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ittavira Mathai Vs. Varkey Varkey and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1964SC907; 1963(0)KLT1133(SC); [1964]1SCR495
ActsLimitation Act, 1908 - Sections 3 - Schedule - Articles 47 and 142; Travancore High Court Act, 1099 - Sections 11(1); Travancore High Court Ordinance, 1124
Appellantittavira Mathai
RespondentVarkey Varkey and anr.
Cases ReferredMaqbul Ahmed v. Onkar Partap Narain Singh
Excerpt:
property - possession - section 3, schedule to articles 47 and 142 of limitation act, 1908, section 11 (1) of travancore high court act, 1099 and travancore high court ordinance, 1124 - appeal by certificate filed against decree of suit for declaration of title to and recovery of possession of certain properties and for other consequential reliefs - contended that decree in suit on hypothecation bond executed by 'x' in favour of 'y' was a nullity because suit was barred by time - suit was governed by article 142 of act and as respondent have not established that they were in possession within 12 years thereof their suit was barred by time - appellant was not bound by decree in suit as he was not made party thereto - appellant has not raised sufficient plea of limitation by stating.....mudholkar, j. 1. this is an appeal by certificate from the judgment of thetravancore-cochin high court which allowed the appeal preferred by therespondents from the decree of the district court of parur dismissing theirsuit for declaration of title to and recovery of possession of certainproperties and for other consequential reliefs. 2. the relevant facts are as follows : the 23 items of property comprised in the schedule tothe plaint belonged originally to two persons ramalinga iyer ('iyen'as described by the high court) and raman velayudhan. they sold them on6-6-1080 (malayalam era which roughly corresponds to the year 1905) toittiyavira the deceased father of the appellant-defendant no. 1. part of theconsideration for the sale was paid by ittiyavira in cash and for the balance,he.....
Judgment:

Mudholkar, J.

1. This is an appeal by certificate from the judgment of theTravancore-Cochin High Court which allowed the appeal preferred by therespondents from the decree of the District Court of Parur dismissing theirsuit for declaration of title to and recovery of possession of certainproperties and for other consequential reliefs.

2. The relevant facts are as follows :

The 23 items of property comprised in the schedule tothe plaint belonged originally to two persons Ramalinga Iyer ('Iyen'as described by the High Court) and Raman Velayudhan. They sold them on6-6-1080 (Malayalam Era which roughly corresponds to the year 1905) toIttiyavira the deceased father of the appellant-defendant No. 1. Part of theconsideration for the sale was paid by Ittiyavira in cash and for the balance,he executed two hypothecation bonds in favour his vendors on the same date. Oneof the bonds was executed in favour of Raman Velayudhan and the amount securedthereunder was Rs. 308-8-0. In respect of this amount, items of property Nos.3, 5, 14 and 18 were hypothecated with Raman Velayudhan by Ittiyavira. Theother bond was in favour of Ramalinga Iyer and under this bond, Ittiyavirahypothecated with him items Nos. 1, 2, 4, 6-13, 151-7 and 19-23 and also theremaining items, subject to the hypothecation bond in favour of RamanVelayudhan, for securing an amount of Rs. 2,191-8-0. On 3-10-1082, RamalingaIyer assigned his hypothecation bond in favour of one Sankara Rama Iyer('Iyen' as described by the High Court). The parties are in disputeconcerning this transaction. According to one of them, the deed of assignmentEx. V was a sham document and was not intended to take effect while accordingto the other, it was a genuine document.

