess that I see no alternative in a case like this. Even more important for the present purpose is the construction of the words "finally disposing of the case." What is meant by it? The decree or order has to 'dispose of something 'finally.' And what has to be finally disposed of is not "a" or "any" case, but "the" case. At first sight, there is an inclination to say that the Act means what it says and that it is "the case under the Act" (i.e., the whole application so far as the Special Judge is concerned under the Act) that has to be finally disposed of by the decree or order, and not some miscellaneous or interlocutory application made in the course of "the case." In this connexion a difference in language is to be noticed between Section 45(1) of this Act and Section 115, Civil P.C. which says:

The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court....

There the indefinite article is used. If this view of the matter is right, then it has to be considered whether an order made by a Special Judge in review under Order 47, Rule 1 is an order "finally disposing of the case." I am aware that the word "case" bears a wide meaning, as in Mt. Suraj Pali v. Ariya Pretinidhi Sabha ('36) 23 A.I.R. 1936 All. 686. But what we are considering here are the words "the case" in the context of this Act. I doubt whether such an order does finally dispose of "the" case. The case was "finally disposed of" by the original order made by the Special Judge under Section 14(7) of the Act. In this case it was the order of 29th August 1942 (sic 1st September 1938?). That, to my mind, was the order of the Special Judge which finally disposed of "the" case; and, even if altered on review, it would nonetheless remain the order finally disposing of "the" case. The order on review, would not itself be substituted as an order for the order of 1st September 1938, but would merely effect some alteration in or modification of it. In this respect it is different from an order made in appeal or revision. In my view the review machinery of the Civil Procedure Code is essentially different from an appeal or revision, in that no order is substituted for the original one, but the original order I stands, with or without some variation in it. As a matter of construction, therefore, I have considerable doubt whether an order rejecting an application for review can be said to be "an order finally disposing of the case." Nor am I convinced that, even if it were, it would be an order made "under this Act." This presupposes that my placing of the words "under this Act" above is right. If it is, then I am inclined to think that an order in review made by the Special Judge under Order 47, which has been applied to the Act, as a matter of procedure under the rule-making power of the Provincial Government, is an order made under Schedule 1 to the Civil P.C., and not "under this Act." No doubt, Order 47 owes its application to the case indirectly to the power contained in Section 54 of the Act. But that is, I think, a different thing from saying that an order in review in such circumstances as these is made "tinder this Act" and not "under the Civil P.C."

13. I think, moreover, that it is not lightly to be accepted that the Legislature has provided a section, or that the Provincial Government has provided a rule, which permits advantage to be taken of part only of Order 47 and allows the rest to be discarded. The right of review is itself one entire creation of the Legislature. It has been created by one entire order under the Civil Procedure Code, and that order - Order 47 - is headed - with a single word "Review." A "review," to my mind, as known to the law, consists of the procedure-and the whole procedure provided by Order 47. A procedure of review, which does not conform in all its incidents to Order 47, is not I think a "review" in the sense known to the law. Putting it in other words, a review which carries with it an unrestricted right of appeal, or a right of appeal other than that provided by Order 47, is not a "review." Where, therefore, Rule 6 provides that Schedule 1 to the Civil P.C., is to apply to proceedings under the United Provinces Encumbered Estates Act, it contemplates either a review of the kind provided by Order 47, or no review at all, since that is the only kind of review which is, in my opinion, known to the law. Finally, I find no necessary inconsistency between the application of Order 47 (together with its appeal restrictions) and Section 45(1) of the Act. I am not prepared to give to the word '"any" a necessary meaning of "every," Though the word "any" is a word of indefinitely wide application the books are full of cases in which in a context it has been given a restricted meaning, e.g., In Re Copp. (1881) 6 Q.B.D. 607, Ex parte Bagster (1883) 24 Ch. D. 477, Irwell v. Eden. (1887) 18 Q.B.D. 588 and London Tobacco Pipe Makers v. Woodroffe (1825) 7 B. & C. 835. In my opinion, the word "any" in Section 45(1) of the Act, means any decree or order "which is appealable." It indicates, not that every single order that proceeds from the mouth of a Special Judge shall be appealable but that an appeal from those orders that are appealable shall lie to the High Court or the Chief Court, as the case may be. If this were not so, I can see no purpose for the words "finally disposing of the case." If every order is to be appealable, then it would be otiose to confine appealable decrees or orders to those which finally dispose of the case. In my judgment the real effect of the incorporation of the whole of Order 47, Civil P.C., in the "procedure" of the Special Judge is not that it has produced an inconsistency, but that it has added an entire piece of new procedure to the procedure under the Act which he already had. This new procedure must be taken as a whole and it produces not, I think, an inconsistency but an addition.

14. There is, I think, authority which, on the whole, supports this view. A similar point arose in this Court under the Provincial Insolvency Act in Munna Lal v. Kunj Behari Lal ('22) 9 A.I.R. 1922 All. 206 and more recently under the same Act in 1935 in the Patna High Court in Nanak Ram Moti lal v. Jugal Kishore ('35) 22 A.I.R. 1935 Pat. 177. In the latter case a Bench of the Patna High Court refused an appeal from the rejection of a review of an order dismissing an insolvency petition on the ground that, although a right of review was expressly incorporated in the procedure of insolvency by Section 5, Provincial Insolvency Act, it was in reality an appeal (sic, a right?) derived directly from Order 47, Civil P.C. and, therefore, an order in review (sic, was one?) from which an appeal was precluded except in conformity with the provisions of the order itself. No doubt, there are some differences between these cases and ours; but the decisions do proceed on the view that, where a right is conferred to have resort to the particular procedure of review under the Code, it must be taken, if taken at all, with all the incidents of a review under Order 47. It is right to point out that learned single Judges of both the Punjab and the Madras High Courts have taken an opposite view so far as an appeal from an order of review is concerned made in insolvency proceedings governed by the Provincial Insolvency Act Sher Singh v. Bishan Lal Suraj Bhan ('37) 24 A.I.R. 1937 Lah. 568 and Veerayya v. Kotireddi ('41) 28 A.I.R. 1941 Mad. 588. In the latter case the learned Judge dissented from the view of the Bench of the Patna High Court referred to above. A further direct authority, however, in favour of the view I have myself expressed above- and one, moreover, under the Encumbered Estates Act itself in reference to Section 45-is the very recent decision of a Bench of the Oudh Chief Court in ('45) 32 A.I.R 1945 Oudh 303 following its own decision in Mt. Raj kunwar v. Gaya Prasad ('43) 30 A.I.R. 1943 Oudh 214. The latter decision, though the reasons of the learned Judges are not given as fully as they might be, is directly in point, and I think that the reasoning implied is much the same as that which I have adopted above.

15. For these reasons my opinion is that an appeal from an order rejecting a review is governed by the provisions of Order 47, Rule 7, Civil P.C., and not by Section 45(1), U.P. Encumbered Estates Act. I think that this construction gives effect to the manifest intention of the Legislature, without doing violence to the words of the Act. Nor, in my opinion, does it produce any inconsistency. In my judgment, therefore, this appeal does not lie. But we have been asked to treat the present, appeal, not only as an appeal, but as an application in revision. I entertain a strong objection in principle to using a roving revisional jurisdiction to circumvent a law which limits an appeal; and I should, where it is necessary, very willingly concur with the Bench of the Patna High Court which said in the case to which I have referred above: Nanak Ram Moti Lal v. Jugal Kishore ('35) 22 A.I.R. 1935 pat. 177 that ....it would not be proper to utilise the power of the Court in revision in order to entertain an appeal where an appeal is expressly prohibited by the Civil Procedure Code....

