The main legal point established in the judgment is that the Provincial Government did not have the authority to make rules providing for appeals under the Madras Agriculturists Relief Act, and that an order under Section 19 of the Act is not appealable under Section 47 of the Civil Procedure Code.

1. Three questions arising out of the Madras Agriculturists Relief Act (IV of 1938) have been referred for decision by a Full Bench and this Bench has been constituted for the purpose. The questions read as follows:

(1) When a statutory rule giving a right of appeal is promulgated after a final order has been passed, will an appeal lie under that rule against that?order?

(2) Is Rule 8 of the rules framed under Madras Act IV of 1938 ultra vires? If so,

(3) Is the decision in Pakkiri Muhammad Tharaganar v. U.T. Syed Sahib AIR1940Mad418 , right in holding 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 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, added the following rule to those already framed:

(8) Appeals shall lie from any of the following orders passed by a Court under the Act, namely :--*

(a) an order under Section 18(1) amending or refusing to amend a decree;

(b) an order under Section 19 amending or refusing to amend a decree or. entering or refusing to enter satisfaction in respect of a decree;

(c) an order under Section 20 staying or refusing to stay proceedings in execution of a decree;

(d) an order under Section 22 directing or refusing to direct the refund of any sum realised in execution of a decree;

(e) an order under Section 23 setting aside or refusing to set aside any sale or foreclosure of immovable property; and

(f) an order under Section 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 Queens Remembrancers Act, 1859, the Barons of the Court of Exchequer were given authority to make rules with regard to the process, practice, and mode of pleading in revenue cases in their Court. By virtue of this section the Barons of the Exchequer made rules in which they purported to grant an appeal to the Exchequer Chamber and to the House of Lords. It was held by the House of Lords that the section did not authorize them to do this. Lord West-bury, L.C., in the course of his judgment in that case said:

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