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Benares Bank Ltd. Vs. Rajnath Kunzru and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All374
AppellantBenares Bank Ltd.
RespondentRajnath Kunzru and ors.
Excerpt:
- - it was distinctly held in the case of chiranji lal v. it is difficult to hold that the legislature used two different words to convey precisely the same idea.order1. this is an application for leave to appeal to his majesty in council. there were two cross-appeals filed in this court which were connected and disposed of by one judgment, but separate decrees were prepared in the two cases. leave to appeal to his majesty in council has already been granted an 'the defendant's appeal which was allowed and the decree of the court below was reversed and the claim with regard to the subject-matter in dispute in that appeal disallowed. the decree in the plaintiff's appeal was one of dismissal of the appeal, and in that sense an affirmance of that part of the decree of the first court which had dismissed the plaintiff's claim in part. but the operative order of the high court was that the defendant's appeal should be allowed and the decree of the.....
Judgment:
ORDER

1. This is an application for leave to appeal to His Majesty in Council. There were two cross-appeals filed in this Court which were connected and disposed of by one judgment, but separate decrees were prepared in the two cases. Leave to appeal to His Majesty in Council has already been granted an 'the defendant's appeal which was allowed and the decree of the Court below was reversed and the claim with regard to the subject-matter in dispute in that appeal disallowed. The decree in the plaintiff's appeal was one of dismissal of the appeal, and in that sense an affirmance of that part of the decree of the first Court which had dismissed the plaintiff's claim in part. But the operative order of the High Court was that the defendant's appeal should be allowed and the decree of the Court below modified and the suit dismissed in toto.

2. The question which arose in the plaintiff's appeal was to a large extent one of fact. Learned Counsel for the plaintiff concedes that no substantial question of law arises in this case and that therefore the case does not fulfil the requirements of Section 110, Civil P.C. He however contends that the decision of the Court below has not been affirmed inasmuch as the cross-appeal was allowed and the decree of the trial Court was modified and the whole claim was dismissed. It was distinctly held in the case of Chiranji Lal v. Behari Lal 16 A.L.J. 864, that in a case of two cross-appeals there is no right of appeal to the Privy Council in one appeal in which the appeal is dismissed, merely because the cross-appeal has been allowed. But subsequent to the decision of that case their Lordships held in Annapurna Bai v. Rup Rao , that where a widow claiming maintenance allowance was allowed only a part of the amount claimed by her by the first Court and that amount was increased in her favour by the High Court, she had a right to appeal to His Majesty in Council for claiming the balance of the original amount put forward in the plaint. This case has, of course, bean followed by most of the High Courts in India.

3. In the case of Nathu Lal v. Raghubir Singh 1931 A.L.J. 968, a Full Bench of this Court has held that where a cross-objection has been allowed, but the appeal itself has been dismissed, the decision is not one of affirmance and that there is an appeal to their Lordships of the Privy Council as of right. As regards cross-appeals, the view expressed by this Court has been followed by the Lahore High Court in Asa Ram v. Kishen Chand 11 Lah. 405, corresponding to 1930 A.I.R. Lah. 554. The Madras, Calcutta Bombay High Courts have gone even a step further, see Ramanathan Chetti v. Subramanian Chetti 1926 A.I.R. Mad. 1024, Narendra Lal Das v. Gopendra Lal Das : AIR1927Cal543 Kapurji Magniram v. Pannaji Debi Chand 1929 A.I.R. Bom. 359.

4. On the other hand, the Patna High Court in the case of Jamuna Prasad Singh v. Jagarnath Prasad 1929 A.I.R. Pat. 561, has expressed a contrary opinion, and has referred to the doubt expressed by Rankin, C.J., of the Calcutta High Court, as to the soundness of the course of decisions in his Court. In the Full Bench decision of this Court, referred to above, the question did not arise and was therefore left open, but one of the learned Judges pointed out the anomaly which would arise if in the case of a cross-objection being allowed, an appeal is admitted, but no appeal is admitted if a cross-appeal is allowed. We think that the question is of sufficient importance and in view of the conflict of opinions it requires consideration, We accordingly direct that the case be laid before the Hon'ble C.J., for the constitution of a Full Bench to decide the following point. Whether the applicant is entitled to appeal as of right.

Sulaiman, C.J.

5. This is an application by the plaintiff for leave to appeal to His Majesty in Council. The suit was for recovery of a large sum of money alleged to be due on hundis and as money advanced against certain goods which were shipped. The Court of first instance decreed the claim so far as the amount due on the hundis was concerned and as regards the other claim confined the decree to a sum of 579 and dismissed the rest of the claim amounting to about Rs. 20,000. Two separate cross-appeals were filed in the High Court. One on behalf of the plaintiff against the dismissal of his claim and the other by the defendants in respect of that part of the claim which was decreed. These two appeals were separately numbered, but were connected and heard together and disposed of by one judgment. Two separate decrees were prepared in the two cases. The value of the subject-matter in dispute in the defendants' appeal has been found to be in excess of Rs. 10,000 and leave has accordingly been granted. The value of the subject-matter in dispute in the plaintiff's appeal was also more than Rs. 10,000, but the appeal was dismissed.

