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Pandy Walad Dagadu Mahar and anr. Vs. Jamnadas Chotumal Marwadi - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1923Bom218; 76Ind.Cas.317
AppellantPandy Walad Dagadu Mahar and anr.
RespondentJamnadas Chotumal Marwadi
Excerpt:
letters patent (bom.), clause 36, application of - letters patent appeal--difference of opinion--procedure limitation act (ix of 1908), section 14(2), schedule i, article 182(5)--section 14(2), scope of--partially wrong proceedings, whether protected--application for slay of execution proceedings, whether step-in-aid of execution. - - in computing the period of limitation p(sic) escribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith, in a court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it......marten, j.1. this is an appeal under the letters patent from the order of mr. justice shah, dated 13th december 1921, dismissing the defendants' appeal against the order of the district judge of poona who directed the subordinate judge of vadgaon to proceed with the execution of the decree under darkhast. no. 29 of 1919.2. the question is one of limitation and concerns, primarily, section 14, sub-section (2) and article 182(5) of the indian limitation act. to explain it, i will state shortly the material facts. the suit was an ejectment suit brought in 1906, and on the 27th november 1907 the plaintiff obtained a decree for possession in the vadgaon court. i understand from counsel that the plaintiff has now recovered possession of all the suit land except a particular cottage, and that.....
Judgment:

Marten, J.

1. This is an appeal under the Letters Patent from the order of Mr. Justice Shah, dated 13th December 1921, dismissing the defendants' appeal against the order of the District Judge of Poona who directed the Subordinate Judge of Vadgaon to proceed with the execution of the decree under Darkhast. No. 29 of 1919.

2. The question is one of limitation and concerns, primarily, Section 14, Sub-section (2) and Article 182(5) of the Indian Limitation Act. To explain it, I will state shortly the material facts. The suit was an ejectment suit brought in 1906, and on the 27th November 1907 the plaintiff obtained a decree for possession in the Vadgaon Court. I understand from Counsel that the plaintiff has now recovered possession of all the suit land except a particular cottage, and that the present Darkhast relates only to that cottage. Be that as it may, there have been numerous Darkhasts since the original decree, but it is unnecessary to mention them all. It is common ground that the present Darkhast, No. 29 of 1919, is in time if another Darkhast of 7th June 1916 (No. 411 of 1916) was itself in time. This 1916 Darkhast in its turn depends upon whether the time occupied over certain proceedings under an earlier Darkhast of 1912 (No. 284 of 1912) can be deducted under Section 14 (2). That Darkhast was admitted on 10th April 1912, so that three years from that date would expire in April 1915, and consequently, unless some exemption can be claimed, the Darkhast of 1916 would be out of time. The plaintiff contends that he is entitled to that exemption under Section 14 (2) of the Indian Limitation Act, and this is how he makes out his claim.

3. It appears that the two spearate Courts of Poona and Vadgaon have a common Judge, that is to say, from the 1st to the 20th of each month the Judge sits at Haveli, Poona; and, from 21st to 25th he sits at Vadgaon, and from the 25th to 30th of the month he sits at Lonavli which is also a part of the Vadgaon Court. The plaintiff filed his Darkhast No. 284 of 1912 on the 10th April 1912. He filed it at Vadgaon quite correctly, but as the Judge was then sitting at Haveli, the officials, apparently, sent the papers to the Judge at Haveli, and he, on the 11th April 1912, gave a notice to the defendants returnable on the 14th or 15th April 1912 in the Haveli Court. The defendants did not appear, and on the 15th April the Judge sitting in the Haveli Court made the warrant for possession absolute. Defendants appealed, and on the 26th February 1913 this order was set aside on the ground that the Judge had no jurisdiction to direct the defendants to appear in the Haveli Court, nor to make the order against them in that Court. It was accordingly directed that the Court of first instance should take up the Darkhast at the point where it was when the order for issuing the warrant of possession was passed. That means, I take it, that the proceedings as from the 14th or 15th of April 1912 were in effect set aside, but as the Darkhast itself was in order, the Court was to proceed on it. The plaintiff appealed to the High Court, but on 3rd February 1915 his appeal was dismissed. Counsel states that on 29th June 1915 the Darkhast was brought on again, that the plaintiff was present but as the Judge was away the proceedings were adjourned to the next day. The plaintiff this time was not present in Court and accordingly the Darkhast was struck off. The next Darkhast he filed. was, I have already said, on the 7th June 1916 and the question is; was it in time?