But it is necessary in this case to put it only on that ground. The right to a revision in the case of "proceedings in any case under this Act" is denned by Section 46 of the Act itself. The power of revision is confined to cases which are "pending." I do not think that this case under the Act is any longer "pending," since it was disposed of by the decree of the learned Special Judge under Section 14(7) of the Act. This is a view which is-supported by authority both of our own Court and of the Chief Court Mohammad Ali v. Bhari Dulhin ('39) 26 A.I.R. 1939 All. 648 and Hari Ram v. Shyam Bahadur ('41) 28 A.I.R. 1941 Oudh 566. In the former of these two cases Rachhpal Singh J. said:

Under this section the power of the Court of revision is confined to oases which are pending and has no reference to cases which have already been decided and are therefore no longer pending. In the case before me, it was open to the applicants to-prefer an appeal against the order of the Court below. For some reason they did not do so. Ordinarily, a litigant should not be heard in revision if he deliberately elected not to avail himself of his remedy by way of appeal which was open to him. If the arguments of learned Counsel for the applicants were accepted then it would mean that it is open to litigants to ignore the provisions relating to filing of appeal and to come to Court by way of revision in each case and thus evade payment of court-fee.

16. In the latter case a Bench of the Oudh Chief Court took the same view and treated the order of the Special Judge under Section 14 of the Act and the sending of the decree to the Collector as putting an end to any pendency of the case so as to permit of a revision under Section 46 of the Act. For these reasons, even had I been willing to treat the present appeal, which, in the view I have taken, is a prohibited appeal, as a revision, I should still have felt constrained to say that it would be a misuse of revisional jurisdiction to employ it as a mere substitute for a forbidden appeal. For the reasons I have already explained, in my opinion no appeal is in this case by law allowed. Nor can I reconcile myself to paying lip service merely to the Statute by holding that, whereas an appeal is disallowed bylaw, an actual appeal may in fact be had merely by the expedient of calling it a revision. If the result of this view is harsh, (as I am afraid it may be) I regret that it must, in my opinion, remain one of those bard cases which should not be permitted to make bad law. In my opinion, therefore, the respondent ought to succeed in his preliminary objection and this appeal, both as an appeal and a revision, ought to be dismissed. I understand that one of my learned brethren takes the same view as I do as to admissibility of the appeal; but that they concur in thinking, contrary to my view, that the appeal should, notwithstanding, be treated as a revision. The appeal must accordingly be treated as a revision, and, in that view of the matter, I agree with them in thinking that the case should be referred back to the Special Judge with a direction that he is to attach no significance as regards relative priorities to the numbering of the debts within class 4; but is now to determine their relative priorities inter se on merits according to law, assuming, of course (as to which I express no opinion) that any question of priority arises at this stage.

Wali Ullah, J.

17. This is an appeal against an order dated 29th August 1942, passed by a Special Judge of the first grade by which he rejected an application which was in effect an application for review of a judgment and decree in proceedings under the Encumbered Estates Act. There is a prayer appended to the memorandum of appeal to the effect that in case this Court holds that no appeal lies the appeal may be treated as a revision. Briefly put the relevant facts are these : On 15th November 1907, Brij Kishore, grandfather of Sharda Prasad, respondent 2, executed a mortgage in favour of Shyam Behari Lal, father of the appellant Ramesh Chand. On 7th June 1920, a fresh mortgage was executed in lieu of the mortgage of 1907 in favour of Shyam Behari Lal. In 1933 Ramesh Chand obtained a decree on the basis of his mortgage. On 3rd October 1918, one Badri Prasad made a mortgage in favour of Dwarka Prasad, father of Dr. Shyam Lal, respondent 1. Badri Prasad subsequently transferred his equity of redemption in favour of Gaurey Lal father of Sharda Prasad, respondent 2. On 16th February 1922, Gaurey Lal executed a fresh mortgage in lieu of the mortgage of 1918 in favour of Dwarka Prasad. In 1934 Dr. Shyam Lal also obtained a decree on the basis of his mortgage. In 1936 Sharda Prasad, respondent 2 and his two sons, respondents 3 and 4, applied under Section 4, U.P. Encumbered Estates Act, both Ramesh Chand, the appellant and Dr. Shyam Lal, respondent 2, put in their claims as secured creditors and the learned Special Judge determined the claims of both these creditors and passed decrees in their favour on 1st September 1938. The decree (No. 15 of 1933) in favour of Ramesh Chand appellant was for Rs. 15,482-2-0 and the decree (No. 41 of 1934) in favour of Dr. Shyam Lal was for Rs. 7306. The learned Special Judge by his judgment dated 1st September 1938, also appears to have ranked the debts in favour of these two creditors putting them both in class 4 of Section 16, but he put down the decree in favour of Dr. Shyam Lal at Serial No. 1 and the decree in favour of Ramesh Chand appellant at Serial No. 2 within the same class, namely class No. 4. On 27th October 1939, Ramesh Chand appellant filed an application in the Court of the learned Special Judge for the amendment of his decree. This prayer was granted by order dated 24th September 1940. On 23rd July 1942, Ramesh Chand appellant filed another application. It purported to be under Sections 151, 152 and 153, read with Order 47, Rule 1, Civil P.C. There were two prayers in this application : (a) that the figures of the decree dated 1st September 1938, should be corrected so as to conform to the amendment allowed by the order dated 24th September 1940 and (b) that the order in which the two debts due to the appellant and Dr. Shyam Lal respectively had been placed in the ranking of the debts, under class 4 of Section 16, by the judgment of the learned Special Judge, should be reversed so that the appellant's debt might appear at Serial No. 1 and the respondent Dr. Shyam Lal's debt might appear at Serial No. 2 within the same class. The learned Special Judge who was the successor-in-office to the learned Judge who had passed the decree on 1st September 1938 and later allowed the application for amendment on 24th September 1940, by his order dated 29th August 1942, granted the first prayer and ordered the decree as passed on 1st September 1938 to be corrected. He, however, declined to grant the second prayer as he was of the view that in the decrees passed on 1st September 1938, the ranking had already taken place. He went on to observe that if the applicant Ramesh Chand felt aggrieved thereby he should have gone up in appeal. It is this order of the learned Special Judge that is sought to be challenged by means of this appeal.

18. At the hearing a preliminary objection has been taken on behalf of the respondents to the effect that the order of the Special Judge rejecting the application for review in the proceedings under the Encumbered Estates Act is not open either to appeal or to revision in this Court. Before taking up the two questions involved in the preliminary objection it is necessary to consider the relevant provisions of the U.P. Encumbered Estates Act. Chapter 6 of this Act deals-with "Appeal and Revision." Section 45 which provides for appeals reads:

45. (1) An appeal against any...decree or order finally disposing of the case of a Special Judge of the first grade under this Act shall lie to the High Court or Chief Court, as the case may be. The period of limitation for appeals under this sub-section shall be ninety days.

19. The provisions of Section 45(1) as they originally stood when the Act was passed in 1934 were these:

An appeal against any decision, decree or order of a Special Judge of the first grade under this Act shall lie to the High Court or Chief Court, as the case may be. The period of limitation for appeals under this sub-section shall be ninety days.

20. These provisions clearly indicated that an appeal was provided against every decision, decree or order of a Special Judge of the first grade. The Legislature, however, intervened and by Act, 11 [XI] of 1939, provided that the word "decision" be omitted from this sub-section and the words "finally disposing of the case" immediately after the expression "decree or order" were inserted. The object of the Legislature appears to have been to restrict the possibility of delay in proceedings before the Special Judge by providing that an appeal would lie only against a decree or order finally deciding the case. Section 46 which provides for revisions reads thus:

Any Court empowered under Section 45 to hear an appeal under this Act may of its own motion, or on the application of any person concerned, call for the record of proceedings in any case under this Act pending in a Court from which appeals lie to such Court and after giving due notice to the parties concerned pass such order thereon consistent with the provisions herein contained as it thinks fit, and such order shall be final.

Lastly Section 47 says:

Except an provided in Sections 45 and 46, no proceedings of the Collector or Special Judge under this Act shall be questioned in any Court.

21. It should be noted that there is no specific provision for "review" in this Act, but Section 54 empowers the Local Government to make rules. That section reads:

54. (1) The Local Government may make rules consistent with the provisions of this Act for regulating the procedure of the Collector, the Special Judge and the Settlement Officer in proceedings under this Act and generally for carrying out the purposes of this Act, may fix the legal fees chargeable under this Act and may confer the powers of the Collector under this Act on any Assistant Collector of the first class.

