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Somasundaram vs Thangaraju on 16 July, 1996

Madras High Court
Somasundaram vs Thangaraju on 16 July, 1996
Equivalent citations: (1997) 2 MLJ 228
Author: Srinivasan


JUDGMENT

Srinivasan, J.

1. A preliminary objection has been raised by the respondent, as to the maintainability of this appeal under Clause 15 of the Letters Patent.

2. The respondent obtained a decree in O.S. No. 192 of 1974 and in execution of the same, brought the properties to sale. Sale was held which was sought to be set aside by the appellant herein by an application under Order 21, Rule 90, Code of Civil Procedure (hereinafter referred to as the Code) read with Section 151 of the Code. The application was dismissed by the Executing Court and on appeal in C.M.A. No. 775 of 1986, a single Judge of this Court affirmed the order of the Executing Court, it is against the said order, the present L.P. Appeal has been filed.

3. An objection is raised by the respondent that the C.M.A. filed in this Court was under Section 104, read with Order 43, Rule 1(j) of the Code and therefore, by virtue of the provision of Section 104(2) of the Code, no further appeal will lie from an order passed in the said appeal. In support of the said contention, reliance is placed on a recent judgment of the Supreme Court in Resham Singh Piyara Singh v. Abdul Sattar . In that case, a suit was filed by the appellant and an interim injunction was sought. The same was granted by the trial court. On appeal to the High Court, a single Judge passed an order and a Letters Patent Appeal was filed against the said order. A Division Bench of the Bombay High Court rejected the appeal, as not maintainable. The order was challenged before the Supreme Court. The Supreme Court affirmed the order of the Bombay High Court and held that Section 104(2) of the Code barred an appeal under Clause 15 of the Letters Patent preferred before the Division Bench. The relevant part of the judgment reads as follows:

It is contended for the petitioner that as per the law laid down by this Court in Shah Babulal Khimji v. Jayaban D. Kania (S.N.), L.P.A., would lie to the Division Bench against the interlocutory order of the single Judge and, therefore, the view of the High Court is not correct in law. We find no force in the contention.

Order 43, Rule 1, C.P.C. provides an appeal from the orders passed tinder Order 39, Rule 1, etc., as stated in Sub-rule (r), which provides as under:

(r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order 39.

Section 104, C.P.C. provides for an appeal from the orders provided in Order 43 save as otherwise expressly provided in the body of this Code or by any law for the time being in force and from no other orders. Sub-section (2) envisages that

(2) No appeal shall lie from any order passed in appeal under this section.

It would, therefore, be clear that when an appeal was filed against the order of the City Civil Court, Bombay to the learned single Judge under Order 43, Rule 1(r) as provided in Sub-section (1) of Section 104 by operation of Sub-section (2) of Section 104 no further appeal shall lie from any order passed in appeal under this Section. In Khimji case (1981) 4 S.C.C. 8 : 94 L.W. 91 (S.N.), the suit was filed on the original side of the High Court and the learned single Judge on the original side passed an interlocutory order. Against the orders of the learned single Judge, though it was an interlocutory order, since the appeal would lie to the Division Bench under the Letters Patent, this Court held that against the interlocutory orders passed by the single Judge, L.P.A would be maintainable. That ratio, therefore, is clearly inapplicable to the facts in this case.

4. Learned Counsel for the appellant however contends that there are judgments of the Supreme Court rendered by larger Benches, taking a contrary view and the judgment cited above need not be followed in view of the earlier decisions by larger Benches. In support of the said contention. Learned Counsel has drawn on attention to the judgments of the Supreme Court in Union of India v. Mohindra Supply Co. , Radhey Shyam v. Shyam Behari Singh , Shah Babulal Khimji v. Jayaban (S.N.), Ramachandra G. Pandit v. Charity Commr. and Baddula Lakshmaiah v. Sri Anjaneya Swami Temple . In addition thereto, learned Counsel also invited our attention to the judgments of Division Benches of this Court in Boopathi Vijayaraghavan Chettiar v. Radha Rukmani Ammal 1984 T.L.N.J. 92 and Rukmani v. H.N. Thirumalai Chettiar A.I.R. 1985 Mad. 283 : 98 L.W. 83. Learned Counsel has also referred to a judgment of the Privy Council in Sabitri Thakurain v. Savi A.I.R. 1921 P.C. 80 : 14 L.W. 362.

