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Kondapalli Ayyanna and ors. Vs. Venka Bhadraiah Minor by Guardian Venka Subba Rao - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberS.C.C.M.P. No. 9015 of 1961 and C.M.P. No. 11502 of 1961
Judge
Reported inAIR1963AP15
ActsConstitution of India - Article 133 and 133(1); Code of Civil Procedure (CPC), 1908 - Sections 109 - Order 22, Rule 5 - Order 41, Rule 23; Indian Arbitration Act - Sections 19
AppellantKondapalli Ayyanna and ors.
RespondentVenka Bhadraiah Minor by Guardian Venka Subba Rao
Appellant AdvocateAdv. General, ;B. Rajabhushana Rao and ;I. Suryanarayana, Advs.
Respondent AdvocateSankara Sastry and ;T. Veerabhadraiah, Advs.
DispositionPetition dismissed
Excerpt:
.....a final order - held, petition not maintainable as order is not final order - leave to appeal under article 133 cannot be granted. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are..........as such, it is only a collateral matter and it is not germane to the real issue arising in the suit or appeal viz., as to the factum and the validity of the adoption of the respondent. the question as to who is the legal representative of the plaintiff or the defendant does not touch the subject matter of the suit as it does not relate to any of the issues arising in the suit, the only concern of the court in that enquiry being as to who should be admitted to be such a legal representative for the purpose of prosecuting the suit or the appeal. the point as to who should be substituted in the place of the deceased party for the purpose of proceeding with the litigation does not affect the ultimate rights and liabilities of the parties. consequently, it could not be postulated that.....
Judgment:

P. Chandra Reddy, C.J.

1. This is a petition for leave to appeal to the SupremeCourt against an order of one of us and the late Ramachandra Rao J., holding that the petitioners were not the legal representatives of the deceased sole respondents in A. S. No. 436 of 1956, that the second appellant therein, i.e., the present respondent was the sole representative of the deceased 1st appellant by reason of the will bequeathing all her properties to him and that the interests of the sole respondent in the appeal vested in the 2nd appellant.

2. The facts giving rise to this petition are briefly these :One Mokhamatla Venkanna, a rich landlord of Akutlgappandu, a village in the West Godavari District died intestate on 8-12-1952 leaving behind him two widowsKondamma and Venkata Lakshmi Devi. Kondamma, the senior widow, adopted one Bhadrayya, her brother's son's son on 7th March 1953. Questioning the factum and the validity of this adoption, the junior widow Venkta Lakshmi Devi filed O. S. No. 31 of 1953 in the Court of the Subordinate Judge, Eluru, for division of the properties of her husband into two equal shares and for separate possession of one such share to her and for consequential reliefs. To the said suit were impleaded the senior widow and the adopted son as defendants 1 and 2 respectively.

3. The trial court granted a declaration that the adoption of the 2nd defendant was not true as the evidence in proof of the giving and taking did not commend itself to it and gave a decree for partition and separate possession of half a share in the plaint schedule properties except in regard to the 23rd item of A Schedule. The aggrieved defendants carried appeal No. 436 of 1956 to this Court, while the plaintiff-respondent preferred a memorandum of cross-objections in regard to the items disallowed.

4. After the disposal of the suit but before thepresentation of the appeal, the 1st appellant once againmade an adoption of the 2nd appellant (2nd defendant)and executed a registered deed of adoption in respect thereof. During the pendency of the appeal, Venkata Lakshmi Devi was murdered on 23rd June 1957. Two persons by name Kondappalli Ayyanna, the brother of the deceased respondent, and Makthamatla Satyanarayana, the natural brother of the deceased Venkanna, applied to be brought on record as the legal representatives of the deceased respondent, who will hereafter be referred to as petitioners, claiming to be the donees under the gift deed (Ex. A-2) said to have been executed by Venkata. Lakshmi Devi sometime before her death. This application was opposed by the two appellants on the ground that the document relied upon was a spurious one. As the genuineness of the document was contested, this Court directed an enquiry by the Subordinate Judge into the truth of the said gift-deed.