22. In exercise of the powers conferred by Section 54 rules were framed by the Provincial Government and the relevant rule (as amended) for purposes of this case is Rule 6 which reads thus:

Proceedings under this Act shall be governed by the provisions of the Code of Civil Procedure of 1908, for the time being in force so far as they are applicable and not inconsistent with the provisions of the Act and of these rules.

23. It will be seen from the above mentioned provisions that the proceedings conducted by the Special Judge under this Act are to be governed by the provisions of the Code of Civil Procedure so far as they are applicable and are not inconsistent with the provisions of the Act and of the rules. The Encumbered Estates Act does contain some provisions relating to the procedure which has to be adopted by the Special Judge and the Collector. To the extent that such pro-visions of the Act are inconsistent with the provisions contained in the Code of Civil Procedure the latter provisions would obviously have no application.

24. I now proceed to examine the preliminary objections. Question 1 is: Is the appeal competent? The learned Counsel for the respondents contends in the first place that inasmuch as it is Order 47 of Schedule 1, Civil P.C., that has conferred a right to apply for review the limitations imposed by Rule 7 thereof must govern the right of appeal. In other words, it is contended that Order 47 must be availed of as a whole or not at all and as Rule 7 thereof prohibits an appeal against an order rejecting an application for review it follows, so it is argued, that the present appeal is incompetent. For determining whether this argument has any substance in it is necessary, in my judgment, first of all to examine the provisions of Section 45 of the Act which provides for an appeal. On a proper construction of this section if it be held that an appeal lies in a case like the present then obviously the provisions of the Civil Procedure Code, if any, including Rule 7 of Order 47 being "inconsistent with the provisions of the Act" would be entirely inapplicable. The first question, therefore, is, does, the present appeal fall within the scope of Section 45(1) of the Act? It would appear from the provisions of this section that an appeal is provided only against certain decrees or orders and not against all the decrees or orders which may be passed by the Special. Judge. The provisions of the section are couched in language which, to my mind, is not at all clear and creates various difficulties as regards the construction which has to be put upon these provisions. In the first place the expression "any decree or order finally disposing of the case" requires, to start with, a clear idea as to what the words "the case" really mean. Do these words mean the same thing as is meant by the expression "any case" as used in Section 115, Civil P.C., or are they wider or narrower? Again, the expression "under this Act" occurs immediately after the words a Special Judge of the First Grade." The question is : Is the expression "under this Act" applicable to the expression "a Special Judge of the First Grade" or to the expression "any decree or order finally disposing of the case"? Learned Counsel for the respondents has argued that the provisions of this section give a right of appeal only against decrees or orders passed under the specific provisions of this Act and not against decrees or orders which may be passed under other provisions of the law applicable, e.g., under the Civil Procedure Code. The argument in substance comes to this that the order passed by the learned Special Judge on the application for review was not an order passed under the provisions of this Act, but one passed under the provisions of Order 47, Civil P.C. There would, therefore, according to this contention, be no appeal in the present case. The learned Counsel would read the expression "under this Act" as applicable to the "decree of order" passed by the Special Judge. The argument addressed by the other side, however, is that the expression "under this Act" in the place where it occurs in this section, must be held to govern the expression which immediately precedes it, viz., "a Special Judge of the First Grade." The point is not free from serious difficulties. It would, however, in my opinion be helpful to consider the provisions of Section 47 where also the expression "under this Act" occurs immediately after the words "Special Judge." So far as Section 47 is concerned the provisions read thus:

Except as provided in Sections 45 and 46 no proceedings of the Collector or Special Judge under this Act shall be questioned in any Court.

25. It seems to me that it is difficult to hold that the words "under this Act" in Section 47 are applicable only to the "Special Judge" and not to the "Collector." It follows, therefore, that the provisions of Section 47, when expanded, may be read like this:.... "No proceedings of the Collector under this Act shall be questioned in any Court. Similarly no proceedings of the Special Judge under this Act shall be questioned in any Court."

26. Obviously the Legislature must be deemed to have used the expression "under this Act," in the two sections, in the same sense. An examination of the scheme and the provisions of this Act would make it abundantly clear that there are no provisions contained in it for the appointment of an officer called & Collector under this Act. It is clear, therefore, that the expression "under this Act" is necessarily applicable to the "proceedings" and does not govern the expression "the Collector or the Special Judge." It seems to me that the proper interpretation of the expression "under this Act" as contained in. Section 45(1) would be that it refers to the words "decree or order" and not to the expression "a Special Judge of the First Grade." An appeal can, therefore, lie within the provisions of this section only against a decree or order which is passed under the provisions of this Act. There being no provision for a review contained in the Encumbered Estates Act, the application for review was entertained by the learned Special Judge under the provisions of Order 47, Civil P.C. The learned Judge, therefore, must be held to have passed the order in question in pursuance of the provisions of Order 47, Civil P.C., and not in accordance with the provisions of the Encumbered Estates Act. In this view of the interpretation of Section 45 of the Act, it would appear that the appeal does not come within the scope of Section 45 and therefore the appeal is incompetent.

27. In the view which I have taken about the construction to be put on the expression "under this Act" as contained in Section 45(1), Encumbered Estates Act, it is not really necessary to discuss the implications of the expression "the case" which occurs in an earlier part of this sub-section. It may well be that the expression "the case," is not synonymous with the case or the proceedings started by means of the application under Section 4 of the Act. Before the proceedings in the Court of the Special Judge finally terminated there may be "objections filed by different parties, e.g., objections relating to the property, which are disposed of under Section 11 of the Act. Decisions on such objections are to be deemed to be decrees of civil Courts of competent jurisdiction and as such clearly open to appeal. In Mt. Raj Kunwar v. Gaya Prasad ('43) 30 A.I.R. 1943 Oudh 214, two learned Judges of the Oudh Chief Court, in a case which was on all fours with the present, have observed:

Section 45(1) contemplates an order passed by the Special Judge under the Encumbered Estates Act and it is only against that order finally disposing of the case that an appeal has been provided under Section 45(1).

It was held that in proceedings under the Act, an order by the Special Judge, rejecting an application for review was not an order under the U.P. Encumbered Estates Act, but an order under the Civil Procedure Code and therefore Section 45(1), U.P. Encumbered Estates Act, does not apply and an appeal is barred by Order 47, Rule 7, Civil P.C. The same line of reasoning has been adopted by a Bench of two learned Judges of the Oudh Chief Court in Mt. Roop Kunwar v. Deputy Commissioner of Kheri ('45) 32 A.I.R. 1945 Oudh 303. The observations in the judgment in Mt. Roop Kunwar v. Deputy Commissioner of Kheri ('45) 32 A.I.R. 1945 Oudh 303 make it abundantly clear that the principle of the decision in Mt. Raj Kunwar v. Gaya Prasad ('43) 30 A.I.R. 1943 Oudh 214 was fully affirmed in this case. Again in Nanak Ram Moti Lal v. Jugal Kishore ('35) 22 A.I.R. 1935 Pat. 177, two learned Judges of the Patna High Court held that no appeal lay from the order refusing review in proceedings in insolvency. That was the case of an appeal under Section 75, Provincial Insolvency Act, against the order of the District Judge whereby he had dismissed an application for review of an earlier order passed by his predecessor in office. It was contended in that case that as there are special provisions for appeals contained in Section 75, Provincial Insolvency Act, the provisions of Order 47, Rule 7 could not be held to apply to the order under appeal. This contention was repelled by the learned Judge who held:

There is nothing in the Provincial Insolvency Act itself which authorises the District Judge to review his orders; and in fact the petition for review which was presented to him purported to be a petition under Order 47, Rule 1, Civil P.C., which the Judge was empowered to entertain under Section 5, Provincial Insolvency Act. It is clear, therefore, that no appeal can be entertained from the order refusing review.