4. Turning to the Limitation Act, Section 14(2) runs as follows.

In computing the period of limitation p(sic) escribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith, in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

5. Then under Article 182(5), the period of limitation, (namely three years) begins to run from 'the date of applying in accordance with law to the proper Court for execution, or to take some step-in-aid of execution, of the decree or order.' Now, it is not contended by either party that the 1912 Darkhast was not filed in the proper Court. It was filed at Vadgaon and Vadgaon was the proper Court. But it is said that the subsequent proceedings between 15th April 1912 and 3rd February 1915 ought to be excluded, because, within the meaning of Section 14(2) the plaintiff was prosecuting a proceeding in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it, viz., the Court at Haveli (Poona).

6. Defendants' first answer to this contention is that the 1912 Darkhast was not prosecuted in good faith having regard to the definition of 'good faith' in Section 2(7) of the Act. The definition runs thus.

2. In this Act, unless there is anything repugnant in the subject or context,--(7) 'good faith; nothing shall be deemed to be done in good faith which is not done with due care and attention.

7. It is said that the plaintiff showed a want of due care and attention in prosecuting any orders obtained in the Haveli Court.

8. In my opinion there is no substance in this contention. The plaintiff obtained a decision of the Court in his favour and under Explanation II to Section 14 in resisting the defendant's appeal from that order he was to be deemed to be prosecuting a proceeding. The order made by the Court of the first instance may have been a wrong order, as indeed it was eventually held to be,--but it cannot, I think, be said that it was mane without due care or attention. Nor can the plaintiff be penalised for having obtained it, nor for having endeavored to support it, apart of course from any deliberate misstatement of facts to the Court, which it is not suggested, occurred in the present case.

9. The next point is of much greater difficulty, for it is one which found favour with the Judge of first instance and is the main point argued on this appeal. That point is, that Section 14(2) only applies to 'another civil proceeding', and that the 1912 Darkhast was not ''another civil proceeding' because it was instituted in the right Court, and that time began to run under Article 185 (5) from its institution. It is further argued that the plaintiff cannot be put in any better position by having taken a wrong proceeding than if he had taken a right proceeding, and that, even if the 1912 Darkhast had been prosecuted throughout in the right Court, time would have expired in 1915 unless some effective order had been made on that Darkhast in the meanwhile. But, in my opinion, Section 14(2) is intended to protect a party from time running against him during the pendency of a bona fide proceeding which may eventually prove abortive by reason of want of jurisdiction or some similar cause. This Sub-section was added by the 1908 Act, but even before that amendment, the general principle was recognised by the Courts. Hira Lal v. Badri Das 2 A. 792 : 7 I.A. 167 : 6 C.L.R. 561 : 4 Sar. P C.J. 157 : 4 I. J. 426 : 3 S P.C.J. 761 : 1 I D. 1028, was a decision of the Privy Council on Section 20 of the Act of 1859 which corresponds to Section 14 (1) of the present Act. There the head note runs:--'A proceeding to enforce a decree taken bona fide and with due diligence before a Judge whom the party, bona fide, though erroneously, believes to have jurisdiction, is a proceeding within the meaning of Section 20, Act XIV of 1859; whether the Judge actually decides that he has jurisdiction, or supposing himself to have jurisdiction acts accordingly.' And, with reference to Section 14 of the Act, their Lordships observed:--'It was, therefore, the object of the Legislature, at least with regard to the limitation for the commencemet of a suit, to exclude the time during which a party to the suit may have been litigating bona fide and with due diligence before a Judge whom he may suppose to have had jurisdiction, but who yet may not have had Jurisdiction.'

