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The Deities of Sri Audinarayana Swamy and Anjenayaaswami Temples of Donepudi Vs. R. Hanumacharyulu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberC.M.P. Nos. 4713 and 9711 of 1960
Judge
Reported inAIR1962AP245
ActsSupreme Court Rules, 1950 - Order 12, Rule 3 - Order 33 - Order 45; Code of Civil Procedure (CPC),1908- Sections 112 and 114 - Order 45 - Order 47
AppellantThe Deities of Sri Audinarayana Swamy and Anjenayaaswami Temples of Donepudi
RespondentR. Hanumacharyulu and ors.
Appellant AdvocateAdv. General and ;Y. Suryanarayana, Adv.
Respondent AdvocateA. Kuppuswamy and ;T. Ramachandrarao, Advs.
Excerpt:
civil - leave to appeal - order 12 rule 3 of supreme court rules, 1950 and order 45 of code of civil procedure (cpc), 1908 - certificate of appeal cancelled - whether such order can be reviewed and second application under order 45 for new certificate maintainable - no power given under supreme court rules to review order of cancellation of certificate - second application under order 45 code of 1908 for new certificate not maintainable as order made under supreme court rules cannot be nullified by resorting to code of 1908. - 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..........under order xii, rule 3 of the supreme court rules and not under anay of the provisions of the civil procedure code. seeing the force of this contention the petitioner preferred another petition (s. r. no. 39553 of 1960) for leave to appeal to the supreme court within application (c. m. p. no. 9711 of 1960) to condone the delay in presenting it. (4) the two points that call for determination here are (i) whether the order dated 4th march 1960 could be reviewed and, if that could not be done, (ii) whether a fresh petition under o. xlv of the civil procedure code is maintainable. (5) the two points could be easily disposed of. it does not present any difficulty if it is remembered that the order in question was passed under order xii, rule 3 of the supreme court rules. that rule.....
Judgment:

Chandra Reddy, C.J.

(1) The question we are called upon to decide in these two petitions is as to the effect of cancellation of a certificate under Order XII, Rule 3 of the Supreme Court Rules, 1950.

(2) The deities of Sri Audinaraayanaswamy and Anjaneyaswami Temples of Donepudi represented by the Executive Officer, N. Mohana Rao, the petitioner in these petitions, obtained leave to 8 appeal to the supreme Court against the judgment of this Court in A. S. No. 591 of 1952. The petitioner had to furnish security and deposit the money required for preparation of books for the use of the Supreme Court before 18-12-1959. As he failed to do either till 4-3-1960 nor had he applied for extension of time, this Court cancelled the certificate granted on 6-11-1959. Shortly thereafter, the petitioner filed C. M. P. No. 4713 of 1960 for reviewing that order setting out the circumstances that prevented him from furnishing security and to make the necessary deposit.

(3) When this petition came on for hearing, an objection was raised by the learned counsel for competent, as the order sought to be reviewed was made under Order XII, Rule 3 of the Supreme Court Rules and not under anay of the provisions of the Civil Procedure Code. Seeing the force of this contention the petitioner preferred another petition (S. R. No. 39553 of 1960) for leave to appeal to the supreme Court within application (C. M. P. No. 9711 of 1960) to condone the delay in presenting it.

(4) The two points that call for determination here are (i) whether the order dated 4th March 1960 could be reviewed and, if that could not be done, (ii) whether a fresh petition under O. XLV of the Civil Procedure Code is maintainable.

(5) The two points could be easily disposed of. It does not present any difficulty if it is remembered that the order in question was passed under Order XII, Rule 3 of the Supreme Court Rules.

That rule recites:-

'Where an appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that Court may on its own motion or on application in that behalf made by the respondent, cancel the certificate and may give such directions as to the costs of the appeal and the security entered into by the appellant as it shall think fit or make such further of other order as the justice of the case required '.

(6) Such an order is not capable of being reviewed for the reason that there is nothing in the Supreme Court Rules which permit such a course. Nor can recourse be had to the provisions of the Civil Procedure Code, as the order inquisition was not made under the provisions of the Civil Procedure Code but was made under the Supreme Court Rules. In such a situation, no resort could be had either to Sec. 114 or Order XLVII of the Civil Procedure Code. Section 122 of the Civil Procedure Code says:-

'Nothing contained in this Code shall be deemed-

(a) to affect the powers of the Supreme Court under Article 136 or any other provisions of the Constitution, or

(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court. x x x x x

(7) By virtue of this section, it is not s permissible to fall back upon the provisions of the Civil Procedure Code when an order was made under the Supreme Court Rules.

(8) The same result is reached by reached by reading section 4 C. P. C. which is in these words:-

'(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or 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) Indisputably, the relevant rule is the special law enacted by the Supreme Court under Article 136 of the Constitution. That being the position, the Supreme Court Rules take Precedence over section 114 and Order 47 C.P.C.

(10) This view of ours gains support from Abdul v. sh. Mohd. Saheed, AIR 1951 Punj 43. In such a situation, the learned Advocate General conceded and rightly, in our opinion, that the petition for review was not competent.

