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Bollapalli Venkat Rao Vs. Chaturvedula Subbaiah and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revision petition No. 1118 of 1980
Judge
Reported inAIR1983AP166
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 - Order 21, Rule 58 and 58(4); Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 100 to 101
AppellantBollapalli Venkat Rao
RespondentChaturvedula Subbaiah and anr.
Appellant AdvocateP.L.N. Sarma, Adv.
Respondent AdvocateA. Suryanarayana Murthy, Adv.
Excerpt:
civil - execution proceeding - section 47 and order 21 rules 58 and 58 (4) of code of civil procedure, 1908 and sections 100 and 101 of code of civil procedure (amendment) act, 1976 - whether second appeal lies to high court against appellate order passed on application under order 21 rule 58 - petitioner filed application under order 21 rule 58 which was rejected - appellate court confirmed order of executing court - petitioner filed revision petition - court observed that civil revision petition not maintainable as high court cannot entertain revision petition in view of prohibition contained in section 115 (2) - appellant has to file civil miscellaneous second appeal. - - a well know dicta of viscount haldane l. its jurisdiction is enlarged, but all the incidents of such..........by examining the precedents to touching the question.6. first of all the provision occurs in the civil procedure code and it refers to the procedure in all established courts and it is not any special law made by the parliament. the leading case on the subject is national telephone company limited v. his majesty's postmaster general 1913 ac 546 a judgment of house of lords which was followed by indian courts and accepted by the supreme court also. as per sec. 1 of the telephones arbitration act, 1909 any difference between postmaster general and another relating to telephones shall be referred to the arbitration and such proceedings shall be governed by the provisions of the railway and canal traffic act, 1888. an appeal against the order passed by the canal commission and preliminary.....
Judgment:

Kodandaramayya, J.

1. This civil Revision petition is referred for decision of a Division Bench by our learned brother Rama Rao, J. The question referred is whether a second Appeal lies to this Court against the appellate order passed on an application under O. 21 R. 58 C.P.C

2. The petitioner herein filed an application under O. 21 r. 58 C.P.C before the subordinate judge Narasaraopet, to raise the attachment in respect of petition schedule properties challenging the attachment effected at the instance of the 1st respondet-decree- holder who had obtained a decree against the 2nd respondent-Judgment-debtor. The contention of the petitioner is that the execution proceedings in respect of the petition schedule properties are illegal as the property belongs to him and not to the judgment-debtor. At present was are not concerned with the merits of the case and is enough if we notice that the object of the petitioner was overruled by the executing Court. A civil Miscellaneous appeal was filed against the said order of the executing Court dated 18th July 1979 on the file of the I additional Judge Guntur and the Appellate Court in its judgment dated 6-12-1979 confirmed the order of the executing Court. Against the said judgment the petitioner herein filed the present Civil revision petition and the respondent took a prelimiary objection stating that under O. 21 R. 58 (4) C.P.C as amended by Act 104 of 1976 no civil revision petition lies but an appeal lies to this Court.

3. It may be stated at the outset that the learned counsel for the revision-petitioner has filed in the first instance a second appeal but when the office took an objection he converted the same into a civil revision petition. At the time of the final hearing as the matter relates to procedure of general importance the learned Judge referred the matter to a Division bench. That is how it has come before us.

4. The learned counsel for the petitioner himself has now realised the legal position and submitted that a second appeal lies to this Court, but not the civil revision petition. As this case was referred to a Division Bench for the determination of this question, we have examined the legal position and delivering the Judgment without resting our conclusion on any concession made by the counsel.

5. The question whether a second appeal lies or a civil revision petition lies depends upon the construction of the amended provision of O. 21 R. 58, C.P.C the Amending Act 1976 substituted new Rr. 58 and 59 and omitted Rr. 60 to 63 to O. 21 of C.P.C Under the amended provision of R. 58 in order to prevent the protraction of litigation, it has been provided that all questions including questions of title shall be finally detemined in execution proceedings and this provision is in Keeping witht he tenor of s. 47 of the code. The remedy of the suit is preserved if the executing Court refuses to entertain the claim but if an adjudiciation shall have the same force and subject to the same conditions as to appeal or otherwise as if it were a decree. The crucial words in the rule with which we are concerned in this case may be extracted:

O. 21 R. 58 (4) C.P.C. reads as follows:- 'Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and subject to the same conditions as to appeal or otherwise as if it were a decree'.

The question that falls for determination is though under the said provision, appeal lies to the appellate Court under the code, whether a second appeal also lies which is not expressly conferred under said provision. The answer to this question can be arrived at according to us mainly on the arrived at according to us mainly on hte construction of the provision and on gathering the intention of the Amending Act also by examining the precedents to touching the question.