10. Accordingly, in the present case, the defendant conceded that if the. 1912 Darkhast had been presented originally to the wrong Court, for instance, to the Haveli Court, the time occupied in proceeding with that wrong Darkhast ought to be allowed to the plaintiff. But on principle, I see no reason why the Legislature should not also protect proceedings which are not wholly void but which are partly void as was the case with the 1912 Darkhast, Here the 1912 Darkhast was presented in the right Court but was almost immediately transferred to the wrong Court and prosecuted there or on appeal for nearly three years. The injury to be guarded against is almost, exactly the same in each case. Nor in principle is it a sufficient answer to say that the plaintiff cannot be better off by having taken a wrong proceeding than if he had originally taken the right one. The Act clearly says that he is to be better off to this extent, namely, that the time taken over a proceeding which is wholly wrong is to be deducted. But why should not the greater include the less, and thus protect partially wrong proceedings as well as wholly wrong proceedings. The basis of the desire, of the Legislature is, I take it, not to punish litigants unduly for mistakes of procedure whether those mistakes are made by the Court or the litigant, for every practitioner knows how easy it is to make mistake in procedure having regard to the bewildering mass of rules on the subject, and to each Judge having to some extent his own views as to minor matters of practice. And it must be remembered that the 1912 Darkhast originally resulted in a warrant for possession being ordered. If that order had been valid, no subsequent Darkh.st would have been necessary. It is, therefore, hardly fair to compare the 1912 Darkhast with hypothetical proceedings which result in no effective order to an applicant.

10. Nor, I think, does the express wording of the Act, namely, the words 'another civil proceeding' prevent a more liberal construction of the Act being adopted. We have to consider by what date the 1919 Darkhast must have been presented. Under Article 182 (5), the three years' period ran from the 12th April 1916. But in applying that period of limitation, the time during which the applicant prosecuted with due diligence another proceeding, viz., the 1912 Darkhast in a Court unable to entertain it may be excluded under Section 14 (2). In other words, the period of limitation which we have to compute is that prescribed for the 1916 Darkhast and not for that of the 1912 Darkhast. Accordingly, 'another civil proceeding' under Section 14 (2,) is the 1912 Darkhast or rather so much of it as consisted of proceedings in excess of the jurisdiction of the Court. If in Section 14 (2) the words 'the 1916 Darkhast, be substituted for 'any application' and the words 'the 1912 Darkhast' for 'another civil proceeding' and 'such proceeding' what I am endeavouring to explain will, I think, be made clear. In the view I take, it is accordingly immaterial that the period of three years in question happens to date from the 1912 Darkhast. It is merely a period which has commenced to run, and apart from actual dates it would make no difference in principle if the period had begun to run from the date of the decree under Article 182 (1). This is, of course, on. The assumption which has not been contested in this case that each separate Darkhast is a separate civil proceeding within the meaning of Section 14(2).

11. In the result, therefore, I agree with Mr. Justice Shah, in thinking that the 1916 Darkhast, and, consequently the 1919 Darkhast, were both brought in time.