It may be observed that Section 5, Provincial Insolvency Act, like Rule 6 framed by the Provincial Government under powers conferred by Section 54, U.P. Encumbered Estates Act, provides for the application of the Civil Procedure Code to proceedings under the Insolvency Act. In Munna Lal v. Kunj Behari Lal ('22) 9 A.I.R. 1922 All. 206 which was also a case under the Provincial Insolvency Act, two learned Judges of this Court appear to have taken a somewhat similar view. On the other hand, the cases in Sher Singh v. Bishan Lal Suraj Bhan ('37) 24 A.I.R. 1937 Lah. 568 and Veerayya v. Kotireddi ('41) 28 A.I.R. 1941 Mad. 588, have been relied upon by the learned Counsel for the appellant. They are both cases under the Provincial Insolvency Act. In Sher Singh v. Bishan Lal Suraj Bhan ('37) 24 A.I.R. 1937 Lah. 568 it was held by a learned Single Judge of the Lahore High Court that the provisions of the Civil Procedure Code are made applicable to insolvency proceedings by Section 5, Provincial Insolvency Act; but those proceedings are subject to the provisions of the Insolvency Act. Consequently when the right of appeal is expressly regulated by Section 75, Provincial Insolvency Act, it should not be taken to be governed by the provisions of Order 47, Rule 7, Civil P.C. Similarly in Veerayya v. Kotireddi ('41) 28 A.I.R. 1941 Mad. 588 a learned Judge of the Madras High Court held as follows:

Section 5 of the Act, makes the Civil Procedure Code applicable only subject to the provisions of the Act, that is to say, whenever any provision of the Civil Procedure Code is in conflict with an express provision in the Insolvency Act, the latter provision shall prevail. Section 75 of the Act clearly provides for a right of appeal to the District Judge's Court from an order made in the exercise of insolvency jurisdiction by a Court subordinate to it, and this provision must be taken to override Order 47, Rule 7 in so far as it bars a right of appeal from an order rejecting an application for review.

28. With regard to the above two cases it must be noted that it was definitely held in both of them that the appeal clearly lay under the provisions of Section 75, Provincial Insolvency Act. It is, therefore, obvious that the provisions of Order 47, Rule 7, Civil P.C., which prohibits an appeal being inconsistent with the provisions of Section 75 were held to be inapplicable. In view of the matter which has commended itself to me it is clear that in the present case no appeal lay under the provisions of Section 45 of the Act. That being so, there is no question of an inconsistency, or conflict, between the provisions of the Encumbered Estates Act and the provisions contained in Order 47, Rule 7, Civil P.C. I am, therefore, of the opinion that in the present case no appeal lies to this Court.

29. The next question is : Does a revision lie in the circumstances of the present case? The provisions of Section 46, Encumbered Estates Act, provide for a very special kind of revision. The Court empowered under Section 45 to hear an appeal is invested with the power of calling for the record of proceedings in any case under the Act pending before the Subordinate Court, namely the Court of the Special Judge of the first grade or the second grade as the case may be. But as the provisions of Section 46 themselves make it very clear the power of the Court of revision is confined to cases which are pending and has no reference to those which have already been decided. In Mohammad Ali v. Bhari Dulhin ('39) 26 A.I.R. 1939 All. 648 it has been held by a learned single Judge of this Court that there is a considerable difference between the provisions of Section 115, Civil P.C., and Section 46, Encumbered Estates Act. The power of revision under Section 46, Encumbered Estates Act, is limited to the Court to which an appeal lies and it is further restricted to cases which are pending and has no reference to cases which have already been decided. The question, therefore, arises whether a revision lies to this Court under Section 115, Civil P.C. That here there is a "case decided" within the meaning of Section 115, Civil P.C., can, in my view, admit of no doubt. There are numerous cases in which tests have been laid down for determining whether there is a "case decided" and it is wholly unnecessary for me to go further than to indicate what I consider to be the net result of the rulings of this Court. If there are independent proceedings arising out of a case, such as a proceeding to restore a case dismissed for default or to set aside a decree ex parte, such proceedings may be a case within the meaning of Section 115, Civil P.C. Reference might be made to the case in Gupta & Co. v. Kirpa Ram Bros. ('34) 21 A.I.R. 1934 All. 620 at page 382 and to the case in Mt. Suraj Pali v. Ariya Pretinidhi Sabha ('36) 23 A.I.R. 1936 All. 686. That this Court has revisional jurisdiction under Section 115, Civil P.C., to interfere with orders passed by subordinate Civil Courts in proceedings under the Encumbered Estates Act is also clearly established. Reference might be made to the case in Ashraf v. Saith Mal ('38) 25 A.I.R. 1938 All. 47 and to the case in Achraj Singh v. Hardwar ('41) 28 A.I.R. 1941 All. 131. I am, therefore, of opinion that the answer to the second question must be in the affirmative.

30. On the merits of the application it is clear, in my view, that the order of the learned Special Judge dated 29th August 1942, wherein he held that the ranking of the decrees had already taken place in the judgment passed on 1st September 1938, was entirely erroneous. It is impossible to hold that any question of priority inter se between the two creditors, was considered, or determined, by the learned Special Judge in his judgment dated 1st September 1938. I respectfully agree with all that my learned brother Sinha has said on this point. The learned Special Judge, who was the successor-in-office to the learned Judge who passed the original order, should have considered the application and passed an order on merits. He had abundant powers to do so but he seems to have failed in his duty. The application before him was one which was not merely under Order 47, Rule 1, but also under Section 151, Civil P.C., and he had, in my opinion, ample powers to grant the prayer in regard to this matter. I would, therefore, allow this application in revision and set aside the order dated 29th August 1942, and send the case back to the learned Special Judge for disposal according to law.

Sinha, J.

31. This is an appeal against an order of the learned Special Judge of Etawah refusing to grant an application which was, in effect, an application for review. The following genealogical table will be helpful:

Brij Kishore | Gauri Lal | Sharda Prasad

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32. On 15th November 1907, Brij Kishore granted a simple mortgage for Rs. 7000 in favour of a man named Shyam Behari Lal. On 3rd October 1918, one Badri Prasad made a mortgage in favour of Dwarka Prasad. Badri subsequently transferred his equity of redemption to Gauri Lal, Brij Kishore being then dead. On 7th June 1920, Gauri Lal executed a fresh mortgage, in lieu of the mortgage of 1907, in favour of Shyam Behari Lal On 16th February 1922, Gauri Lal renewed the mortgage of 1918, in favour of Dwarka Prasad. In 1933 Shyam Behari's son Eamesh Chand, obtained a decree, on the basis of his mortgage. In 1934 Dwarka Prasad's son Shyam Lal, secured a decree on the basis of his mortgage. In 1936 Sharda Prasad made an application under Section 4, U.P. Encumbered Estates Act. Eamesh Chand and Shyam Lal appeared before the Special Judge, who, by his judgment of 1st September 1938, found, certain sums due on their mortgages. But, instead of confining himself strictly within the four corners of Section 14(7), Encumbered Estates Act, he ranked the debts under class 4 of Section 16. Although it is obvious that Eamesh Chand was the prior mortgagee and Shyam Lal was a subsequent mortgagee, the learned Special Judge mentioned Shyam Lal first and Ramosh Chand next.

33. In 1939 an application for amendment of the decree was made to the Special Judge by Ramesh Chand. This prayer was granted. On 23rd July 1942 he made another application under Sections 151, 152 and 153 read with Order 47, Rule 1, Civil P.C. This application contained two prayers. The first was a prayer for correction of the figure in the decree of 1st September 1938, so that the order granting amendment might be carried into effect, and the second prayer was that the order adopted by the learned Special Judge in the ranking of the debts under class 4 of Section 16 should be reversed; in other words, he should be placed above Shyam Lal. The learned Special Judge granted the first part of the application. But, while dealing with the second part, he passed the following order:

In the decree passed on 1-9-1938 the ranking of the decrees was done. If the applicant was aggrieved against that ranking, he should have gone up in appeal. I am not prepared to modify the order of my learned predecessor, dated 1-9-38, and find that this application is not maintainable to the extent so far as relief (b) of this application goes.