3. It would appear that Ramalinga Iyer had executed a promissory note infavour of one Anantha Iyer ('Iyen' as described by the High Court).After the death of Ramalinga Iyer, Anantha Iyer instituted a suit against hisson Sankara Subba Iyer ('Iyen' as described by the High Court) forrecovery of the amount thereunder and obtained a decree Ex. VI on 13-11-1088.Treating the deed of assignment executed by Ramalinga Iyer in favour of SankaraRama Iyer as a sham document, Anantha Iyer attached the mortgagee rights ofRamalinga Iyer in the hypothecation bond which had been executed in his favourby Ittiyavira. The rights under this bond were sold in execution and werepurchased by Anantha Iyer at court auction. In a subsequent partition inAnantha Iyer's family, the rights under the hypothecation bond purchased inexecution by him were allotted to his share and that of his brother ManickaIyer ('Iyen' as described by the High Court). Thereafter, these twopersons instituted a suit against Ittiyavira being O.S. No. 59 of 1093 in theDistrict Court at Parur and obtained a decree for realisation of the amountagainst Ittiyavira. The decree-holders subsequently transferred their decree toone Venkiteswara Iyer ('Iyen' as described by the High Court) whichthe latter executed and at the court auction held in execution of that decree,he himself purchased the hypothecated properties which are the properties inthe suit on 27-4-1099. Exhibit C is the sale certificate which was granted tohim by the court. Venkiteswara Iyer eventually obtained possession of theproperties on 12-7-1099.

4. It would appear that Raman Velayudhan also assigned the hypothecationbond which was executed in his favour by Ittiyavira in favour of some personwho eventually sued on the bond and obtained decree in O.S. No. 462 of 1094 inthe court of the Munsiff, Moovattupuzha. In execution of that decree, itemsNos. 3, 5, 14 and 18 were purchased by one Mathai Ouseph the brother of thesecond defendant in the suit on 10-11-1096. In pursuance of this decree, MathaiOuseph obtained delivery of possession of 4 items of property (items 3, 5, 14and 18) on 19-6-1098 and thereafter sold them to defendant No. 2 (wife ofappellant) on 5-12-1104.

5. Even before the institution of O.S. 59 of 1093 by Anantha Iyer and hisbrother, Ittiyavira had executed a sale deed in favour of his son - theappellant before us - whereunder, he conveyed to him all the properties in thesuit. The date on which the sale deed was executed was 8-10-1092. It may,however, be mentioned that the appellant was not made a party to O.S. No. 59 of1093 filed by Anantha Iyer and his brother and the contention raised by therespondents is that the sale in favour of the appellant is not a genuinetransaction and therefore he was not a necessary party to the suit.

6. Ittiyavira died in the year 1107 and on 2-2-1108, Venkiteswara Iyer soldall the suit properties to the plaintiffs respondents. Thereafter, therespondents instituted proceedings under s. 145 of the Code of CriminalProcedure in the court of the Magistrate, First Class, Perumbavoor claimingthat they were in possession of the suit properties, that the appellant wasdisputing their possession and that there was a likelihood of a breach of peacebecause of the attempt of the appellant to 'obstruct' their possession.In these proceedings, the properties were attached and placed in the possessionof the Receiver appointed by the court. Eventually, the court held that theproperties were in the possession of the appellant and ordered that hispossession be maintained until otherwise ordered by a competent Civil Court.The order of the Magistrate was affirmed by the Travancore High Court andthereafter, the Receiver handed over the possession of the properties to theappellant. Consequent upon this order the respondents instituted a suit out ofwhich this appeal arises. Their contention in the suit is that the alleged saleby Ittiyavira in favour of the appellant is a sham transaction, that thereforehe did not obtain any rights thereunder and that consequently it was notnecessary to implead him in O.S. No. 59 of 1093. They also alleged that MathaiOuseph did not obtain any rights under his auction purchase because the saleand delivery of possession in execution of the decree in O.S. No. 462 of 1094were benami for Ittiyavira. For this reason, it was contended that defendantNo. 2 acquired no rights to items 3, 5, 14 and 18 in the plaint. The appellantdisputed the validity of the decree and of the execution proceedings in O.S.No. 497 of 1088 and contended that the decree was obtained and the executionproceedings taken out, fraudulently against Ramalinga Iyer's heirs inasmuch asRamalinga Iyer had assigned the hypothecation bond in favour of Sankara RamaIyer on 3-10-1082. The plea of the appellant thus was that Anantha Iyer did notobtain any rights to the hypothecation bond executed by Ittiyavira in favour ofRamalinga Iyer, and consequently, Venkiteswara Iyer obtained no rights underhis purchase in execution of the decree in O.S. No. 59 of 1093. The entire proceedingswere characterised as fraudulent and not binding on Ittiyavira and the suitproperties. The allegation that the alleged sale in favour of the appellant wasa sham transaction was denied by them as also the other allegations concerningthe purchase of items 3, 5, 14 and 18 by Mathai Ouseph.