6. It is conceded by counsel for the Bank that no substantial question of law arises in this case and 'that no appeal would lie unless it can be considered that the decree of the High Court is not one of affirmance or that the appeal is otherwise a fit one to go up to His Majesty in Council. The learned advocate for the plaintiff Bank contends before ;us that inasmuch as the decree of the Court below has not been affirmed, but has been varied in consequence of the cross-appeal having been allowed, the plaintiff has a right of appeal to His Majesty in Council even as regards the decree dismissing the plaintiff's appeal. In Chiranji Lal v. Behari Lal 1918 All. 245, Richards, C.J., and Tudball, J., laid down that where there are cross-appeals filed in the High Court on behalf of the plaintiff and the defendant and the defendant's appeal is decreed and the decree of the Court below varied, but the plaintiff's appeal is dismissed, the plaintiff cannot be allowed to appeal against the judgment of the High Court reversing the first Court's decree.

7. This case has been followed by the Lahore High Court in Asa Ram v. Kishen Chand 1930 Lah. 554. In one case the Madras High Court went a step further and held that even where there is an appeal and a cross-objection and the cross-objection is allowed, the appellant is not entitled to appeal to His Majesty in Council from, the decree dismissing his appeal : see Ramananthan Chetti v. Subramanian Chetti 1926 Mad. 1024. But this view has not been, strictly speaking, followed in a later case of that Court in Shunmuga Sundara Mudaliar v. Ratnavelu Mudaliar 1929 Mad. 429, where when an appeal and a cross-objection were disposed of together it was considered that there was only one decree which had varied the decree of the first Court.

8. So far as the question of an appeal and a cross-objection is concerned a Full Bench of this Court in Nathu Lal v. Raghubir Singh 1932 All. 65, has recently laid down that where the cross-objection is allowed the appellant has a right of appeal to His Majesty in Council because the decree of the Court below is varied and the decision is not one of affirmance. Two members of the Bench were inclined to think that cross-objections, stand on a different footing from cross-appeals, and the other learned Judge-pointed out that there would be a clear anomaly if such a distinction were recognized. On the other hand, the Patna. High Court in Jamuna Prasad Singh v. Jagarnath Prasad Bhawat 1929 Pat. 561, has laid down that where there are two-cross-appeals one of which is allowed, there is a right of appeal to His Majesty in Council even in the other cross-appeal. The learned Judges have based their decision principally on the pronouncement of their Lordships of the Privy Council in Annapurna Bai v. Ruprao 1925 P.C. 60.

9. The question for our consideration is. whether the last mentioned Privy Council case has by implication overruled the previous decision of this Court. In Annapurna Bai v. Ruprao 1925 P.C. 60, the plaintiff, claiming to be the adopted son of the deceased owner, brought a suit for possession against the surviving widow and also another claimant who professed to have been adopted earlier. The defendants denied the plaintiff's, adoption, set up the adoption of defendant 2 and defendant 1 further claimed a maintenance allowance with a charge on the estate. The trial Court holding that the plaintiff's adoption was. proved and the alleged adoption of defendant 2 not proved, decreed the claim but allowed maintenance to defendant 1 less than what she had claimed. Both the defendants appealed to the Court of the Judicial Commissioner and the decree of the trial Court was substantially affirmed, but was modified to the extent of increasing the maintenance allowance given to the widow. Both the defendants appealed to their Lordships of the Privy Council and raised the whole question in controversy in the suit. It was held by their Lordships that inasmuch as, the decree of the Judicial Commissioner was not one of affirmance of the trial Court, they could appeal as of right. There was only one decree passed by the Judicial Commissioner and that decree-had certainly varied the decree of the trial Court, though in favour of the appellants themselves.

10. The case of two cross-appeals is not exactly identical with an appeal and a cross-objection. In the case of an appeal and a cross-objection there is, only one judgment delivered and only one decree is prepared by the Court which embodies the adjudication in both the appeal and the cross-objection. On the other hand, under Order 41, Rule 35 the decree of the appellate Court has to contain the number of the appeal; the names and description of the appellant and the respondent and a clear specification of the relief granted or other adjudication, made. If there are two cross-appeals pending in the High Court two decrees have to be prepared giving all these particulars.