5. On the other hand learned Counsel for the respondent has invited our attention to a judgment of the Bombay High Court in Pandey-Mishra & Co. v. Anil Upendra Pitale , in which all the prior rulings of the Supreme Court and those of this Court, referred to above, have been considered and a view has been expressed, which is in accord with the view expressed by the Supreme Court in the judgment in Resham Singh Pyara Singh’s case referred to above, besides the judgment of Supreme Court in Madan Naik v. Hansubala Dei . But we prefer to refer to the above rulings seriatim in the chronological order, instead of the order in which the counsel cited them before us.

6. Which doing so, it will be better to refer to the relevant provisions of law. Clause 15 of the Letters Patent provides that an appeal shall lie to the High Court from the judgment, not being a judgment passed in the exercise of the appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the High Court and not being an order made in the exercise of the revisional jurisdiction. The same clause provides that in the case of judgments passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of the appellate jurisdiction by a court subject to the superintendence of the High Court, an appeal will lie, if the Judge, who passed the judgment declares that the case is a fit one for appeal. Thus, the provision in Clause 15 is to the effect that all judgments of a single Judge of the High Court are appealable, excepting the judgments which are passed in exercise of the appellate jurisdiction against the orders of judgments passed by the Subordinate Courts in the exercise of the appellate jurisdiction. In other words, if a judgment is passed in exercise of the second appellate jurisdiction by a Judge of the High Court, an appeal will lie under Clause 15 only if the said Judge grants a certificate that it is a fit one for appeal.

7. Clause 44 of the Letters Patent provides that all the provisions of the Letters Patent, are subject to the legislative powers of the Indian Legislature, to put it shortly.

8. The Code is an enactment passed by the Indian Legislature. Section 4 there of is the saving clause. It provides that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law, now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

9. Section 104 provides for appeals against certain orders. Under Clause (1) thereof, an appeal shall lie from the orders specified therein and save as otherwise expressly provided in the body of the Code or by many law for the time being in force, and from no other orders. Under that clause, it is only these orders, which are specified therein that are appealable under the provisions of that section. If there are orders under other laws and appealable under such provisions of law, they are to be considered under such provisions. But Sub-section (2) of Section 104 contains an express provision that no appeal shall lie from any order passed in appeal under this section. That means that if an order is passed in an appeal arising under Section 104(1), then, there shall not be any further appeal against such order. Clause (i) of Section 104(1) provides for an appeal against any order made under rules from which an appeal is expressly allowed by rules. The said rules are found in the first Schedule to the Code. Order 43 is one such provision. Under that order, Section 104(1), Clause (j) provides that an order under Rule 72 or Rule 92 of Order 21 setting aside or refusing to set aside a sale, is one from which an appeal shall lie under the provisions of Section 104. It is by virtue of the aforesaid provision, the civil miscellaneous appeal in this case was filed by the appellant herein. When the C.M.A. is disposed of by a learned Judge of this Court, the order passed is undoubtedly an order passed in appeal within the meaning of Sub-section (2) of Section 104. Therefore, by virtue of the said sub-section, no further appeal shall lie from that order.

10. The contention that is put before us is that Clause 15 of the Letters Patent is a special law saved by the provisions of Section 4 of the Code and it is not affected by the provisions of Sub-section (2) of Section 104 of the Code. This contention is unsustainable not only because of the language used in Section 4 and Section 104 of the Code, but also because of the rulings of the Supreme Court rendered time and again, to which we will make a reference shortly. We have already referred to the provisions of Section 4 of the Code. That section saves only the provisions, in the absence of any specific provision to the contrary. Section 104(2) is a specific provision to the contrary, within the meaning of Section 4. Hence, the provisions of Section 104(2) will prevail over Clause 15 of the Letters Patent, by virtue of the provisions of Clause 44 of the Letters Patent. We have already noticed that under Clause 44 the provisions of Letters Patent are made subject to any law, which may be enacted by the Indian Legislature. The Code being a law enacted by the Indian Legislature, Section 104(2) will prevail over the provisions of Clause 15 of the Letters Patent.