7. The trail court dismissed the suit. The High Court, however, reversed thedecree of the trial court except with respect to items 3, 5, 4 and 18 in theplaint. No cross-appeal or cross-objections having been filed by therespondents, the appeal before us is confined to the remaining items providedin the plaint schedule.

8. The first point raised by Mr. Paikedy for the appellant is that thedecree in O.S. No. 59 of 1093 obtained by Anantha Iyer and his brother in thesuit on the hypothecation bond executed by Ittiyavira in favour of RamalingaIyer was a nullity because the suit was barred by time. Even assuming that thesuit was barred by time, it is difficult to appreciate the contention oflearned counsel that the decree can be treated as a nullity and ignored insubsequent litigation. If the suit was barred by time and yet, the courtdecreed it, the court would be committing an illegality and therefore theaggrieved party would be entitled to have the decree set aside by preferring anappeal against it. But it is well settled that a court having jurisdiction overthe subject matter of the suit and over the parties thereto, though bound todecide right may decide wrong; and that even though it decided wrong it wouldnot be doing something which it had no jurisdiction to do. It had thejurisdiction over the subject-matter and it had the jurisdiction over the partyand, therefore, merely because it made an error in deciding a vital issue inthe suit, it cannot be said that it has acted beyond its jurisdiction. As hasoften been said, courts have jurisdiction to decide right or to decide wrongand even though they decide wrong, the decrees rendered by them cannot betreated as nullities. Learned counsel, however, referred us to the decision ofthe Privy Council in Maqbul Ahmed v. Onkar Partap Narain Singh ), and contended that since the court is bound under the provisions ofs. 3 of the Limitation Act to ascertain for itself whether the suit before itwas within time, it would act without jurisdiction if it fails to do so. Allthat the decision relied upon says that s. 3 of the Limitation Act isperemptory and that it is the duty of the court to take notice of thisprovision and give effect to it even though the point of limitation is notreferred to in the pleadings. The privy council has not said that where thecourt fails to perform its duty, it acts without jurisdiction. If it fails todo its duty, it merely makes an error of law and an error of law can becorrected only in the manner laid down in the Civil Procedure Code. If theparty aggrieved does not take appropriate steps to have that error corrected,the erroneous decree will hold good and will not be open to challenge on thebasis of being a nullity.

9. The next point raised by learned counsel is that the present suit wasbarred because it was not instituted within three years of the decision of theMagistrate, First Class, Perumbavoor, holding that the appellant was inpossession of the suit properties. It is no doubt true that the order inquestion was passed on 28-12-1111 while the suit was instituted in the DistrictCourt, Parur on 4-3-1118 and even if limitation is computed with reference tothe date of the order of the High Court dismissing the revision petition thesuit will be said to have been instituted more than three years thereafter. Thefact, however, is that the plaint was originally instituted by the respondentin the court of the Munsif. Moovattupuzha and numbered as original suit No.1296 of 1114. The appellant contended that the valuation of the suit propertymade by the respondents was low and therefore the court appointed aCommissioner for ascertaining their true value. The Commissioner reported thatthe value of the suit properties was Rs. 4,602. The court thereupon passed anorder on 21-2-1118 returning the plaint for presentation to the proper courtinasmuch as the sum total of the value of the reliefs claimed in the plaint wasbeyond its pecuniary limits. Shortly thereafter, the plaint was presented bythe respondents in the District Court at Parur. If the respondents had filedthe suit in the Court of the Munsiff within three years of the date of thefinal order passed in proceedings under s. 145 of the Code of CriminalProcedure but the plaint was returned for presentation to the proper court,they would be entitled under s. 14 of the Limitation Act to the deduction ofthe entire period during which they were prosecuting their suit with duediligence and in good faith in the court of the Munsiff. Had the suit beenbarred by time when it was instituted in the court of the Munsiff, a plea tothat effect could have been taken by the appellant. The defendants do notappear to have done so. It, therefore, follows that the suit must have beenwithin time, when it was instituted in the court of the Munsiff. After theplaint was represented in the District Court at Parur, the appellant filed awritten statement. In para 12 of the plaint the respondents have stated thus :

'The cause of action for this suit has arisenwithin the jurisdiction of this court from 15th Kanni 1113, the date of thefinal order in the summary case.'