34. It is this order against which the present appeal has been preferred. Mr. Pathak, the learned Counsel for the respondents, has raised a preliminary objection that no appeal lies. My brother Braund has upheld this objection. I have the misfortune to differ from him. Section 45, Encumbered Estates Act, gives a right of appeal and is in these terms:

45. (1) An appeal against any decree or order finally disposing of the case of a Special Judge of the first grade under this Act shall lie to the High Court or Chief Court, as the case may be. The period of limitation for appeals under this subsection shall be 90 days. (2) An appeal against any decree or order finally disposing of the case of a Special Judge of the second grade under this Act shall lie to the District Judge. The period of limitation for appeals under this sub-section shall be 30 days. (2-a) An appeal shall lie to the High Court or Chief Court, as the case may be, from an appellate order or decree of a District Judge passed under Sub-section (2) on one or more of the grounds mentioned in Section 100, Civil P.C., 1908. The period of limitation under this sub-section shall be 90 days. (3) An appeal against any decision, decree or order of a Collector or Settlement Officer under this Act shall lie to the Board of Revenue. The period of limitation for appeals under this subsection shall be 60 days. (4) The provisions of Sections 5 and 12, Limitation Act, 1908, shall apply to appeals under this Act. (5) Subject to the provisions of Sub-section (2-a) the decision on an appeal under this section shall be final and in deciding the appeal the appellate Court may modify or alter or reverse any decree or order of the Special Judge, if in the opinion of the appellate Court it be necessary to do so in the interest of justice and equity.

Section 46 gives a right of revision and runs thus:

Any Court empowered under Section 45 to hear an appeal under this Act may of its own motion, or on the application of any person concerned, call for the record of proceedings in any case under this Act pending in a Court from which appeals lie to such Court and after giving due notice to the parties concerned pass such order thereon consistent with the provisions herein contained as it thinks fit, and such order shall be final.

There is no provision for review in the Act and for this the aid of the Code of Civil Procedure has to be invoked. We have now to see in what manner that aid can be revoked. Section 54 arms the Local Government with the right to make rules consistent with the provisions of this Act for regulating the procedure of the Collector, the Special Judge and the Settlement Officer in proceedings under this Act and generally for carrying out the purposes of this Act, may fix the legal fees chargeable under this Act and may confer the powers of the Collector under this Act on any Assistant Collector of the first class.

35. In exercise of these powers the rules were made and one of them is Rule 6 which says that Proceedings under this Act shall be governed by the provisions of the Code of Civil Procedure of 1908, for the time being in force, so far as they are applicable and not inconsistent with the provisions of the Act and of these rules.

36. The important words are "proceedings under this Act" and "not inconsistent with the provisions of the Act and of these rules." Section 47 of the Act says that Except as provided in Sections 45 and 46, no proceedings of the Collector or Special Judge under this Act shall be questioned in any Court.

37. It is contended by the learned Counsel for the respondents that, review being permissible only under the Code of Civil Procedure, it is only to that Code to which we must look for a right of appeal. Order 47, Rule 1 lays down the conditions of review. Order 47, Rule 7 forbids an appeal against an order rejecting an application for review, it permits one against an order granting the application but within very narrow limits. Order 43, Rule 1, Clause (w) says the same. But Section 104, Civil P.C., introduces a qualifying clause. It says:

An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force.

38. The expression "save as...any law for the time being in force" clearly means that, an appeal shall lie, if it is permissible under "any law for the time being in force", in spite of the provisions of the Civil Procedure Code to the contrary. Section 54 which gives the Local Government the power to make rules clearly says that those rules must be "consistent with the provisions of this Act." Rule 6 also emphasises the same point of view, when it says that though the proceedings may be governed by the Civil Procedure Code, nevertheless only such provisions as are "not inconsistent with the provisions of the Act and of these rules." A reading of the provisions of the Civil Procedure Code and of the Encumbered Estates Act makes it clear that the Code could not, even if it intended to take away the right of appeal, if that right had been recognized by the Act. But, far from not permitting such a right, it expressly yields place to "any law for the time being in force." That law for the time being in force is the U.P. Encumbered Estates Act and there is therefore no real conflict between the Civil Procedure Code and the U.P. Encumbered Estates Act. It must also be borne in mind that all that the Rule 6 of the Rules says is that: "Proceedings under this Act shall be governed by the provisions of the Civil Procedure Code." It does not provide even for the law of procedure in its entirety, but it only provides the manner and method for the actual working in the Court. An appeal is not a matter of procedure or adjective law at all. It is a substantive right. It was said in Colonial Sugar Refining Co. Ltd. v. Irving (1905) 1905 A.C. 369 by Lord Macnaghten that:

To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.

In Rama Singha v. Shankar Dayal ('28) 15 A.I.R. 1928 All. 437 it was clearly held that: "right of appeal is a substantive right and not a matter of procedure." An application for review may lie under the Civil Procedure Code; but if the Legislature makes a special provision for a right of appeal, that right cannot be controlled by the Civil Procedure Code. If it does make an attempt to do that, it must fail on the plain language of Rule 6, read with Section 45 of the Act.

39. Reliance has been placed upon the case in Munna Lal v. Kunj Behari Lal ('29) 9 A.I.R. 1922 All. 206 and Nanak Ram Moti Lal v. Jugal Kishore ('35) 22 A.I.R. 1935 Pat. 177. The first case is against the appellant as far as it goes, but I do not think it affords a proper guide. Section 75(3), Provincial Insolvency Act (Act 5 [V] of 1920) itself gives a very limited right of appeal. Indeed, there is no appeal without the leave of the Court. The Legislature had, therefore, the same intention in mind, while enacting Order 47, Rule 7 or Order 43, Rule 1, Clause (w), on the one side, and Section 75(3), Provincial Insolvency Act, on the other. On the other hand, we find in the U.P. Encumbered Estates Act a definite provision that anything which is inconsistent with the provisions of this Act has to be rejected. The Patna case is also open to the same criticism. On the other hand, there is a case of the Lahore High Court, Sher Singh v. Bishan Lal Suraj Bhan ('37) 24 A.I.R. 1937 Lah. 568 which is an authority for the proposition that, if there is a special enactment, it is that enactment to which one must look for the right of appeal, even though the application for review was made under Order 47, Rule 1, Civil P.C. The Lahore view has been accepted in the case in Veerayya v. Kotireddi ('41) 28 A.I.R. 1941 Mad. 588 The point really is, will the saving clause "by any law for the time being in force" be given effect to in every case or only if the proceedings in the primary Court are also governed by that law? This question has, as mentioned above, been answered by the Lahore and Madras High Courts in favour of the appellant, but as a discordant note has been struck by Patna and also seemingly by this Court, I propose to go fully into the matter.

40. Section 104 of the C.P.C., the Act of 1908 corresponds with Section 588 of the Code of 1882. The saving clause is not to be found in the earlier Act and represents the view of the High Courts in India, to some of which I shall make reference, based upon an earlier Privy Council case reported in Hurish Chunder v. Kali Sundari Devi ('83) 9 Cal. 482. This case was itself founded upon the well-known principle of law, generalia specialibus non derogant. According to Broome's Legal Maxims, the above embodies the well-known principle of law that the general must yield to the special. Their Lordships of the Privy Council were called upon to consider the question whether Section 15, Letters Patent Act, controlled or was controlled by the Code of Civil Procedure. The question in that case was whether a certain order passed by Pontifex J., was a judgment within the meaning of the law. It was quite clear in that case that the order was not one which was appealable under the Code of Civil Procedure. In one sense, according to the view of Sir Richard Garth, the Chief Justice, expressed in those very proceedings, and to the view of this Court in Banno Bibi v. Mehdi Husain ('89) 11 ALL. 375 and Muhammad Naimullah Khan v. Ihsan Ullah Khan ('92) 14 All. 226 (F.B.), it was a purely ministerial order; but it was held by the Judicial Committee that it was a 'judgment' within the meaning of Section 15, Letters Patent. Their Lordships held that the special legislation called the Letters Patent must control the general legislation i.e., the Civil Procedure Code. Say their Lordships:

It only remains to observe that their Lordships do not think that Section 588 of Act 10 of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the full Court.

