Harries, J.
1. This is a decree-Holders appeal against a decree of the lower Appellate Court modifying the decree of the Court of first instance. The Court of first instance disallowed the judgment-debtor's objection but that order was modified very materially in the decree passed by the lower Appellate Court.
2. The decree-holder on August 23, 1932, obtained a decree for arrears of rent against the judgment-debtors. The arrears of rent covered the years 1338 and 1339 Fasli. The decree-holder attempted on a number of occasions to execute his decree but with no success and finally he applied for ejectment of the judgment-debtors from the holding in question under the provisions of Section 79 of the Agra Tenancy Act. Notice was served upon the judgment-debtors to show cause why they should not be ejected from their holding and to this notice they failed to appear. On January 3, 1933, the matter came before the execution Court and on that date the Assistant Collector of Budaun passed an order ejecting the judgment-debtors from their holding. The judgment-debtors applied for a revision of this order to the Commissioner of the District but he held that he had no jurisdiction to deal with the matter. Consequently on April 1, 1933, the judgment-debtors filed an appeal against; the decree of the Assistant Collector in the Court of the District Judge.
3. This appeal was clearly filed out of time because the period for filing such appeal was 30 days from the date of the decree of the Assistant Collector which was January 3, 1933. The appellants however applied to the District Judge to extend the time for appeal under Section 5 of the Limitation Act and the learned District Judge held that the appellants had sufficient cause for not preferring the appeal within the 30 days allowed to them. They had applied for revision of this order to the Commissioner and although this was not a proper way of proceeding in the matter, it was a mistake which afforded them a reasonable excuse for not preferring the appeal in the Court of the District Judge within the time provided by law. The appellants before me concede that the learned District Judge had jurisdiction to extend' the time and it is not argued that there were no grounds upon which he could properly admit and hear this appeal. Difficult questions of jurisdiction constantly arise in appeals of this nature and a bona fide. mistake such as that committed by the judgment-debtors in this case should not be held to debar them from being heard in the proper tribunal, vis., that of the District Judge.
4. The learned District Judge came to the conclusion that the provisions of the United Provinces Assistance of Tenants Act, 1932, (Act VIII of 1932), applied to the case and consequently set aside the decree for ejectment passed by the Assistant Collector and decreed that the amount of rent due for 1339 Fasli should be paid forthwith and that the arrears for 1338 Fasli should be paid by instalments as provided by the Act. The decree-holder has preferred an appeal to this Court and contends that the United Provinces Assistance of Tenants Act, 1932, has no application whatsoever to this case. The Act does provide for the payment of arrears of rent for the years 1337 and 1338 Fasli by instalments, but it is clear from the terms of Section 2 and 3 of the Act that the power to order payment of arrears of instalments is conferred not upon an execution Court but upon the Court actually hearing the claim for arrears of rent. There can be no doubt that the trial Court can under the provisions of this Act pass a decree for the payment of arrears of rent for these years by instalments. The trial Court in the present case passed no such decree though it could have done so because the decree was actually passed three days after the United Provinces Assistance of Tenants Act, 1932, came into force. This Act received the assent of the Governor of the United Provinces on June 27, 1932, and the Governor-General on August 11, 1932, and was published under Section 81 of the Government of India Act on August 26, 1932. Clearly this Act was in force when the decree for rent in this case was passed as that decree is dated August 23, 1932. That being so the Assistant Collector could have decreed the payment of these arrears of rent by instalments, but he did not do so.
5. It is, however, contended on behalf of the judgment-debtors that the learned District Judge in the appeal which was preferred to him could pass a decree that the arrears should be paid by instalments. It must be remembered that the District Judge was hearing an appeal not against the decree for arrears of rent but against the decree for ejectment by way of execution of the decree for arrears of rent. The appeal before him was an appeal arising out of execution proceedings and in my judgment it is not open to an execution Court to vary decrees which have been passed by Courts of competent jurisdiction. To allow the payment of the decree for arrears of rent by instalments amounted in this case to a variation by the execution Court of the decree passed by the trial Court which dealt with the matter. As the trial Court had not passed a decree for payment of the arrears by instalments the judgment-debtors could have appealed against that decree but they did not do so, end in my view, it is not now open to them in the executions Court to ask for relief which they could have obtained by preferring a regular appeal against the decree of the Court of first instance.
6. It is, however, contended by the judgment-debtors that the District Judge had jurisdiction to pass the order which he did by reason of Section 4 of the United Provinces Assistance of Tenants Act. That section reads as follows:
7. In my judgment Section 4 has no application to the present case because the decree for arrears in question was not a decree 'already passed'. A decree 'already passed' must mean a decree passed before the Act came into force, whereas the present decree was passed three days after the Act came into force. Section 4 in my judgment applies only to decrees for arrears of rent for the years 1337 and 1338 Fasli which were actually passed before the date upon which this Act come into force but which were not executed at the lime the Act or me into force. The decree in question here was passed after the Act came into force and at a time when the trial Court could have ordered the payment of arrears by instalments had it so wished.
The provisions of this Act shall apply to decrees already passed but so far unexecuted for arrears of 1337 and 1338 Falsi, provided that the tenant or thekadar files an application that it be so applied, and along with his application deposits in Court an instalment equal to one-fourth of the sum decreed.
8. In my view there is another fatal objection to the judgment-debtors' contention that Section 4 of the Act applies to this case. In order to claim the benefit of Section 4 the tenant or thekadar must file an application that the Act shall be applied to his case, and with that application, he must deposit in Court an instalment equal to one-fourth of the sum decreed. It is clear from the judgment of the District Judge that no such application or deposit was made in this case. That being so, even if the present decree could be regarded as a decree to which the provision of Section 4 of the Act applied, the judgment-debtors could not claim the benefit of the Act by reason of non-compliance with the essential conditions laid down by that section.
9. For the reasons given above the learned District Judge had no power to pass the decree which he did and that being so his decree must be set aside. In the result, therefore, this appeal is allowed with costs and the decree of the Assistant Collector of Budaun restored. The appellants must be put in possession of the holding forthwith.
10. Leave to appeal under the Letters Patent is asked but is refused.