11. Now turning to the various rulings cited before us, the earliest is that of the Privy Council in Sabitri Thakaratin v. Savi A.I.R. 1921 P.C. 80 : 14 L.W. 362. The only question, which was considered by the Privy Council was whether the provisions of Order 41, Rule 10(1) of the Code would apply to an appeal preferred under Clause 15 of the Letters Patent. The Judicial Committee had no occasion to consider the question, which has now arisen before us in this case. While holding that the provisions of Order 41, Rule 10(1) of the Code will apply to an appeal under Clause 15 of the Letters Patent, the Judicial Committee held that Letters Patent Appeal for non-compliance with an order passed under Order 41, Rule 10 of the Code was justified.

12. The Next decision in chronology is that of the Supreme Court in Union of India v. The Mohindra Supply Co. . The question which arose before the Court was, whether an appeal would lie under Clause 10 of the Letters Patent of the Punjab High Court, corresponding to Clause 15 of the Letters Patent, applicable to this Court, against an order passed by a single Judge in an appeal under Section 39(1) of the Arbitration Act. Section 35(2) of the Arbitration Act prohibits a second appeal from an order passed in an appeal under Section 39(1), except an appeal to the Supreme Court. It was contended that a Letters Patent Appeal could not be treated as second appeal within the meaning of Clause 10 of the Letters Patent of the Punjab High Court. That contention was negatived. The Supreme Court held that the expression ‘second appeal’ used in Section 39 of the Arbitration Act did not mean an appeal under Section 100 of the Code and meant only a further appeal from an order passed in an appeal under Section 39(1) of the Arbitration Act. Considering the provisions of Section 39 of the Arbitration Act, the court held that the Legislature had plainly depressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders and the right of appeal against other orders was expressly taken away. In that judgment, the Supreme Court traced the history of the provisions of the Arbitration Act and pointed out that prior to 1940. The relevant provisions formed part of the Code. Referring to the passing of the Arbitration Act, the Supreme Court, said:

Prior to 1940, the law relating to a contractual arbitration (except in so far ask to was dealt with by the Arbitration Act of 1899) was contained in the Code of Civil Procedure and certain orders passed by courts in the course of arbitration proceedings were made appealable under the Code of 1877 by Section 588 and in the Code of 1908 by Section 104. In 1940, the legislature enacted Act X of 1940, repealing Schedule 2 and Section 104(1), Clauses (a) to (f) of the Code of Civil Procedure, 1908, and the arbitration proceedings only from certain orders and from no there and the right to file appeals from appellate orders was expressly take away by Sub-section (2) and the clause in Section 104 of the Code of 1908 which preserved the special jurisdiction under any other law was not incorporated in Section 39. The Section was enacted in a form which was absolute and not subject to any exceptions. It is true that under the Code of 1908, an appeal did lie under the Letters Patent from an order passed by a single Judge of a Chartered High Court in arbitration proceedings even if the order was passed in exercise of appellate jurisdiction, but that was so, because, the power of the court to hear appeals under a Special law for the time being in operation was expressly preserved.

13. It is evident from the said passage that the Supreme Court did not hold that an appeal would lie under Clause 15 of the Letters Patent, irrespective of the provisions contained in Section 104(2) of the Code. On the other hand, the Supreme Court recognised the position that a legislative enactment passed by the Indian Legislature would prevail over the provisions of Letters Patent.