10. The only answer to this plea of the respondents which the appellant hasgiven in the written statement is to be found in para 13 of the writtenstatement which reads thus :

'The plaintiffs have no manner of right whatsoever,as alleged in para 10 of the plaint. Even if the plaintiffs had any rights,they have become barred by limitation; and they need not be considered at thisjuncture. The plaintiffs have no right to contend like this in the presentsuit, after the lapse of a long period since the 2nd defendant's brother tookpossession of the properties in execution proceedings. The plaintiffs are barredfrom contending so.'

11. Just below the plaint, the respondents have also stated thus :

'This suit is first filed in MoovattupuzhaMunsiff's Court as O.S. No. 1296/1114. The defendants contended that the plaintproperties are of great value and so a Commissioner was appointed during thetrial of the suit to ascertain the value of the properties. The value wasascertained to be Rs. 4,602/- chs. 14 and so an order was passed from theMoovattupuzha Munsiff's Court on 21-2-1118 stating that the plaint should bereturned and filed in the proper court having jurisdiction to try the case,since the same cannot be tried in the Munsiff's Court. According to that order,the plaint was received back on 30-2-1118. The correct valuation is shown andthe plaint is filed in this court together with the court-fee memosreturned.'

12. There is no reference to these averments in the written statement of theappellant. It would thus be clear that the appellant has not raised asufficiently clear plea of limitation by stating relevant facts and makingappropriate averments. It is apparently because of this that the trial court,though it did raise a formal issue of limitation, gave no finding thereon.Nothing would have been simpler for the trial court than to dismiss the suit onthe ground of limitation if the plea was seriously raised before it. Had theplaint been pressed it would not have been required to discuss in detail thevarious questions of fact pertaining to the merits of the case before it coulddismiss the suit. In the plaint, the respondents claimed that the period oflimitation for the suit commenced on 15-2-1113 when the High Court dismissedthe revision petition preferred by the respondents. The appellant has notstated that under Art. 47 of the Limitation Act, the period of limitation is tobe computed not from the date of the revisional order but from the date of the originalorder. Had he done so, we have no doubt that the respondents would at leasthave placed on record by amending the plaint the date on which the plaint wasinstituted in the Court of the Munsiff. Thus, had the plaint been instituted inthe court of the Munsiff say two months before the expiry of the limitation,the suit would have been within time on 4-3-1118 when the plaint wasre-presented to the District Court, computing the period of limitation evenfrom the date of the original order. Moreover, the appellants could well haveraised the question of limitation in the High Court in support of the decreewhich had been passed in their favour by the trial court. Had they done so, theHigh Court would have looked into the records before it for satisfying itselfwhether the suit was within time or not. The point now raised before us is notone purely of law but a mixed question of fact and law. No specific ground haseven been taken in the petition made by the appellant before the High Court forgrant of a certificate on the ground that the suit was barred by time. In thecircumstances, we decline leave to the appellant to raise the point oflimitation before us.

13. The next contention of the learned counsel is that the suit is governedby Art. 142 of the Limitation Act and as the respondents have not establishedthat they were in possession within 12 years thereof, their suit is barred bytime. This plea of the appellant rests upon another contention which is thatthe delivery of possession to the auction-purchaser in O.S. No. 59 of 1093 wasa sham and fraudulent transaction. The appellant claimed that he was inpossession of these properties at the time of delivery of possession and thathe actually obstructed the delivery of possession to the auction-purchaser.According to him, the Amin who came to effect delivery of possession did notremove the obstruction and therefore what is recorded in Ex. D, the reportpertaining to the delivery of possession, establishes at best the delivery ofmerely symbolical possession. Exhibit D shows on its face that actualpossession of the properties was delivered by the Amin to the auction-purchaserin pursuance of the execution sale. A presumption as to regularity attaches tothe records of the court and such presumption cannot be lightly brushed aside.In addition to the presumption, however, there is the evidence of P.W. 2 - VasuVasu Elayath - who was one of the persons who had attested the report Ex. D. Heswears that the Amin came to the property and effected delivery of possessionto the auction-purchaser. As the High Court has pointed out, he is arespectable person residing in the neighbourhood and that since nothing hasbeen brought out in his cross-examination to discredit him, he deserves to bebelieved. Then there is the evidence of P.W. 3, Meeralava Osakkal Rawther, whowas also present at the time of delivery of possession. Exhibit D states thatthe charges for beating of a drum at the time of delivery of possession werepaid to him (P.W. 3) in token whereof he had put his signature on the exhibit.This witness also swears that actual delivery of possession to theauction-purchaser was effected as stated in Ex. D. His evidence has also beenaccepted by the High Court. We see no reason to take a different view of theevidence.

