1940 (12) TMI 30

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....r 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 particular and without prejudice to the generality of the foregoing power, the Provincial Government may make rules: (a) in regard to any matter which is required to be prescribed by this Act; (b) prescribing the form of, and the fees to be paid in respect of, applications under this Act; and (c) for removing any difficulty in giving effect to the provisions of this Act. (3) All the rules made under this section shall be consistent with the provisions of this Act. They shall be published in the Official Gazette and upon such publication shall have effect as if enacted in this Act. 4. Relying on Sub-section (1) and Clause (c) of Sub-section (2) of Section 28 the Provincial Government, by a notification dated the 27th October, 1939, ad....

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.... power to exercise this legislative authority or not, and thereby to confer or to withhold, this important benefit of new rights of appeal, has been given to them by the 26th section of the Act of 1859. If the Legislature has done this, it has done a thing which is very irregular, and which antecedently would seem to be very improbable. It is not reasonable to suppose that in matters affecting the taxation of the subject, the Legislature would abdicate its own functions and delegate to the Barons of the Exchequer the power of determining at their pleasure whether, in certain cases, there should or should not be a right of appeal as 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 Staffor....

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....may make rules for carrying into effect the purpose of this Act. In making a rule providing for appeals the Provincial Government is not making a rule for carrying into effect the purposes of the Act. It is adding something to the Act. The object of the Act is to grant relief to agriculturists by providing machinery for the scaling down of their debts. The Court of first instance decides whether a case falls within or without the Act. If a case falls within the Act the Court must scale down the debt in accordance with the directions embodied in the Act. An order of the Court must be taken to be a correct order unless it is shewn to be wrong by an appellate tribunal which has power to entertain an appeal. Clause (c) of Sub-section (2) does not carry the matter any further. By providing for an appeal the Provincial Government is not removing any difficulty in giving effect to the provisions of the Act. The Courts of first instance are there for the purpose and, as I indicated, their orders must be assumed to be correct. To read either into Sub-section (1) or into Clause (c) of Sub-section (2) a power for the Provincial Government to constitute an appellate tribunal would be to read s....

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....a matter relating to the execution of the decree in any sense. The learned Judges regarded the observations of Pandrang Row and Abdur Rahman, JJ. in Jami Venkatappadu v. Kannepalli Ramamurthi AIR1940Mad131 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 decree is passed, which can only be enforced in execution proceedings separately instituted under the Code of Civil Procedure. If the scaling down wipes out the decretal amount the Court cannot pass an amended decree. It must then declare that the....