41. Is there any justification for holding that the application of this universal rule of law should be confined only to those cases in which proceedings both in the primary Court and also in the secondary Court, are governed by that special legislation? There is no justification for introducing such a restriction and the answer to this question is furnished by the decision of their Lordships themselves. The proceedings which culminated in the order of Pontifex J. were proceedings in a usual suit for declaration of title brought in the Court of the Subordinate Judge of Mymensingh, taken in appeal to the High Court and then to their Lordships of, the Privy Council. The point has been made clear in Toolsee Money Dassee v. Sudevi Dessee ('99) 26 Cal. 361. Its facts were these : A suit was brought for the return of certain jewellery before Sale J. in his original jurisdiction. The matter was referred to arbitration. Several meetings were held. The sixth meeting was fixed for Sunday, 21st November 1897, and the defendants' attorney wrote to the arbitrators protesting against the holding of meetings on Sundays or out of office hours. After several adjournments the arbitrators, on 7th January 1898, issued notices for the meeting to be held that evening at 6-30 p. M. The defendants were not present either in person or through their attorney. The award was made and the defendants applied to Sale J. to set it aside. He rejected the application by an order passed on 22nd March 1898. He passed a decree in terms of the award on 5th May 1898. "Without waiting for the latter order, the defendants went in appeal against the order dated 22nd March 1898, passed by Sale J.

42. A preliminary objection was taken that the order was an interlocutory order. The Full Bench consisting of Sir Francis W. Maclean C.J., Prinsep and Ameer Ali JJ. held, on the strength of the observations of their Lordships of the Privy Council in Hurish Chunder v. Kali Sundari Devi ('83) 9 Cal. 482 that in view of the special enactment, i.e., Section 15, Letters Patent, the preliminary objection must fail.

43. It might be noted, in passing, that the appeal against the order of Sale J., was open to yet another objection. Section 522 which represented para. 16, Schedule 2, Civil P.C., did not provide any appeal against a decree passed in terms of the award. Both objections-the order was an interlocutory order and it was one against which no appeal was provided by Section 522-were overruled, the former expressly and the latter by implication. This Full Bench case considered the two cases of the Allahabad High Court, 22. Banno Bibi v. Mehdi Husain ('83) 11 All. 375 and Muhammad Naimullah v. Ihsan Ullah Khan ('92) 14 All. 226 (F.B.) and held that they went against the spirit or perhaps the express meaning of their Lordships of the Privy Council. The Madras High Court in Chappan v. Moidin Kutti ('99) 22 Mad. 68 and Sabhapathi Chtti v. Narayanasami Chetti ('02) 25 Mad. 555, held the same view. The above are clear authorities for the proposition that, even though the original proceedings are governed by the Code of Civil Procedure, that is the general law, the special legislation will step in, even at the appellate stage, to control the appeal.

44. The point seems to have received the attention of their Lordships in a comparatively recent case in Mt. Sabitri Thakurain v. Savi ('21) 8 A.I.R. 1921 P.C. 80 The facts were briefly these. Mt. Sabitri applied for letters of administration, with a copy of the will annexed, in respect of the property of her late husband. Caveat was entered by Savi on the basis of a later will. Chaudhuri J., dismissed the petition. Sabitri preferred an appeal. An application under Order 41, Rule 10, Civil P.C., was made on behalf of the respondent requesting the Court to call upon the appellant to furnish security. She failed to furnish the necessary security within the time allowed. On 22nd February 1915, the respondent filed a petition stating the amount of costs and, praying for the dismissal of the appeal. Upon this, the appellant for the first time, sought to proceed in forma pauperis and telegraphed to the Chief Justice of the Calcutta High Court begging for an opportunity to make an application for that purpose. She was given a week's time and filed a petition on 23rd March 1915. On the same day an order was passed refusing her application and this order was challenged in appeal before their Lordships of the Privy Council. The principal argument was that Order 41, Rule 10 had no application to proceedings in Letters Patent and reliance was placed upon the case in Sesha Ayyar v. Nagarathna Lala ('04) 27 Mad. 121. It was contended that if full effect was given to Order 41, Rule 10, in an appeal under the Letters Patent, it would interfere with the right of appeal and curtail the right of a party to proceed in forma pauperis. Their Lordships disposed of this argument in these terms:

There is a fallacy involved in the appellant's argument that the Letters Patent right of appeal is limited and to a certain extant taken away by Orders and Rules, which prevent the High Court from permitting the continuance of such an appeal in forma pauperis at any stage, for there is of course a marked difference between a right to appeal on ordinary terms and without special indulgence, and a power to relieve the appellant in the exercise of that right from the burden of the ordinary terms. The High Court order as to security for costs is not a limit on the right to appeal, nor does it take the right to appeal away, but it is a rule of procedure now applicable to the appeal under the Letters Patent under the words 'any law for the time being in force,' which are contained in Section 104.

45. In other words, the right of appeal recognised by a special Act was not taken away by the general law, that is the Code of Civil Procedure. That right remained unaffected ; but the ordinary conditions regulating the procedure of the appeal were held to apply. The very application of these conditions presupposes the existence of a substantive right of appeal, inasmuch as, if there is no appeal, there will be no occasion or necessity to control or regulate its course. It has been contended by the learned Counsel for the appellant that Section 45, U.P. Encumbered Estates Act, provides an appeal against "any decree or order finally disposing of the case." The case, it is argued, was concluded on 1st September 1938 and nothing done thereafter, by way of review or any other proceeding, can detract from the finality of that order. It is also contended that the expression used is not V or 'any case,' but 'the case,' which means that the Act contemplates one and only one 'case.' In support of this contention the language used in Section 115, Civil P.C., or Section 46, Encumbered Estates Act, which speak of "any case" is relied upon. This line of argument does not commend itself to me, in that it proceeds upon the assumption that a. "case" or "order" or "decree" are synonymous expressions. It is doubtful if there must necessarily be even one decree in a suit, inasmuch as the definition of a decree in Section 2, Clause (2), Civil P.C., itself militates against this idea. But it is certainly not a fact that, there can be only one "order" or one "ease" in a suit. I am aware of the view of Lindsay J., shared, though not in its entirety, by Ashworth J., in Nannu Prasad v. Nazim Hussain ('28) 15 A.I.R. 1928 All. 274 that:

(a) The law, in my opinion, contemplates that there should be only one decree in one suit, except in certain cases in which the Code of Civil Procedure lays down that there may or must be two decrees, one preliminary and one final.

(b) So while it may be that for purposes of procedure and in order to formally complete the records it may be necessary in the case of cross-appeals to draw up a separate decree in each case, there is, in fact, only one and the same decree which ought to be incorporated with each appellate record.

Ashworth J. has himself said at page 266 that:

But there appears to be some ground for considering that the Civil Procedure Code recognises more than one decree in a suit. Certainly practice does. The practice is, where there are two cross-appeals, to frame two separate decrees.

though he has wound up his judgment by holding : "My view then is that the Civil Procedure Code only contemplates a single decree at one time in any one suit." With great respect, it is impossible to agree with Lindsay J. Section 2, Clause (2), Civil P.C., defines a decree as:

The formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

When it says "all or any of the matters in controversy" it means that there can be more than one matter and when it assigns the status of a decree to "the formal expression of an adjudication" of any one of those matters, it necessarily connotes more than one decree. With the utmost respect, there is no point in the observation of Ashworth J. that the Code of "Civil Procedure contemplates "a single decree at one time in any one suit." The section speaks in terms of "matters" - all or any one of the matters - and let alone a decree, there can be only one "order" or "case" at one time. It will lead to strange anomalies if there could, on any particular matter, be more than one order - not order in the sense of an administrative order, but a judicial order having finality. If, in a single suit, there can be more than one decree, there can certainly be more than one 'case.' This brings me to the consideration of the expression "finally disposing of the case" under Section 45 and to the definition of, 'a case,' which has defied and will continue to defy legal ingenuity till there is a codified definition of it, which again is perhaps an impossible task. "Case" or "case decided" was first attempted to be defined in the well-known case in Buddhoo Lal v. Mewa Ram ('21) 8 A.I.R. 1921 All. 1. But it is impossible to discover in any one of the judgments a precise definition. The principal judgment of the majority of the Pull Bench was delivered by Piggott J. and at page 5G6 his Lordship thus summed up his opinion:

...the intention of the Legislature will best be carried out by refraining from interference with orders passed by subordinate Courts in the course of the trial of suits....