12. A further point was taken on behalf of the plaintiff that certain applications by him for a stay of proceedings pending the appeal from the order of 26th February 1913 amounted to a step-in-aid of execution of the decree within the meaning of Article 182 (5), and that time ought, therefore, to be calculated from the date of such applications. It appears that on 20th July 1913 the plaintiff applied to the Court of execution that as an appeal had been filed against the order of 26th February 1913, the Darkhast proceedings should be stayed and that on the 16th December 1913 an order for stay was made accordingly. But I feel a difficulty in seeing how a stay of proceedings granted at the instance of the plaintiff can be said to be a step-in-aid of execution. A mere adjournment has been held not to be such a step-in-aid of execution, [see kartick Nath Pandey v. Juggernath Ram Marwart 27 C. 285 : 14 I. D 188] although an application for adjournment in order to obtain further evidence has been held to be a step-in-aid see Abdul Kadir Rowther v. Krishna Malamal Nair 23 I C. 533 : 38 M. 695 : 1. L.W. 271 : (1914) M.W.N. 563 : 15 M.L.T. 305. But the adjournment here was not based on latter ground, and if the present plaintiff had relied solely on this point, his case might well have failed. But as I am in bis favour on the other point, it is unnecessary for me to express any final opinion on this secondary matter.

13. I would accordingly dismiss the appeal with costs.

Pratt, J.

14. The only question for decision, in this appeal is whether the Darkhast filed on the 7th June 1916 is in time.

15. The next preceding Darkhast was filed on the 10th April 1912.

16. The Darkhast of 7th June 1916 is, therefore, beyond the time limited by Article 182 (5).

17. It is contended, however, that certain proceedings taken under the Darkhast of 1912 entitle the applicant to an exclusion of time under Section 14 (3) of the Limitation Act.

18. The Darkhast dated 10th April 1912 was filed in the proper Court, the Court of the Subordinate Judge of Vadgaon. This is admitted, as indeed it must be, for if the Darkhast had not been filed in the proper Court, the starting point for limitation would have to be the next preceding Darkhast.

19. But although it was filed in the proper Court and so was the terminus a quo for limitation under Article 182 (5), the Subordinate Judge on the 15th April 1912 passed orders on it at a time when be was not sitting within the local limits of his jurisdiction. On appeal it was held by the District Court on the 26th February 1912 that all proceedings under that Darkhast subsequent to the 15th April 1912 were void. This order was confirmed by the High Court in second appeal on the 3rd February 1915. When the proceedings under the Darkhast were revived as from the 15th April 1912, in consequence of these orders, the applicant failed to appear and that Darkhast was dismissed for his default. This necessitated the filing of the fresh Darkhast on the 7th June 1916.

20. On these facts the contention is that the application is entitled to a deduction of the time occupied in the proceedings under the Darkhast of 1912 from the 15th April 1912 till the decision of the High Court on the 3rd February 1915.

21. This claim seems to be inadmissible. Section 14 (2) applies to cases where after limitation has begun to run the applicant in good faith takes a proceeding in a Court which is unable to entertain it. An application to a wrong Court does not afford a new starting point for limitation because, under Article 182 (5), the application must be to the proper Court. The starting point of limitation is, therefore, the last preceding application to the proper Court but the period occupied by a subsequent proceeding in the wrong Court is deducted. A proceeding -Under an application to a proper Court can never be deducted, for, under Article 182 (5), the period of limitation runs from the date of application and not from the date of disposal of (the execution proceedings.

22. It is admitted that if the High Court had held that the Subordinate Judge's order of the 15th April was valid the Darkhast of 1916 would be time-barred.

23. The applicant's contention, therefore, is that the want of jurisdiction of the first Court had put him in a better (position than he world have been in, If the Court had jurisdiction. This is surely not what the Section 14 (2) of the Limitation Act means. Limitation implies a terminus a quo as well as a terminus ad quem, The terminus a quo is the date of the application of 1912. The terminus ad quem is three years from that date. Section (2) refers to 'another civil proceeding. Surely, that must be a civil proceeding other than that which forms the terminus a quo. In Hira Lal v. Badri Das 2 A.792 : 7 I.A. 167 : 6 C.L.R. 561 : 4 P.C.J. 157 : 4 I J. 426 : 3 P.C.J. 7661 : 1 I D. (1028 the time excluded was taken up by other applications made after limitation had begun to run to a Court to which the execution of the decree had been illegally transferred. The applicant is defeated not by limitation but by his own laches in not prosecuting the Darkhast of 1912, after the order of the High Court in 1915. It is not contended that the application of 1916 was merely to revive that of 1912, but,there is one-other point taken and that is, that the applicant on the 20th July 1913 made can application for stay of proceedings in the Darkhast of 1912. But I do not think such an application can be construed as a step-in-aid of execution. On the contrary, it is in fact an application to the Court not to take any step-in-aid of execution [see Fakir Muhammad v. Ghulam Husain 1 A 580 : 1 I D 451] I Would, therefore, reverse the order of the lower Appellate Court and restore that of the Subordinate Judge.