14. In Radhey Shyam v. Shyam Behari Singh , on which strong reliance is placed by learned Counsel for the appellant, an order was made in a proceeding under Order 21, Rule 90 of the Code by a Subordinate Court. An appeal was fled in the High Court against the said order. A single Judge of that Court allowed the appeal and set aside the auction sale. Aggrieved by the said order, the respondent therein preferred a Letters Patent Appeal under Clause 10 of the Letters Patent of the Allahabad High Court. A contention was raised before the Division Bench that the appeal was not maintainable. Rejecting that contention, the Division Bench held that the order of the single Judge amounted to a judgment within the meaning of Clause 10 of the Letters Patent and proceeded to dispose of the appeal on merits. The order of the single Judge was reversed and the sale was upheld. It was that judgment, which was challenged before the Supreme Court. The only question which was raised and considered by the Supreme Court was whether an order passed by a Court in a proceeding arising under Order 21, Rule 90 of the Code would amount to a Judgment within the meaning of Clause 10 of the Letters Patent of the Allahabad High Court. The question was answered in the affirmative and the Supreme Court dismissed the appeal before it on merits. The question whether Section 104(2) of the Code barred such a Letters Patent Appeal, was not at all raised in that case and the court had no occasion to consider the same.

15. However, the question was considered and decided in Shah Babulal Khimji v. Jayaben D. Kania (S.N.). The appeal before the Supreme Court was directed against an order of a Division Bench of the Bombay High Court, by which the appeal filed by the appellant therein against the order of the trial judge was dismissed on the ground that the appeal was not maintainable as the order impugned was not a judgment within the meaning of Clause 15 of the Letters Patent of that High Court corresponding to Clause 15 of the Letters Patent of this Court. Before considering the question as to what orders will amount to a judgment within the meaning of the said Clause. The Supreme Court considered the provisions of Clause 15 of the Letters Patent and observed as follows:

A perusal of the Letters Patent would clearly reveal two essential incidents (1) that an appeal shall lie against any order passed by the trial Judge to a larger Bench of the same High Court, and (2) that where the trial Judge decides an appeal against a judgment or decree passed by the district courts in the mofussil, a further appeal shall lie only where the Judge concerned declares it to be a fit one for appeal to a Division Bench. Thus, the special law, viz., the Letters Patent, contemplates only these two kinds of appeals and no other. There is, therefor, no warrant for accepting the argument of the respondent that if Order 43, Rule 1 applies then a further appeal would also lie against the appellate order of the trial Judge to a Division Bench. As this is neither contemplated not borne out of the provisions of the Letters Patent extracted above the contention of the respondent on this score must be overruled.

It is seen from the above passage that the pronouncement of the Supreme Court was categories in laying down that no appeal was available against an appellate order of a single Judge to a Division Bench under Clause 15 of the Letters Patent. The Court proceeded to consider the various types of orders, which could be held to be a ‘judgment’ within the meaning of Clause 15 of the Letters Patent. It is unnecessary for us to refer to that part of the judgment herein.

16. In that judgment, the Court referred to the decision in Radhey Shyam’s case and observed that the only point, which emerged from that decision was that whenever a trial Judge decided a controversy, which affected the valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent. Impliedly, the Bench took note of the fact that in the earlier judgment in Radhey Shyam’s case , the court had no occasion to consider the maintainability of the appeal under Section 104(2) of the Code.

17. In Madan Naik v. Mst. Hansubhyala Devi , the Court held that no appeal would lie under Letters Patent against a decision rendered by the High Court in an appeal from order under Order 43, Rule 1 of the Code.

18. In Boopathi Vijayaraghavan v. Radha Rukmani Ammal 1984 T.N.L.J. 92, a Division Bench of this Court considered the question whether an appeal would lie under Clause 15 of the Letters Patent against an order passed in an appeal by a single Judge, which was in turn against an order refusing to set aside an ex parte order. An objection was raised before the Division Bench that Section 104(2) barred such an appeal under Clause 15 of the Letters Patent, reliance was placed on the judgment of the Supreme Court in Shah Babulal Khimji’s case (S.N.). The opposite side relied on the Judgment of the Supreme Court in the Mohindra Supply case . The following sentence in the passage extracted by us cardlier, was relied upon by the appellant before the Division Bench.

It is true that under Code of 1908, an appeal did lie under the Letter Patent from an order passed by a single Judge of a Chartered High Court in arbitration proceedings even if the order was passed in exercise of appellate jurisdiction, but that was so, because, the power of the court to hear appeals under a special law for the time being in operation was expressly preserved.