5. Meanwhile, Ex. A-2 was presented before the, Sub-Registrar for registration but he refused to register it not being satisfied with its genuineness. On appeal, the District Registrar, directed the Sub-Registrar to register the document. In the course of the enquiry before the Subordinate Judge, reliance was placed on the evidence produced by the petitioners before the District Registrar The Subordinate Judge, on the material available then submitted a finding to this Court that the aforementioned gift deed was a genuine one. The two appellants filed objections to the finding.

6. While this matter was pending, the 1st appellant Kondamma died on 22nd February 1959. Immediately Satyanarayana, one of the petitioners i.e., the natural brother of her deceased husband, filed a petition for impleading him as her legal representative. Similarly, the 2nd appellant Bhadrayya (the present respondent) applied to this Court to record him as the sole representative of the first appellant on the basis of a registered will executed by Kondomma bequeathing all her properties then owned and to be acquired by her to him. When all these petitions came up before a Single Judge of this Court, he directed an enquiry into all these petitions with a further direction that the opinion of the State Hand-writing Expert should be obtained as requested by the petitioners in C. M. P. No. 3051 of 1958. When these matters went back to the Sub-court, a handwriting expert of Bangalore one Mahajan was examined and he gave the opinion that the signatures in the questioned document were not those of Venkata Lakshmi Devi.

7. After an elaborate enquiry into the genuineness of both the gift deed and the will, the Subordinate Judge submitted a consolidated finding dated 17-10-1960 to the effect that Ex. A-2 was not genuine and that the will said to have been executed by Kondamma was a genuine one. When this matter came up before one of us (Chief Justice) and the late Ramachandra Rao, J., while not impugning the conclusion of the Subordinate Judge as regards the genuineness of the will executed by Kondamma, the Advocate General for the petitioners attacked the finding relating to Ex. A-2. On a review of the oral and the documentary evidence and the attendant circumstances, we accepted the finding of the trial court and decided that the petitioners could not continue the appeal as the legal representatives of Kondamma as they did not derive any interest under Ex. A-2, that her share devolved on her husband's heir Kondamma and that as Kondamma left her last will and testament making a bequest of all her properties to the respondent, he would be the legal representative even for Venkata Lakshmi Devi's estate, to which Kondamma succeeded. Because of the resultingposition, no decision was given on the merits of the appeal. The petitioners were directed to pay the costs of the enquiry and of the appeal.

8. It is this order that is sought to be appealed against to the Supreme Court. This is resisted by the respondent on the ground that this matter does not fall within the ambit of Article 133 for two reasons : (1) that it is not a judgment, decree or final order in a civil proceeding within the connotation of Sub-article (1) and (ii) that it does not fall within the scope of Clause (a).

9. We will first consider whether it answers the description of a judgment, decree or final order. Article 133 reads :

'(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies: (a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law'.

10. Could it be said that this order is a judgment, decree or final order? It is not contended that the order under consideration amounts to a judgment or a decree within the meaning of Article 133. What is faintly argued is that the decision in question is a final order within the terms of the article. We do not think this contention can be upheld. The finality envisaged in that article is a finality in relation to a suit. To attract that article, the rights of the parties involved in the suit or the appeal must be finally disposed of. If, on the other hand, the suit is left alive and the trial on its merits is yet to take place in the ordinary way and the rights of the parties have to be determined therein, there can be no final order within the contemplation of that article. The adjudication should cover the entire range of the substantive rights and liabilities forming the subject-matter of the controversy in the suit or proceedings which initially gave rise to the dispute.

11. There is abundant authority for this position. In Firm Ramchand Manjimal v. Firm Govardhandas Vishan Das Ratanchand, ILR 47 Cal 918 : (AIR 1920 PC 86), the Privy Council decided that an order passed in an appeal staying suit under Section 19 of the Indian Arbitration Act was not a final order within the meaning of Section 109(a) of the Civil Procedure Code. Lord Cave, delivering the judgment of the Board, laid down the proposition that 'an order is final if it finally disposes of the rights of the parties' and it could not be said to be final disposal of the rights when they were left to be determined by the Courts m the ordinary way.

