TMI Blog1940 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... that an order under Section 19 of the Madras Act IV of 1938 is not appealable as falling under Section 47 of the Civil Procedure Code? 2. It will be convenient to take the second question first, because if it is answered in the affirmative the first question will not call for an answer. 3. The Act itself,, does not directly provide for an appeal against an order passed in exercise of jurisdiction conferred by the Act, but the Provincial Government has assumed that Section 28, which confers upon it power to make rules under the Act, is sufficiently widely drawn to enable it to provide for appeals, Section 28 reads as follows: (1) The Provincial Government may make rules for carrying into effect the purposes of this Act. (2) In pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 directing or refusing to direct the repayment of any purchase money realized in execution of a decree; as if the order related to the execution, discharge or Satisfaction of the decree within the meaning of Section 47 of the Code of 'Civil Procedure, 1908. 5. Before discussing the nature of the provisions to be found in Sub-section (1) and Clause (c) of Sub-section (2) of Section 28 it will be advantageous to refer to certain of the cases in which the governing principle that an appeal does not lie as of right, but must be conferred by express enactment, has been applied. The first of the cases which I have in mind is that of the Attorney-General v. Sillem (1864) 10 H.L.C. 704 : 11 E.R. 1200. By Section 26 of the Queen's Remem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the subject and the Crown. 6. In Cousins v. Lombard Deposit Bank (1876) 1 Ex. Dn. 404, the question was whether the Courts of Appeal from Inferior Courts was empowered by Section 6 of the County Courts Act, 1875, to hear an appeal from a decision of a County Court upon a question of fact arising in a suit brought within its jurisdiction as a Court of common law. Grove, J., observed that if the Legislature had intended to allow an appeal on such a question clear language would have been employed. In Sandbank Charity Trustees v. North Staffordshire Railway Co. (1887) 3 Q.B.D.1 Bramwell, L.J., in considering the question whether the Court had jurisdiction over the Master's taxation on a motion to review, answered it in the nega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ramwell, L.J., in Sandbank Charity Trustees v. The North Staffordshire. Railway Co. (1877) 3 Q B.D. 1 and said that the right of appeal could not be implied. 8. In view of these observations it is manifest that what we have to consider is whether there is anything in Section 28 of the Madras Agriculturists' Relief Act?, which can reasonably be read as conferring authority on the Provincial Government to make rules providing for appeals from orders passed under the Act. Only Sub-section (1) and Clause (c) of Sub-section (2) are relied upon in support of the contention that Rule 8 is intra vires the powers of the Provincial Government. Sub-S (l) merely says that the Provincial Government may make rules for carrying into effect the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e result of a conflict in the decisions of this Court. In In re Subbarayudu (1939) 2 MLJ 609 , Burn and Stodart, JJ., held that an order passed on an application filed under Section 19 of the Madras Agriculturists' Relief Act while no proceedings in execution are pending is not appealable. In the opinion of the learned Judges it could not be considered to be a question under Section 47 of the Code of Civil Procedure in the absence of execution proceedings. Section 19 provides that where before the commencement of the Act, a Court has passed a decree for the repayment of a debt, it shall, on the application of a judgment-debtor who is an agriculturist or in respect of a Hindu joint family debt, on the application of any member of the fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0Mad131 as being merely an obiter dictum which it was. 10. I have no hesitation in preferring the view expressed in Pakkiri Muhammad Tharaganar v. Syed Sahib AIR1940Mad418 on this question to that expressed in Jami Venkatapadu v. Kannepalli Ramamurthi AIR1940Mad131 . When dealing with applications under Section 19 of the Madras Agriculturists' Relief Act the Court is not acting in execution. Its function is to apply the provisions of the Act to decrees against persons who are entitled to relief under the Act. If relief is applied for and the Court considers that the applicant is entitled to have the provisions of the Act applied the Court must apply them. If the scaling down does not wipe out the decretal amount then an amended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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