Marten, J.

23. The question is, what order the Court should make, having regard to the difference of opinion between my learned brother and myself on this Letters Patent appeal from, the judgment of Mr. Justice Shah. Now the question as to what is the proper order where a Beach of Judges of a High Court is divided in. opinion has been considered recently in more than one case. The first case I refer to is Surajmal v. Horniman 47 I. C. 449 : 20 Bom L.R. 185. There Mr. Justice Macleod sitting on the Original Side decided in favour of the plaintiff. On appeal to Sir Basil Scott and Sir John Heaton, the learned Judges were divided. Sir Basil being for reversing the decree and Sir John Heaton for confirming it. It was then held by both Scott, C.J., and Heaton, J., that it being an Original Side appeal, the provisions of the Letters Patent applied and that the opinion of the Senior Judge would prevail, although he was in a minority of one. Next, an appeal was presented from the decision of Scott, C.J., to a Bench of three Judges, and in the result, the Bench of three Judges agreed with Sir Basil Scott and accordingly his decision prevailed.

24. The proposition that, where there is a difference of opinion on an Original Side Appeal the opinion of the Senior Appellate Judge prevails, can no longer be questioned because the precise point has been decided by the Privy Council in Bhaidas Shivdas v. Bai Gulab 60 I. C. 822 : 45 B. 718 : 48 I.A. 181 : 23 Bom. L.R 623 : 40 M.L.J 519 : 25 C.W.N. 605 : 38 C.L.J. 488 : 19 A.L.J. 409 : 26 C.W.N. 129 : 14 L.W. 7 : 29 M.L.T. 350 : (1921) M.W.N. 408 : 3 U.P.L.R. 22 which was decided after Surajmal's case 47 Ind. Cas. 449 : 20 Bom L.R. 185.

25. Then, following on Surajmal's case 47 Ind. Cas. 449 : 20 Bom L.R. 185. the whole position was considered in Bhuta v. Lakadu Dhansing 50 Ind. Cas. 715 : 43 B. 433 : 21 Bom. L.R. 157 by a Full Bench of this Court consisting of Scott, C.J., Heaton, J., Macleod, J., Shah, J., and Hayward, J., on a difference of opinion between Beaman, J., and Heaton. J., on a second appeal from the mofussil. The precise point there was as to the procedure in second appeals from the mofussil. It was held that on the Appellate Side of the Bombay High Court where the Judges differ in such appeals, the procedure is governed by Section 98 of the Civil Procedure Code and not by Clause 39 of the Letters Patent of the Bombay High Court. It will be found that Mr. justice Heaton and Mr. Justice Shah agreed with the judgment of Sir Basil Scott and I take these few passages from the judgment of Sir Basil Scott. At page 176 page of 21 Bom. L.R.--[Ed] be says:--'In my opinion Section 98, like Section 104, read with Order XLIII, Rule 1, must be taken to apply to appeals from Courts of inferior jurisdiction to the High Court, and not to appeals from one or more Judges of the High Court.' And then at page 177 page of 21 Bom. L.R.--[Ed]. he says:--''It appears to me, therefore, both upon the provisions of the Code and Letters Patent and the reported decisions of this and other High Courts, that the procedure under Clause 36 should be followed in case of appeals from the Original Side. It should also be followed in other cases to which Section 98 cannot properly and without straining language be applied as Was deeded by the Allahabad High Court in Husaini Begam v. Collector of Muzaffarnagar 11 A. 176 : (1889) A.W.N. 27 : 13 Ind. Jur. 316 : 6 Ind. Dec. 540, and in the later case of Lachman Singh v. Ram Lagan Singh 26 A. 10 : (1903) A.W.N. 162.'