12. This principle was re-affirmed by the Privy Council in Abdul Rahman v. D.K. Cassim and Sons, 64 Mad LJ 307 : (AIR 1933 P C 58). It was there held that a judgment of a court remanding a suit for trial on merits under Order 41 Rule 23 C. P. C. was not a final order within the purview of Section 109(a) C. P. C. though it decided a very Important and a vital issue in the case. Their Lordships observed that the test of finality was whether the order in question finally disposes of the rights of the parties.

13. The view taken by the various High Courts in India is in consonance with this doctrine. It is unnecessary to refer to all of them except to the latest Full Bench decision of the Allahabad High Court InSavitri Devi v. Rajul Devi, : AIR1961All245 (FB), which has collected all the decisions on the topic. This case contains the principle enunciated above. It was ruled there that an order passed by a High Court in an appeal setting aside that of the trial court recording a compromise is neither a judgment nor a decree within the meaning of the terms of Article 133 of the Constitution, the order being only an interlocutory one.

14. If we apply that test, our decision cannot be regarded as either a judgment, decree or final order. The order sought to be appealed against was one passed under Order 22 Rule 5 and it is limited to the purpose of continuing the appeal. As such, it is only a collateral matter and it is not germane to the real issue arising in the suit or appeal viz., as to the factum and the validity of the adoption of the respondent. The question as to who is the legal representative of the plaintiff or the defendant does not touch the subject matter of the suit as it does not relate to any of the issues arising in the suit, the only concern of the Court in that enquiry being as to who should be admitted to be such a legal representative for the purpose of prosecuting the suit or the appeal. The point as to who should be substituted in the place of the deceased party for the purpose of proceeding with the litigation does not affect the ultimate rights and liabilities of the parties. Consequently, it could not be postulated that there is any final adjudication on the questions arising in the suit itself. It is also to be borne in mind that there is no appeal against an order passed under Order 22 Rule 5 C. P. C. which clearly indicates that the legislature did not intend to invest such an order with finality.

15. The opinion of the various High Courts seems to be unanimous on this subject. The effect of an order under Order 22 Rule 5 C. P. C. fell to be considered by the Madras High Court in Pakkran v. Pahumma, 25 Mad LJ 279. It was laid down by a Division Bench of that Court that such a question cannot be treated as one arising in the suit itself being only a matter collateral to the suit and any decision reached in such an enquiry would not operate as res judicata.

16. In support of this conclusion they relied on the decisions of the Bombay and Allahabad High Courts in Balabai v. Ganesh, ILR 27 Bom 162 and Parsotam Rao V. Janki Bai, ILR 28 All 109.

17. The judgment of the Nagpur High Court as embodied in Kuwarlalsingh v. Kuwarani Uma Devi, AIR 1946 Nag 424 that an order under Order 22 Rule 5 C. P. C. was not a judgment within Clause 10 of the Letters Patent of Nagpur and that such an order would not constitute res judicata.

18. To a like effect are the rulings of two Division Bench of the Allahabad High Court in Antu Rai V. Ram Kinkar Rai, ILR, 58 All 734 : (AIR 1936 All 412) and Ram Kalap v. Banshi Dhar, : AIR1958All573 .

19. Similar is the view of the Lahore High Court in Chiragh Din v. Dilawar Khan, AIR 1934 Lah 465.

20. It is unnecessary to pursue this subject any further. Suffice it to say that the order under consideration is not a judgment, decree or final order within the scope of Article 133 of the Constitution.

21. In this view of ours, it is unnecessary for us to consider whether it comes under Clause (a) or not.

22. The petition Is, therefore, dismissed.

C. M. P. No. 11502 Of 1961.

23. There is a delay of 189 days in presenting thispetition. The only ground put forward in support of the, application to execute the delay is that at that time of the delivery of the judgment, neither the counsel for the party realised the effect and the implication of the passage in the judgment and decree directing the. petitioners to pay the costs of the appeal. We are not satisfied that this is a sufficient ground for excusing his long delay. Even otherwise, we do not think that it would furnish a ground for entertaining a review petition. Further, this is not seriously pressed.

24. This petition also is dismissed.


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