11. In the leading case of Tassadug Rasul Khan v. Kashi Ram 25 All. 109, their Lordships have made it clear that the word 'decision' in Section 596, old Civil P.C. corresponding to Section 110 of the new Code, has not the same meaning as the word 'judgment' as defined, but that it means the decision of the suit by the Court. Obviously therefore the word 'decision' does not mean the reasoning or the basis of the judgment, but the operative portion of the judgment which is ultimately incorporated in the decree that is prepared. Under Section 2(2) of the Code, a decree is the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It follows that when two cross-appeals are separately disposed of the matters in controversy in the two appeals are distinct and therefore the adjudications of such matters are also distinct and separate. The dismissal of the plaintiff's appeal was therefore an affirmance of the adjudication made by the first Court so far as the matter in controversy in the plaintiff's appeal was concerned, whereas the allowing of the defendants' appeal was a variation of the adjudication of the first Court so far as the matter in controversy in that appeal was concerned. It is also possible that some times the array of parties in two cross-appeals may not be absolutely identical and the two appeals have therefore to be treated as two separate cases. It therefore seems to me that from the mere fact that a cross-appeal has been allowed and the adjudication varied so far as the matter in controversy in that appeal is concerned, it does not follow that the decision in the other appeal which is dismissed is not one of affirmance. I am of the opinion that the ruling of their Lordships of the Privy Council in Annapurna Bai v. Ruprao 1925 P.C. 60, does not even by implication overrule the decision in Chiranji Lal v. Behari Lal 1918 All. 245.

12. It is unnecessary to point out that in some later cases the Calcutta and-Bombay High Courts have even, expressed the view that in spite of the ruling in Annapurna Bai v. Ruprao 1925 P.C. 60, if the variation is not substantial there is no right of appeal. That view is doubtful, and. it is not necessary to express any opinion on it. I would accordingly hold that the applicant is not entitled to appeal to His Majesty in Council as. of right. The case is not otherwise: a fit one for appeal.

Bennet, J.

13. I concur with the opinion expressed by the learned Chief Justice.

Niamatullah, J.

14. I am of the same opinion. The question is whether the decree passed by this Court dismissing the plaintiffs appeal affirmed the 'decision' of the trial Court. The 3rd paragraph of Section 110, Civil P.C. in which the word 'decision' occurs, also contains the word 'decree' in the first line. It is difficult to hold that the Legislature used two different words to convey precisely the same idea. In my opinion the word 'decision' on the one hand means something which differs from 'judgment' and on the other hand, it does not mean 'decree.' In Tassadug Rasul Khan v. Kashi Ram (1903) 25 All. 109, their Lordships did not hold that the word 'decision' should be taken to be equivalent to 'decree.' They merely held that 'decision' is-not judgment. It seems to have been the view of their Lordships that the word 'decision' occurring in the corresponding section of the Code of 1882, means 'decision of the suit'. There is nothing in Annapurna Bai v. Ruprao 1925 P.C. 60, to indicate that in that case their Lordships held, otherwise. It is true, the contention put forward on behalf of the appellant was that the decree as distinguished from the judgment of the trial Court, was interfered with on appeal by the High Court. The judgment of their Lordships is brief, and in upholding the appellant's contention their Lordships have not made any observation which might show that the word 'decision' should be taken in the same sense in which the word 'decree' is defined in the Civil Procedure Code. The view taken by this Court in Chiranji Lal v. Behari Lal 1918 All. 245, does not appear to me to have been in any way affected by the two Privy Council cases referred to above. They did not hold that the word 'decision' in Section 110 is equivalent to 'judgment.' Apparently they took the word in the same sense in which their Lordships used it in Tassaduq Rasul Khan v. Kashi Ram (1903) 25 All. 109. In my opinion the decision of the suit, so far as it is the subject-matter of the proposed appeal to the Privy Council, is meant by the word 'decision' in Section 110, and not the decision of the whole suit.

15. It seems to me that, even if the word 'decision' be taken to mean 'decree', as defined in the Civil Procedure Code, the position is not materially different. A 'decree' does not mean the document described as such. It means the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.' If there are several distinct controversies in the suit and the decision of the Court is embodied in one document, described as a decree, the adjudication with regard to each matter in controversy is a decree in itself. In that sense one document, described as a decree, may contain several adjudications on several distinct matters and may amount to several 'decrees.' In this view, if the decree of this Court in the plaintiff's appeal affirmed the trial Court's adjudication in respect of the controversy relating to certain advances of money against goods shipped to England by Patni should, be taken to be a decree, which is distinct from the decree passed toy the trial Court as regards the controversy relating to another distinct matter. For these reasons, I am of opinion that the decree against which the applicant proposes to appeal to the Privy Council affirms the decision of the Court below and the applicant is therefore not entitled to leave as of right.


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