27. Then, I find that Mr. Justice Hayward deals in detail with the various descriptions of appeals. He refers to three different classes of appeals, viz., (1) appeal from the decision of a single Judge on the Original Side, (2) appeals under the Letters Patent, and (3) second appeals from mofussil. The conclusion he arrives at is that the second class of case, viz., appeals under the Letters Patent which we have to deal with here are governed by the same rules, as those dealing with Original Side appeals. Thus, at page 180 page of 21 Bom. L.R.-[Ed.] he says: 'It appears to me the rule would, as held in the case of Surajmal v. Homtman 47 Ind. Cas. 449 : 20 Bom L.R. 185, still apply in the exercise of the Appellate Civil Jurisdiction over the Judges of the High Court It has already been indicated that this jurisdiction has arisen entirely out of the Letters Patent; while the Appellate Civil Jurisdiction over the Civil Courts of the mofussil subject to the High Court has been derived from the provisions of Section 332 of the Civil Procedure Code of 1859, as amended by Section 23 of Act XXIII of 1861. It appears to me to follow that the natural place to find the rules governing the exercise of the Appellate Civil Jurisdiction over the other Judges of the High Court would be the Letters Patent, while the natural place to find the rules governing the exercise of the Appellate Civil Jurisdiction over the Civil Courts of the mofuasil subject to the High Court would be the Civil Procedure Code.' Then, after quoting certain decisions, he says at page 181 page of 21 Bom.L.R.--[Ed.] 'It was finally observed by Sir Lawrence Jenkins, C.J., in 1915 that 'the Code makes no provision for an appeal within the High Court, that is to say, from a Single Judge of the High Court. This right of appeal depends on Clause 15 of the Charter.' [Debendra Nath Das v. Bibudhendra Mansingh 33 Ind. Cas. 745 : 43 C. 90.]'

28. I agree that, so far as Counsel's industry has brought the Indian authorities to our notice, no express decision of our Court as to Letters Patent appeals has been brought to our attention. This last case, as I have said, was a decision of a second appeal from the mofussil and was not a Letters Patent appeal, but, as I have already pointed oat, both Sir Basil Scott and Mr. Justice Hayward in their judgments considered the whole question and incidentally dealt with appeals of that nature. Shortly stated, therefore, this Full Bench decision amounts to this, that appeals under the Letters Patent are governed by the Letters Patent, and appeals under Code are governed by the Code. Further, the Code only deals with appeals from certain Courts and it does not deal with appeals with the High Court from the decision of the Judge of the Court to another.

29. That being, in my opinion, the true view of the relative position of the Letters Patent and the Code, what are the facts which we have got here? To my mind, it is perfectly clear that we are not hearing a second appeal from the mofussil but we are hearing an appeal from the judgment of Mr. Justice Shah. In fact, but for the Letters Patent, there would be no appeal whatever from Mr. Justice Shah's judgment. I agree the learned Judge gave no notice to the respondent, but that seems to me to make no difference in principle. Shah, J summarily dismissed the suit and that was the order or decree of the High Court which operated finally to dispose of the suit. If one looks to the Code alone there is no appeal from that decision. The appeal is admittedly brought under the Letters Patent and that is the appeal we are now hearing.