It was argued that the effect of the above sentence was to hold that an appeal under Clause 15 of the Letters Patent was maintainable, even against an order passed in exercise of the appellate jurisdiction. The Division Bench expressed the opinion that the judgment in Shah Babulal Khimji’s case , was that of a Three Judge Bench and judgment in The Mohindra Supply Co’s case , was that of a Four-Judge Bench and therefore, the judgment of Four-Judge Bench should be preferred to that of a Three-Judge Bench. With great respect to the Division Bench, we are obliged to point out that the view expressed by the Division Bench is not correct. There was no conflict whatever between the judgments of the Supreme Court in Shah Babulal Khimji’s case , and The Mohindra Supply Co’s case . The passage extracted by us earlier from the earlier judgment of the Supreme Court, will clearly show that the Supreme Court did not intend to lay down that Clause 15 of the Letters Patent would prevail over Section 104(2) of the Code. In both the cases, the Supreme Court expressed the opinion that there would be no appeal under Clause 15 of the Letters Patent against an appellate order of a Judge of the High Court. It is very unfortunate that this aspect of the matter had not been brought to the notice of the matter had not been brought to the notice of the Division Bench in that case.

19. In Rukmani v. H.N. Thirumalai Chettiar , another Division Bench of this Court chose to follow the ruling in the earlier Division Bench in Boopathi Vijayaraghavan v. Radha Rukmani Ammal 1984 T.N.L.J. 92. In that judgment, there was no consideration of the question in detail, They preferred to simply follow the earlier ruling without applying their mind.

20. In Ramachandra G. Pandit v. Charity Commr. , the City Civil Court, Ahmedabad, exercised jurisdiction under Section 72 of the Bombay Public Trusts Act and passed an order, which was appealed public against by the party concerned. The appeal was heard by a single Judge of the Gujarat High Court and dismissed. A Letters Patent Appeal was filed against the said Judgment under Clause 15 of the Letters Patent. The Division Bench dismissed the appeal as not maintainable, since the requisite certificate under Clause 15 of the Letters Patent, was not obtained by the appellant. The judgment of the Division Bench was questioned before the Supreme Court. The Supreme Court upheld that Judgment of the Division Bench and dismissed the appeal. While doing so, the Supreme Court pointed out that the City Civil Court while exercising its power under Section 72 of the Bombay Trusts Act, was really exercising an appellate jurisdiction over an order passed by the Deputy Charity Commissioner though the section used only the expression ‘application’. In that view, the Supreme Court held that when the matter was decided by a judge of High Court, it was in exercise of the second appellate jurisdiction, though reliance was placed by learned Counsel on the same.

21. In Pandey Mishra v. Antil Upendra Pitale , a Division Bench considered the earlier rulings of this Court as well as the Supreme Court, referred to above, and held that an appeal under Clause 15 of the Letters Patent, against an order passed by a Judge of that Court in an appeal arising out of an order passed under Order 39, Rules 1 and 2, of the Code, was not maintainable. Referring to the judgments of this Court in Boopathi Vijayaraghavan’s case 1984 T.N.L.J. 92 and Rukmani v. Thirumalai Chettiar , the Division Bench said:

The Division Bench of the Madras High Court has declined to follow the Supreme Court decision in the case of Shah Babulal Khimji v. Jayaben A.I.R. 1981 S.C. 786 : 94 L.W. 91 (S.N.) upon the view that the earlier Supreme Court decision in the case of Union of India v. Mohindra Supply Co. being by a larger bench ought to be preferred. A later decision of the Madras High Court in the case of Rukmani v. H.N. Thirumalai Chettiar without practically giving any independent reasons, had preferred to follow the earlier decision of the Madras High Court in the Letters Patent Appeal mentioned herein above. With respect, we are unable to follow the aforesaid two decisions of the Madras High Court not only because of the contrary view consistently taken by this Court on the question of maintainability of appeals under Clause 15 of the Letters Patent against orders passed in appeals under Section 104(1) of the Code, but also because there is really no conflict of views between the earlier and the later Supreme Court decisions.