6. First of all the provision occurs in the civil procedure code and it refers to the procedure in all established courts and it is not any special law made by the parliament. The leading case on the subject is National Telephone company Limited v. His Majesty's postmaster general 1913 ac 546 a Judgment of House of lords which was followed by Indian courts and accepted by the Supreme Court also. As per sec. 1 of the telephones arbitration Act, 1909 any difference between postmaster general and another relating to telephones shall be referred to the arbitration and such proceedings shall be governed by the provisions of the Railway and canal Traffic Act, 1888. An appeal against the order passed by the canal commission and preliminary objection was taken that the ocurt of appeal has no jurisdiction to entertain it and the said objection has been overruled and the matter was further carried to the House of Lords and all the learned law lords agreed that the objection is not tenable and the Court of appeal correctly entertained the appeal. A well know dicta of viscount haldane L.C. occurring at page 552 reads as follows:

'When a question is stated to be referred to an established Court without more it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decision likewise attaches'.

At page 562 Lord Parker of Waddington observed as follows:

'Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think that the Court will determine the matters, as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same'.

Though the facts of that case laying down the above rule are not exactly similar to the facts of the present case the principle enunciated therein clearly applies. Further in the present case the right of appeal is conferred by the very provision itself which says that the order passed on an adjudication shall have the same force and subject to the same conditions as to appeal as if it were a decree. If the law is that even though no right of appeal is specifically conferred that if a question is referred to an established Court all incidents attached to the procedure of that Court including the right of appeal is attracted there cannot be any doubt regarding the right of further appeal. The above case was referred by the Supreme Court and a the principle therein was accepted in N.S. Thread co. V. James Chawdwik and Bros., : [1953]4SCR1028 which arose under the Trade Marks Act, 1940 there the question was whether a further appeal lies to a Division Bench against the judgment of a single judge only an appeal was provided under S. 76 of the said Act. Their Lordships held that once the Trade marks Act confers right of appeal to the High Court and says nothing more about it the High Court seized as such of the appellate jurisdiction conferred by sec. 76, it can exercised by a single judge, his judgment becomes subject to appeal under clause 15 of the letters patent, there being nothing to the contrary to the Trade Marks Act. No doubt the Supreme Court rules that if a prohibition is enacted for a further appeal as in the case of arbitration Act of 1940 as per S. 39 (2) of the Act that the proceedings are referred to a civil Court or to an established Court would not confer a further right of appeal (see Union of India v. Mohindra supply co., : [1962]3SCR497 ).

7. In Adikappa v. Chandrasekhara, AiR 1948 PC 12 Lord simonds laid down that 'Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under special statute which does not in terms confer a right of appeal'. This case arose under the madras Agricultural Relief Act whereunder the civil Court was empowered to decide the question under Sec. 19 of the Act relating to the protection given to the agriculturists under the said Act. The mere provision under sec. 19 of the Act relating tothe protection given to the agriculturists under the said Act. The mere provision conferring a power on a Court to determine whether a judgment debtor is entitled tot he protection under the said Act was held to carry with it the further right of appeal without specifically conferring the same on the litigant.

8. In the present case though the right of appeal is conferred, the question debated is whether any further right of second appeal arises. Two judgments of the privy council may be referred to where the further right of the second appeal is said to be implied when such right was given to be adjudicated by the regular civil courts.

9. In secretary of state for India v. Chellikani Rama Rao, (1916) ILR 39 Mad 617: (AIR 1916 PC 21) under the Mad 617: (AIR 1916 pc 21) under the Madras Forest Act V of 1882 an appeal is provided against the order of the forest settlement officer where the claim of the private party is rejected in respect of forest lands but no further appeal is provided to the High Court the High Court entertained further appeal against the judgment of the district judge. When the matter is carried to the privy council against the Judgment of the High Court besides challenging the Judgment of the High Court on merits, the appellant therein raised the object that ll further proceedings in the High Court against the Judgment of the Disteict Judge are incompetent as no further appeal was conferred under the statute to the claimant. Lord shaw who delivered the judgment overruled the said contention and held that where the proceedigs of this character reached the District Court, that Court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the civil Procedure code will apply. His Lordship approved this legal position as obtained in madras and has been acted upon since 1888 on the strength of the Full bench judgment in kamaraju v. Secretary of state for India, (1888) ILR 11 mad 309. His Lordship distinguished Rangoon Botatough distinguished Rangoon botatoung company v. Collector of Rangoon, (1913) ILR 40 Cal 21 where under the proceedings of the land acquisition Act in appeal is provided to the High Court out of a reference to a civil Court after an award is passed, as those proceedings were from the begining to the end are arbitration proceedings to the end are arbitration proceedings. In fact in view of the said judgment in (1913) ILR 40 Cal 21 where in the privy council held a further appeal to it was incompetent as the proceedings under the land acquisition Act are awards but not decrees, the land acquisition Act was amended in 1921 declaring that the awards passed under the Act shall be deemed to be decrees within the meaning of section 2(2) of the civil procedure code Similarly in Maung Ba Than v. Ma Pin, AIR 1934 PC 81. Lord thankerton examined the further right of appeal to the privy council where as per section 75 of the Provincial Insolvency Act the order of the district Judge is made final subject to the limited right of appeal given to the High Court His Lordship followed (1916) ILR 39 Mad 617: (AIR 1916 PC 21) and ruled that 'when a right of appeal is given to one of the ordinary courts of the country the procedure orders and decrees of that Court will be governed by the ordinary rules of the civil procedure code. An Appeal to privy council is therefore maintainable from the decision of the High Court under S. 75 of the said Act'.