46. That was a case where the order; which was sought to be revised, was one by which the Munsif of Etawah had repelled the objection of the defendants that the suit was not cognizable by him. It was one of the principal issues, but the case remained, as a result of the decision of that issue, still pending. The question again came up for consideration in Ram Sarup v. Gaya Prasad ('25) 12 A.I.R. 1925 All. 610. In that case, the District Judge of Bareilly had set aside an ex parte decree under Order 9, Rule 13, Civil P.C. Lindsay J. who delivered the principal judgment in the Pull Bench observed at page 68:

It would be unprofitable to discuss the various rulings concerning the meaning of the word 'case' as used in Section 115. No definition of the word is to be found in the Code of Civil Procedure and probably no exhaustive definition of the word could be given.

The cognate expression "cause" has been denned in England in the Judicature Act of 1873 as 'including any action, suit or other original proceedings between a plaintiff and a defendant, and any criminal proceeding by the Crown, and it seems to me that when an attempt is made by a defendant under Order 9, Rule 13, to assert his right to have the ex parte decree set aside, there is an 'original proceeding' between a plaintiff and a defendant.

47. It will thus appear that the term is so elastic that their Lordships felt themselves unable either to find a definition or to attempt one themselves. The matter again came up in 1931 in Radha Mohan Datt v. Abbas Ali ('31) 18 A.I.R. 1931 All. 294, Sen J. who delivered the Full Bench judgment at page 389 says:

The term 'ease' has not been defined in the Code. It may indeed be doubted if the term is capable of an exhaustive definition.

48. In 1934 a similar difficulty was experienced in defining the term "case" in Gupta & Co. Kirpa Ram Bros ('34) 21 A.I.R. 1934 All. 620 at p. 384 and the difficulty presented itself again in 1936 in Mt. Suraj Pali v. Ariya Pretinidhi Sabha ('36) 23 A.I.R. 1936 All. 686. Indeed, their Lordships of the Judicial Committee have expressed a similar view in Balakrishna Udayar v. Vasudeva Aiyar ('17) 4 A.I.R. 1917 P.C. 71 at p. 269. The above makes it perfectly clear that it is impossible to define either "a case," "any case" or "the case." I can, however, express my view best by quoting Lindsay J., from what he said in Ram Sarup v. Gaya Prasad ('25) 12 A.I.R. 1925 All. 610 that:

Where an attempt is made by a defendant under Order 9, Rule 13 to assert his right to have the ex parte decree set aside, there is an original proceeding between a plaintiff and a defendant.

49. On the analogy of the above, I think it would be correct to hold that when the present appellant requested the Court to set aside the ranking order, whether the request was made by means of an application for a review or an application under Section 151, Civil P.C., it was a request to 'initiating an original proceeding' - may be a sequel to an old proceeding, but a new proceeding all the same. As Kisch J., observed in Lakshmi Narain Rai v. Dip Narain Rai ('33) 20 A.I.R. 1933 All. 350:

Where the order of the Court below disposes o£ the entire matter in controversy at the particular stage of the case, such an order can be made the subject of an application in revision.

50. Can it be said that, with the presentation of the application for review, a fresh chapter, at that particular stage, did not open or, with the dismissal of that application, that chapter did not close? The law- statutory or judge-made - can return one and only one answer, that the chapter did open with the presentation of the application and that it did terminate with the order rejecting that application. The scheme of the U.P. Encumbered Estates Act reveals the intention of the Legislature on this point still more clearly. To begin with, there is Section 9 of the Act, which invites the claims. Sub-clause (b) of Clause (5) specifically uses the word 'decree' when it says "if all the joint-debtors...as may be decreed by the Special Judge." Then we have Section 11 which speaks of the determination of claims and Clause (4) of which definitely says that:

Any order passed by the Special Judge under this section shall be deemed to be a decree of a Civil Court of competent jurisdiction." There is also Section 14, Clause 7 of which speaks of decrees. That they have the full force of a decree is what the sections themselves say. This Court has gone so far as to hold that in an appeal against a decree under Section 14 ad valorem court-fee is payable: vide Jagdish Pratap v. Udai Pratap ('38) 25 A.I.R. 1938 All. 97.

51. It is otiose to multiply instances or to pursue the matter further: it is idle to contend that the order of 1st September 1938 was the only order which amounted to a decree and that there can thereafter be no order, in any subsequent proceeding, which can have that force.

52. The next contention is that an appeal under Section 45, U.P. Encumbered Estates Act, lies only against an order which is passed under the Act and, as the order under appeal was not passed under the Act, but under the Code of Civil Procedure, the present appeal is incompetent. In support of this contention it is urged that the words "under this Act" will govern the words 'decree or order." The learned Counsel would read the section not in the way in which it stands but in a different form. The section, as it is, reads thus: "An appeal against any decision, decree or order of a Special Judge of the first grade under this Act" The learned Counsel will read it as: "An appeal against any decision, decree or order under this Act, of a Special Judge of the first grade...."

53. It is contended that the Legislature could not have emphasised the character of the Judge as a "Special Judge under this Act," inasmuch as it is the Civil Judge, described in these proceedings as a Special Judge, who decides cases even under this Act. There is, it is argued, no special appointment by the Local Government of a Special Judge for doing this special class of work and there is, therefore, no point in emphasising his character "under the Act." My learned brother Braund has discussed the various permutations and combinations of the words of this section. Speaking with the utmost respect it is, to my mind, irrelevant. The intention of the Legislature is clear when it speaks of a Special Judge under this Act. Section 45 is not the only section which speaks of the Judge in these terms. There is also Section 47. It may be that it is the Civil Judge who is entrusted also with cases under this Act. If the Legislature chose to describe him by a different designation, it is not for us to speculate. Nor is it for us to make a departure from the ordinary grammatical meaning unless very special reasons are made out. No serious attempt was really made at the bar to prove why the ordinary grammatical meaning should not be assigned to the expression.

54. There is abundant authority of the English Courts, which condemns a deviation from the ordinary grammatical and natural meaning. To mention just a few. In Hudson v. Parker (1844) 1 Rob. Ecc. 14, it was held that the first and cardinal rule is this:

Is there any plain and evident meaning arising from, the words used, taking them in the ordinary acceptation in conjunction with known rules of Grammar? If there be no difficulty in arriving at a natural meaning in conformity with those principles, there is nothing more to be done, for nothing is more contrary to sound reason or safe principle than to attempt by the exercise of ingenuity to attach to words ii far-fetched meaning contrary to common sense and common perception.

55. That eminent authority Parke J., who later became Baron Parke, has, in King v. Inhabitants of Ditcheat (1829) 109 E.R. 66, observed:

It is ft safe rule of construction not to speculate upon the probable intention but to adhere to the words of an Act of Parliament in the grammatical and natural sense unless it appears certainly and clearly from the context that they were intended to be used in some other sense.

In another case Botheroyd v. Woolley (1835) 1 Gale 66 the matter was put still more strongly: "It is better to adhere to the plain words of the statute than to force constructions." And nothing can be more emphatically pronounced than what was observed in the well-known case in Woodward v. Watts (1853) 2 El. & Bl. 452:

The golden rule in the construction of an Act of Parliament is to put on the words of it their natural and grammatical construction although they may lead to some inconvenience, absurdity or mischief; it being for the Judges to construe Acts of Parliament and not to 'legislate' arid for the Legislature to provide a remedy when one is wanted.