30. The fact that this Letters Patent appeal was admitted by Macleod, C.J., and Coyajee, J., is immaterial. The object of that course was to save the necessity and expense of notice to the respondent, supposing the appeal had been considered too clear to warrant further argument. Otherwise, appellants could always force their opponents to appear by appealing under the Letters Patent from a summary dismissal by a Single Judge. The admission of the Letters Patent appeal merely amounted to this, that, in the opinion of Macleod, C.J., and Coyajee, J., with which I respectfully agree, there was a case which required to be argued, and accordingly it was necessary to give notice to the other side. They in no way reversed Mr. Justice Shah's judgment, and accordingly what we are hearing is an appeal from another Judge of this High Court, viz., Mr. Justice Shah. In the present case, unlike Surajmal's case 47 Ind. Cas. 449 : 20 Bom L.R. 185, it so happens that the Senior Judge is in favour of the decree. But that to my mind is immaterial except possibly on the question of costs.

31. In the result, I am clearly of opinion that the matter is governed by Letters Patent, and accordingly the opinion of the Senior Judge prevails in accordance with the decision of the Privy Council in Bhiaidas Shivdas v. Bai Gulab 60 Ind. Cas. 822 : 45 B. 718 : 48 I.A. 181 : 23 Bom. L.R 623 : 40 M.L.J 519 : 25 C.W.N. 605 : 38 C.L.J. 488 : 19 A.L.J. 409 : 26 C.W.N. 129 : 14 L.W. 7 : 29 M.L.T. 350 : (1921) M.W.N. 408 : 3 U.P.L.R. 22.

32. The order of the Court will be that this appeal will be dismissed and there will be no order as to the costs of this appeal. In Surajmal's case 47 Ind. Cas. 449 : 20 Bom L.R. 185. Sir Basil Scott, C.J., and Heaton, J., made no order as to costs because the Senior Judge was in a minority of one. In the present case the opinion of the Senior Judge is with the majority. I think that, on the whole, as the result of the appeal is nugatory, is fair, as far as We are concerned, that we should make no order as to costs. If there is any further appeal the learned Judges who will hear the further appeal, can make such order as they think fit as regards the costs here and in the Courts below,

Pratt, J.

33. I agree that the procedure should be regulated by Section 36 of the Letters Patent. It has been made clear by the recent decision of the Privy Council in Bhaidas Shivdas v. Bai Gulab 60 Ind. Cas. 822 : 45 B. 718 : 48 I.A. 181 : 23 Bom. L.R 623 : 40 M.L.J 519 : 25 C.W.N. 605 : 38 C.L.J. 488 : 19 A.L.J. 409 : 26 C.W.N. 129 : 14 L.W. 7 : 29 M.L.T. 350 : (1921) M.W.N. 408 : 3 U.P.L.R. 22. that Section 98 of the Civil Procedure Code applies to appeals under the Civil Procedure Code and Section 36 of the Letters Patent applies to appeals under the Letters Patent. The appeal which we have now heard is under Letters Patent, and, therefore, Section 36 of the Letters Patent applies.

34. Mr. Limaye argues that as the judgment of Shah, J., which is before us in appeal is an appellate judgment, therefore, the appeal that we are now hearing is in fact a second appeal, and, therefore, an appeal under the Civil Procedure Code. But the name second appeal does not make this a Civil Procedure Code appeal for that Code does not provide for appeals within the High Court. The Civil Procedure appeal was disposed of by Shah, J., Section 15 of the Letters Patent makes no distinction between an original judgment and an appellate judgment. The appeal we have heard is tinder Section 15 and so section 36 now applies.

35. There is an express authority for the application of Section 36 off the Letters Patent in a difference of opinion upon the hearing of an appeal under the Letters Patent from a judgment in an appeal under the Civil Procedure code. That is a case in Lachman singh v. Ram Lagan Singh 26 A. 10 : (1903) A.W.N. 162. That was 'an appeal under the Civil Procedure 'Code. It was disposed of by one Judge and on that there was a Letters patent appeal to two Judges of the Allahabad High Court. On a difference of opinion then arising it was held that Section 36 of the Letters Patent applied, and that the opinion of the Senior Judge prevailed.


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