10. Mr. P.L.N. Sarma also drew our attention to the two judgments which arose under the Hindu marriage Act prior to the amendment to sec. 28 of the Hindu marriage Act by Amending Act 68 of 1976. In Bai Umiyabhen v. Ambalal, 0043/1966 : AIR1966Guj139 the question of maintainability of further second appeal againt the judgment of the lower appellate Court was considered by justice bhagwati as he then was sitting in a Division Bench. His lordship rules thatthe decision under S. 10 of the Hindu Marriage Act is not a decree within the meaning of section 2(2) of section 28 as it stood unamended which enacted that all decrees and may be appealed from under any law for the time being in force the said language viz., the words decrees and orders' contained in sec. 28 of the Hindu marriage Act according to their plain and natural sense include not only original decrees and orders but also the appellate decrees and orders but also the appellate decrees and orders, these precedents are enough to show that the right of appeal or the further right of second appeal or the further right of second appeal need not be conferred once the proceedings are referred for adjudication to regular civil courts.

11. It may be useful to refer in this connection that section 2(2) of the civil P.c. before its amendment by Act 104 of 1976 included in its enlarged definition the determination of any question within sec. 47 and the said reference to s. 47 was omitted by the Amending Act. Now the right of appeal in execution matters is taken away. As per the said unamended definition without any specific right of appeal being conferred courts entertained appeals and further appeals in respect of matters determined under sec. 47 as they were declared to be decrees within the meaning of section 2(2) civil P.C. the amended provision of order 21, Rule 58, civil P.C. besides adopting the tenor of section 47 in sub-rule (2), besides declaring such adjudicating orders as decrees also declared the incident or right of appeal shall be attached to it. The only omission is that the further right of appeal was not declared. In view of the established legal position it is unnecessary for the legislature to specifically confer such further right of appeal. The view of ours is supported not only as per the construction of the said provision both on principle and on the authority but also as per the objects and reasons assigned by the parliament while introducing the Bill for amending the code by Act 104 of 1976. The statement and objects of clause 75 of the bill reads as follows:-

'Caluse 75 - Sub-clause (XXV) - rules 58 to 63 with claims and objections in execution. At present the adjudication in execution has limited scope and the matter can be further agitated by way of a regular suit. In order to prvent protraction of litigation, it is thought desirable to have all questions (including questions of title) settled finally in execution proceedings itself. This would be in keeping with the tenor of S. 47 wherein it is provided that all questions arising between parties to the suit ralating to the execution discharge and satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Rules 58 to 63 are being substituted accordingly'.

Further the present provision was introduced as per the 14th 27th and 44th reports of the law commission In 27th report, the law commission of India suggested in Appendix I the proposal to introduce a draft amendment to O. 21, Rule 58 which is enacted without any modification Reason full enquiry into title will be held and suit will be barred under the changed scheme. They also observed at page 198 that since orders under O. 21 R. 58 C.P.C will now be appealable as decrees the appeal shall attract full Court fee and for the purpose of Court fee these orders should be treated as orders under S. 47 Thus the intention of the legislature and adopting the change suggest by the law commission verbtaim would clearly indicate that the provision of Or. 21, R. 58 c.P.C must be an exhaustive remedy as a suit and the orders passed thereon must be treated as decrees without restricting any rights of appeal. We are clearly of the opinion that in the absence embodied in or. 21., rule 58, C.P.C the party of the proceedings under or. 21 rule 58 C.P.C is claearly entitled to the further appeal under the code viz., the second appeal.

12. The matter having arisen in excution the appellant has to file a civil Miscellaneous second appeal as it obtained before the amendment to S. (2) c.P.C Accordingly we hold that the Civil Revision petition is not maintainable as this Court cannot entertain the revision petition in view of the prohibition contained in s. 115 (2) of the civil procedure code, when an appeal lies to this Court. The remedy of the revision petitioner is to file an appeal. We accordingly permits him to convert the revision petition into civil Miscellaneous second Appeal and direct the appeal to be heard by a single judge in usual course. Two weeks time is granted to the petitioner to convert the civil revision petition into civil Miscellaneous second Appel No costs of reference.

13. Order accordingly


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