In our opinion, the view expressed by the Division Bench of the Bombay High Court is in accordance with the rulings of the Supreme Court and we are entirely in agreement therewith.

22. The above discussion will show that the latest ruling of the Supreme Court in Resham Singh Pyara Singh v. Abdul Sattar , is in no way different from the rulings rendered by the Supreme Court in the earlier judgments and there is no conflict whatever with any or the earlier judgments by a larger Bench of that court. Hence, the contention of learned Counsel that the judgment of two Judge Bench now rendered runs counter to the Judgment rendered by it by larger Bunch in the earlier case, cannot be accepted and there is no substance.

23. Learned Counsel for the appellant referred to the decision of the Supreme Court in Baddula Lakshmaiah v. Sri Anjaneya Swami Temple . In that case, a suit for possession and recovery of mesne profits filed by the respondent before the Supreme Court, was dismissed by the trial Court. On appeal, a single Judge of the High Court affirmed the decision of the trial court. That was challenged by an appeal under the Letters Patent before a Division Bench of the High Court, which after considering the entire evidence on record, upheld the claim of plaintiff and granted a decree in favour of the plaintiff. The aggrieved defendant filed an appeal before the Supreme Court. The contention was that a finding of fact recorded by a single Judge of the High Court was set aside by the Bench and it had no jurisdiction to do so. The Division Bench negatived that contention and held that the Letters Patent Bench sat as a court of correction and it could pass judgments on the basis of appreciation of evidence on the facts of the case. The Court observed:

In such appellate jurisdiction, the High Court exercised the powers of a court of error. So understood, the appellate power under the Letters patent is quite distinct in contrast to what is ordinarily understood in procedural language.

24. There was no question before the Supreme Court in that case as to whether Section 104(2) of the Code prevailed over Clause 15 of the Letters Patent. It is to be noted that the Letters Patent Appeal in that case was against a decree passed in a first appeal by a single Judge. Hence, that ruling will have no application in the present case.

25. Learned Counsel for the appellant contends that only if the order of the single Judge of this Court is in exercise of second appellate jurisdiction, no further appeal would lie under Clause 15 of the Letters Patent and if an order is in exercise of the first appellate jurisdiction, a further appeal would lie under Clause 15 of the Letters Patent. In support of such a contention, our attention is drawn to Section 100-A of the Code. That provision was introduced in the Code in 1976 by Amending Act 104 of 1976, where by any appeal under Letters Patent against a judgment in a second appeal was barred, it must be remembered that under Clause 15 of the Letters Patent, a provision is made for filing an appeal thereunder even against a second appellate Judgment, provided the Judge, who rendered the judgment, grants a certificate that it is a fit one for appeal. It is to prevent such a Letters Patent Appeal being filed, Section 100-A was introduced in the Code. That provision has no relevance while we consider the provisions of Section 104(2) of the Code. Sub-section (2) of Section 104 has already been in the Code even before the Amending Act, 1976 was enacted. The said section clearly barred any appeal against an order passed in an appeal under Section 104(1) of the Code.

26. In the result, the preliminary objection raised by the respondent is upheld. This Letters Patent Appeal is not maintainable because of the provisions of Section 104(2) of the Code. Consequently, the appeal is dismissed. There will, however, be no order as to costs.

27. When we concluded the above judgment, learned Counsel for the appellant has brought to our notice that when the Letters’ Patent Appeal was admitted, the Division Bench passed an order in C.M.P. No. 17000 of 1992, which was a petition for stay of all further proceedings in execution, granting stay subject to the appellant depositing the entire decretal amount to the credit of the L.P.A. by the next day. It is now represented that the entire amount, viz., Rs. 55,000 was deposited pursuant thereto. Now that, we have dismissed the appeal, the appellant is permitted to withdraw the said amount, from the court deposit, It is needless to point out that the executing court shall proceed to confirm the sale and it is open to the decree holder auction; purchaser to take further steps pursuant thereto. The order of stay granted in C.M.P. No. 17000 of 1992 shall stand vacated.

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