(11) This leads us to the question whether a fresh application for leave could be entertained. The argument presented by the learned Advocate General in this behalf is this: Cancellation of the certificate under Order XII, Rule 3 of the Supreme Court Rules does not debar the petitioner from filing another petition for leave to file an appeal to the Supreme Court as there is nothing in the rules to preclude the High Court from receiving another application. Notwithstanding the revocation of the certificate, under the Supreme Court rules the applicability of the Civil Procedure Code is not excluded. Lastly the consequence of an order passed under Order XII, R. 3 is to relegate the petitioner to the position which he occupied before the presentation of the application under Order XLV C. P. C. and as such there is no impediment to the petitioner invoking afresh Order 45, Civil Procedure Code.

(12) To deal with the first point, we feel that when once leave to file an appeal to the Supreme Court has been grand, the further stages of the appeal are governed by the Supreme Court Rules except in relation to matters specifically mentioned in Order XLV C. P. C. Thereafter, the High Court is divested of jurisdiction to deal with anything connected with the appeal except as provided in Order XLV.If so, we have to see whether the Supreme Court Rules empower the High Court to entertain another application. There is no rule which confers such an authority on the High Court. Order XXXIII of the Supreme Court Rules vests power of review only in the Supreme Court,while Order XLV of these Rules clothes that Court with inherent jurisdictions. No such power is extended to the High Court under the supreme Court Rules.

The learned Advocate-General contends that is not decisive of the matter and that so long as there is nothing which prevents the High Court from taking on file another petition, it would be open to the Court to entertain a second petition. We do not think that we can assent to this proposition. Unless such power is specially conferred, the High Court will have no jurisdiction to receive another petition under Order XLV. In our opinion, therefore, the High Court cannot exercise the function which is specially alloted to the Supreme Court under the Supreme Court Rules.

(13) We have next to consider whether the provisions of the Civil Procedure Code could be called in aid to enable the petitioner to maintain another application under Order XLV, C. P. C. We do not think that the petitioner could follow that course having regard to the fact that the order was passed under Order XII Supreme Court Rules. That being so, much an order cannot benullified by invoking the provision of the Civil Procedure Code.

(14) Even if the provision of the Civil Procedure COde could be invoked, we do not see how it makes any material difference, for, we are not shown any section or order of the Civil Procedure Code which entitles a party to filea second petition under Order XLV of the Civil Procedure Code. That order does not contemplate successive applications. We think that there is nothing in the Code which warrants the conclusion that a second application could befiled for leave to appeal to the Supreme Court.

(15) We now turn to the last contention of the learned Advocate-General, namely, that consequent upon the cancellation of the certificate the position is as though no petition at all has been presented by his client. To substantiate this proposition the learned Advocate-General calls in aid Abdul Majid v. Jawahirlal, ILR 36 All 350: (AIR 1914 PC 66) and Sachindra Nath Roy v. Maharaj Bahadur Singh, ILR 49 Cal 203 : (AIR 1922 PC 1870. Though this argument appears to be quite plausible, we find it difficult to accede to it for reasons which will be mentioned presently.

(16) ILR 36 All 350 : (AIR 1914 PC 660 does not improve the position of the petitioner in any way. There, the Privy Council was dealing with the impact of an order dismissing an appeal for want of prosecution after obtaining leave to prefer an appeal to His Majesty in Council on Article 182 of the Limitation Act. The question to be answered by their Lordships of the Privy Council was whether the period of limitation could be computed from the date of the order of dismissal of the appeal for non-prosecution for purposes of Article 182 (2) of the Limitation Act. Their Lordships ruled that the dismissal was inefficacious to save limitation under Article 182(2). It is in that context that their Lordships remarked that the decree-holder was in the same position as if he had not appealed at all. It is not as an universal rule that their Lordships laid down that the dismissal of an appeal to His Majesty in Council for non-prosecution should involve the thought that no proceedings wereinitiated at all under order XLV C.P.C. The statement of law thereshould be confined to the particular situation arising under Art. 182 (2) of the Limitation Act, the controversy being whether there was an effective appeal for the purpose of that rule. Therefore, the rule stated does not impinge upon a point arising under Order XII, Rule 3 of the Supreme Court Rules. Acceptance of this contention would involve the overlooking of the provisions culminating in the cancellation of the certificate. There is no rule of law which would warrant the assumption that all proceedings culminating in the cancellation of the certificate have been wiped out. We do not think that cancellation of the certificate could have result that it attributed to it.

(17) Their Lordships of the Privy Council reiterated the principle embodied in ILR 36 All 350:(AIR 1914 PC 66)in ILR 49 Cal 203: (AIR 1922 PC 187). These two pronouncements of the Privy Council do not render much assistance to the petition. Hence, we are driven to the conclusion that a second petition is inadmissible under Order XLV, Rule 2 C. P. C. That being so, it is necessary for us to consider whether there are circumstances which justify the condonation of the delay in the filing of this petition. It may be that the petitioner had good reasons for not satisfying requirements of Order XLVII, R. 7 C. P. C. in time but that is not the point here. Since we have no jurisdiction to entertain any application,we have no option but to dismiss it.In the result, both the petitions are dismissed. There will be no order as to costs. We are obliged to Sri P. Ramachandra Reddy, (Government Pleader) who gave us assistance as amicus curiae.

(18) Petitions dismissed.


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