56. It is not necessary to multiply authorities. I am, therefore, clearly of opinion that we must take the section as it is. Not only is there no justification for reading it differently, but, I am of opinion that we shall be failing in our duty if, instead of giving effect to the intention of the Legislature by construing the language as we find in the statute, we try to deduce that intention by a priori reasoning or dubious methods of speculation. An order passed by him under this Act, the Civil Judge will be deemed to pass as a Special Judge; other orders, passed by him in his normal capacity, he will be deemed to pass as a Civil Judge. There is, therefore, a clear line of demarcation between the two capacities even though both the capacities may, as a matter of pure accident reside or vest in a single individual. That the expression "Special Judge" was designedly used by the Legislature with reference to proceedings under this Act, will be borne out by reference to another equally important Act. The Agriculturists' Belief Act was passed to better the lot of the agriculturists. The U.P. Encumbered Estates Act was passed to improve the condition of the landlord. Both were intended to improve the conditions in rural areas. Both belong to the same class of legislation. When the Legislature did not give any particular designation to the Judge functioning under the Agriculturists' Relief Act, but did choose to give one to a Judge in these proceedings, the intention is clear. It is not for us to quarrel with that intention but to loyally carry it into effect. The order under appeal was passed by a Special Judge functioning under this Act. That order has, therefore, all the incidents contemplated by Section 45 of the Act and must be held appealable.

57. I now come to the last question - whether assuming that the order is not appealable under Section 45, is it revisable under Section 46? In the view which I have taken, it is not necessary to deal with this question. I, however, propose to address myself to it only very briefly, as the point was argued at the bar at considerable length. Section 46, U.P. Encumbered Estates Act, differs widely from Section 115, Civil P.C. Most of what I have said, while dealing with the implications of the word 'case', will have bearing upon this question. Section 115, Civil P.C., contemplates an order, not in a pending proceeding; Section 46 contemplates just the reverse. There are two cases, one of this Court, Mohammad Ali v. Bhari Dulhin ('39) 26 A.I.R. 1939 All. 648 and the other of the Chief Court, Hari Ram v. Shyam Bahadur (1941) A.W.R.C.C. (Rev.) 647. With both these cases, I respectfully agree. But they do not offer any solution to the problem which faces us. In the view of the case which I have taken and which permits an appeal, no question of revision arises. In the view which has commended itself to my learned brother, the application is certainly entertainable. There may or may not be a pending proceeding but if the whole of Order 47 has application, there is abundant authority for the proposition that an order rejecting an application for review, though not appealable, is, in some cases, revisable; for instance, Akbar Khan v. Muhammad Ali Khan ('09) 31 All. 610.

58. And lastly, before concluding my judgment, I deem it necessary to discuss the case from yet another point of view, though I may lay myself open to the criticism that I have strayed into considerations not strictly germane, although they are, to my mind, relevant. That the order of 1st September 1938 was a wrong order has not been seriously contested. The appellant was certainly entitled to priority under the Transfer of Property Act. He, at all events, belongs to the same class under Section 16. It was the obvious duty of the learned Special Judge to rectify the error of his predecessor-in-office. To refuse redress to the appellant on the ground that his order is neither appealable, nor revisable, is, in the words of the Marquess of Beading in In re Payment of compensation to civil servants under Article 10 of Agreement for a treaty between Great Britain ('29) 16 A.I.R. P.C. 84, "repugnant to good sense." This case will amply repay study. Its facts though complicated are, as far as necessary, briefly these:

In consequence of the change of Government, effected by the establishment of the Government of the Irish Free State, in pursuance of the articles of agreement, for a treaty between Great Britain and Ireland, a certain compensation, as determined by the Government of the Irish Free State, in accordance with the principles laid down in certain minutes of the British Treasury, and in particular, the minute of 20th March 1922, was payable to those civil servants in the service of the Crown who were, transferred to the Irish Free State after March 1922. The amount of compensation was to be determined within the meaning and true intent of Article 10 of the articles of agreement. Their rights were determined and compensation was awarded to them in accordance with the judgment of the Judicial Committee of the House of Lords by means of a judgment reported in Wigg v. Atterney-General for the Iresh Free State (1927) 1927 A.C. 674. Two of the civil servants complained that the judgment proceeded upon a misapprehension of certain facts, that is, the date of the transfer of the plaintiffs had been wrongly stated. In compliance with the request of the plaintiffs, the matter was referred to the Judicial Committee by an order of His Majesty in Council made under Section 4, Judicial Committee Act, 1833.

59. It is true that there was no appeal against that order, because it was passed by the highest Court of appeal, but very strong grounds were urged even against an attempt to review or reopen the ase; the principal of them was, that an order of His Majesty in Council is entitled to the highest respect and must be treated as final and nothing but "an Act of Parliament could rectify it." Their Lordships rejected this contention by holding that:

(a) The result of these decisions is : (1) that there is no inherent incompetence in ordering a rehearing of a case already decided by the Board, even when a question of a right of property is involved, but (2) that such an indulgence will be granted in very exceptional circumstances only. It is of the nature of an extraordinarium remedium.

(b) To suggest that, if that proposition be made out, this Board is constrained, blindfold, to adhere to a decision based on a material error in fact, appears to be repugnant to good sense, and to attribute to the Board, as a Court of final resort, an impotence which would be deplorable.

60. It has, as I have said, not been disputed that the order under appeal was wrong, obviously wrong, nor can it be pretended that that order can have the same sanctity as the one passed by their Lordships of the Judicial Committee, and it was, therefore, the obvious duty of the learned Special Judge to rectify the error. He failed to do his duty. The learned Special Judge says that the order of 1st September 1938 was appealable. It was, in one sense, appealable but was an appeal really necessary? A person is entitled to appeal against an order if he is genuinely aggrieved by it. The appellant might have been advised and might have entertained an honest belief, I do not wish to express any opinion on this point-that the order really did him no harm. He might have been under a bona fide belief, and again I wish to express no opinion about the legal position, that Section 16, U.P. Encumbered Estates Act, contemplated ranking as between different classes and not as between creditors of the same class inter se, that both he and the respondent belonged to the same class and the mention of one before the other was a pure accident and meant no real difference. This honest belief might have pursued him till the Collector read something into the order which neither he, nor his lawyer could ever read. It was the attitude of the Collector which necessitated the application for review. If the order does, in point of law and fact, prefer the claim of the respondent to that of the appellant, it is not disputed that it was wrong and for this mistake the responsibility must be laid at the door of the Court. There is the high authority of Cairns, L.C. that:

One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court' is used, it does not mean merely the act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case : vide Rogers v. Comptoir d'Escompte de Paris (1871) L.R. 3 P.C. 465.

61. Their Lordships affirmed the above principle in the comparatively recent case in Jai Barham v. Kedar Nath ('22) 9 A.I.R. 1922 P.C. 269. The appellant was confronted with a strange situation. There was an order which, according to his belief or advice, did not constitute an encroachment upon his rights till its mischievous character was exposed by the Collector. He then made an application not merely under Order 47, Rule 1 but also under Section 151, Civil P.C. It was pre-eminently an error which should have been rectified by the learned Special Judge. Even apart from Section 151, he had an inherent power to grant the amendment. That power is too firmly entrenched upon judicial authority, both of this Court and also of their Lordships of the Privy Council vide Debi Baksh Singh v. Habib Shah ('13) 35 All. 331 and Mukand Lal v. Gaya Prasad ('35) 22 A.I.R. 1935 All. 599 to be called in question. The learned Special Judge, to my mind, failed in his duty. If an order of their Lordships of the Privy Council, which has a sanctity all its own, as observed by the Marquess of Beading in the case noted above, can be reviewed or reheard, why cannot the order of 1st September 1938 which can claim no such sanctity, be amended by us and proper justice done? For the respondent to contend that we cannot rectify that error, either in appeal under; Section 45, U.P. Encumbered Estates Act, or by means of a revision under Section 115, Civil P.C., if the whole of Order 47 of that Code has application is to "attribute" to this Court, 'an impotence' which would be "deplorable." I am, therefore, of opinion that the order of the learned Judge is, in the view which I have taken, appealable and is, on the line of reasoning which has found favour with my learned brother, revisable.

62. The order of the Court is that this appeal as an appeal does not lie but ought to be treated as a revision; and accordingly it is ordered in revision that the Order of the learned Special Judge of 29th August 1942, be set aside and the case be sent back to that Court for trial according to law. It will be open to the learned Special Judge to consider the propriety of the order of his predecessor dated 1st September 1938 and pass suitable orders. Costs here and hitherto shall abide the event.