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Seemakurty Achyutam Vs. Seemakurti Kasi Annapurnamma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberS.R. No. 44783 of 1961
Judge
Reported inAIR1963AP277
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rules 5 and 7
AppellantSeemakurty Achyutam
RespondentSeemakurti Kasi Annapurnamma and ors.
Appellant AdvocateM. Kesava Rao, Adv.
Respondent AdvocateT. Veerabhadrayya, Adv.
DispositionAppeal dismissed
Excerpt:
civil - review - order 47 rules 5 and 7 of code of civil procedure, 1908 - there can be no further appeal to another division bench against the bench of same court - clause 15 of letters patent over-ridden by order 47 rule 5 - appeal not maintainable. - .....as this where the appeal is from one of the judges of the high court to the full court.'the full bench decision of the madras high court in ilr 22 mad 68 (fb) was followed in paramasivan v. ramasami, ilr 56 mad 915: (air 1933 mad 570). the high/courts of bombay and nagpur have taken the view that clause 15, letters patent overrides the provisions contained in section 104, civil p. c. our attention was also drawn to a recent decision of the supreme court in union of india v. mohindra supply co., : [1962]3scr497 which takes the view that the decision in ilr 9 mad 253 is erroneous and that the decision in ilr 22 mad 68 (fb) is correct. having regard to the privy council decision in ilr 9 cal 482 (pc) the, supreme court decision in : [1962]3scr497 and the full bench decision in ilr 22 mad.....
Judgment:

Umamaheswaram, J.

1. The question that arises for consideration is as to whether an appeal lies under Clause 15. Letters Patent against the judgment of Jaganmohan Reddy, J. in C. M. P. No. 7781 of 1961. The appellant herein filed C. M. P. No. 7781 of 1961 to excuse the delay in filing an application under Order 47, Rule 1. Civil P. C. to review the judgment and decree of Subba Rao C. J. and Jaganmohan Reddy, J. in Appeal No. 182 of 1953. The learned Judge held that there were no sufficient reasons to excuse the delay in filing the review application and consequently dismissed the application. As against this judgment of Jaganmohan Reddy J., the Letters Patent Appeal is filed to this Court.

2. Two objections were taken by the office as to the maintainability of the appeal. The first objection was that tinder the provisions of Order 47, Rule 7, Civil P. C. the order of the Court rejecting the review application is not appealable. The second objection was that as the order was passed by Jaganmohan Reddy J. under Order 47 Rule 5, Civil P. C. on behalf of the Bench of which he was a member, the order is not open to appeal. Having carefully heard the arguments of Sri Kesava Rao on behalf of the appellant and Sri T. Veerabhadrayya on behalf of the respondents, we are quite clear that the second objection should prevail.

3. Order 47 Rule 5, Civil P. C. runs as follows: 'Where the Judge or Judges or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when theapplication for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application and no other Judge or Judges of the Court shall hear the same.'

As Subba Rao C. J. has been appointed as a Supreme Court Judge, the application was rightly posted under the terms of Order 47 Rule 5, Civil P. C. before Jaganmohan Reddy, J. Order 47, Rule 7 enacts that an order of the Court rejecting the application shall not be appealable. The order dismissing the application passed by Jaganmohan Reddy J. is on behalf of the Court or the Bench that originally heard the appeal. As against the judgment of the Bench of the Court, there can be no further appeal to another Division Bench of this Court. This view is supported by the decision of the Calcutta High Court in Kailash Chandra v. Revati Mohan, 21 Cal WN 652: (AIR 1917 Cal 88). The appeal was originally heard by Teunon and Smither JJ. The review application was heard by Teunon J. and it was rejected by him sitting alone. As against his judgment an appeal under Clause 15, Letters Patent was filed. Woodroffe J. delivering the judgment on behalf of the Division Bench held that no appeal lay. The learned Judge observed as follows:

'The intention of the Legislature was that an application for review should be entertained by the Judges or Judge who heard the case and no one else. If we were to give effect to the argument before us, the result would be this: It is admitted by the learned vakil who appeared before us that we should be invited to say that Teunon J. erred in not granting the application for review, and that he ought to have granted the application and should have made the Rule absolute. In other words, we should have to consider not merely the judgment of one Judge of this Court, but the judgment of two Judges of this Court of which review was sought by the application before Teunon J.' Following this judgment we hold that the appeal is not maintainable under Clause 15, Letters Patent to a Division Bench. If the contention of Sri Kesava Rao is accepted, it amounts to this viz., that we are entitled to review the judgment of another Bench viz., the judgment pronounced by Subba Rao C. J. and Jaganmohan Reddy J. That is what is prohibited under the terms of Order 47 Rule 5, Civil P.C. The decisions in ' Arayalpurath v. Cheekiladen Ahmed, 2 Ind Cas 204 (Mad), Maksud Mahi v. Secretary of State, 9 Ind Cas 532 (Cal), J.N. Surty v. T.S. Chettiyar Firm, AIR 1927 Rang 20 and In re Chenna Reddi, AIR 1942 Mad 23 have no bearing on this question. What those decisions lay down is that if the review application is allowed by a Single Judge, the appeal should be posted before a Division Bench for being finally disposed of.

4. So far as the first objection that the provisions of Order 47 Rule 7, Civil P. C. override the provisions of Clause 15, Letters Patent is concerned, reliance was placed on the decision of the Madras High Court in Chinnadorai v. R. Doraisundararn, : AIR1954Mad642 . It is no doubt a direct decision supporting the conten-lion of Sri Vcerabhadrayya. Rajamannar C. J. selied on an earlier decision of the Madras High Court in Achaya v. Ratnavelu, ILR 9 Mad 253 as supporting this view. Sri Kesava Rao, the learned advocate for the appellant, contended that the decision in ILR 9 Mad 253 has been overruled by a Full Bench of the Madras High Court in Chappan v. Moidin Kutti, ILR 22 Mad 68 (FB). In the order of reference to the Full Bench, reference is made expressly to the decision in ILR 9 Mad 253. The majority view is to the effect that the provisions of Clause 15, Letters Patent prevail over the provisions of Section 588, Civil P. C. The Full Bench was constituted inasmuch as the learned Judges in ILR 9 Mad 253 did not refer to the direct observations of the Privy Council in Hurrish Chunder Chowdry v. Kali Sundari Debi, ILR 9 Cal 482 (PC) at p. 494. The relevant passage is in the following terms:

'It only remains to observe that their Lordships do not think that Section 588 of Act 10 of 1877, which has the effect of restricting certain appeals, applied to such a case as this where the appeal is from one of the Judges of the High Court to the Full Court.'

The Full Bench decision of the Madras High Court in ILR 22 Mad 68 (FB) was followed in Paramasivan v. Ramasami, ILR 56 Mad 915: (AIR 1933 Mad 570). The High/Courts of Bombay and Nagpur have taken the view that Clause 15, Letters Patent overrides the provisions contained in Section 104, Civil P. C. Our attention was also drawn to a recent decision of the Supreme Court in Union of India v. Mohindra Supply Co., : [1962]3SCR497 which takes the view that the decision in ILR 9 Mad 253 is erroneous and that the decision in ILR 22 Mad 68 (FB) is correct. Having regard to the Privy Council decision in ILR 9 Cal 482 (PC) the, Supreme Court decision in : [1962]3SCR497 and the Full Bench decision in ILR 22 Mad 68 (F:B), the decision of the Madras High Court in : AIR1954Mad642 requires reconsideration. The decision in Ramprasad v. Dagdulal, AIR 1956 Nag 215 directly arose under the provisions of Order 47 Rule 7 Civil P. C. and is opposed to the view taken in : AIR1954Mad642 . As we uphold the objection No. 2 and hold that no appeal lies, we feel it unnecessary to refer the question in this case to a Full Bench as to whether the decision in : AIR1954Mad642 on which reliance is placed by Sri T. Veerabhadrayya, requires reconsideration.

5. In the result, we uphold the objection ofthe office that the appeal is not maintainable.


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