14. Learned counsel, however, refers us to Ex. J which is a petition dated16-7-1099 filed by the appellant in the District Court, Parur in O.S. No. 59 of1093 and says that this was filed only four days after the date of delivery ofpossession. His contention is that this document would show that the appellantcontinued to be in possession of the properties. What is stated in thatpetition however is this :

'For the reasons stated in the accompanyingaffidavit it is prayed that the Court may be pleased, to declare my possessionand rights etc. over the properties mentioned in the decree in the above suitand to hold that the said properties are not liable to be sold for the saiddecree, and to allow this petition with costs.'

15. It would thus be clear that he has only claimed his right to thepossession of the properties and not that he had obstructed the delivery ofpossession of the properties by the Amin to the auction-purchaser. No doubt,the District Judge has recorded an order thereon to the effect that since theappellant does not say that he was dispossessed his application is not tenable.It seems to us that in the absence of any averments of the kind we have alreadyindicated, the appellant cannot derive any benefit from his application. It wascontended in the High Court and it is contended also before us that theappellant had sent an obstruction petition to the Amin, but he has neitherproduced a certified copy of that petition nor examined the Amin in proof ofwhat he has said. In the circumstances, agreeing with the High Court, we holdthat there can be no doubt that actual delivery of possession of the suitproperties was effected by the Amin to the auction-purchaser on 12-7-1099.

16. No doubt, in the proceedings under s. 145 of the Criminal ProcedureCode, there is a finding to the effect that the appellant was in possession.That, however, means only this, that he was in possession at the date of thepreliminary order made in those proceedings. In view of our finding that actualdelivery of possession was effected to the auction-purchaser on 12-7-1099, itmust be said that the appellant's possession on the date of the preliminaryorder could only have originated in a trespass subsequent to the delivery ofpossession on 12-7-1099, and probably during the disputes by reason of whichthe respondents were compelled to take proceedings under s. 145 of the CriminalProcedure Code. The present suit cannot therefore be regarded as one byauction-purchasers for recovery of property on the strength of an executionsale in their favour but only one for eviction of a person who obtainedwrongful possession of property by trespass after delivery of possession hadbeen effected through court. As we have already pointed out, after the applicationwas made by the respondents under s. 145 of the Code of Criminal Procedure, theMagistrate before whom it was made ordered attachment of property and placed itin the possession of the Receiver who continued to be in possession till thefinal decision of those proceedings. The possession of the Receiver during thisperiod would necessarily ensure for the benefit of the successful party. If,therefore, this period is taken into account the respondents' suit would bewell within time.

17. The next point urged by learned counsel is that Anantha Iyer and hisbrother got no rights by reason of the attachment and sale of the hypothecationbond executed by Ittiyavira in favour of Ramalinga Iyer because long beforetheir purchase, Ramalinga Iyer had assigned that bond to Sankara Rama Iyer. Thecontention of the respondent is that Ex. V. under which the alleged assignmentwas made is a sham document executed by Ramalinga Iyer in order to screen thehypothecation bond from his creditors and to preserve the amount thereunder forhis own benefit. It is clear from the evidence including that of the appellanthimself that Ramalinga Iyer was deeply in debts at the time of the execution ofEx. V. After the execution of Ex. V, Ramalinga Iyer who produced that documentfor registration before the Sub-Registrar himself obtained the document backfrom him. There is no evidence to show that thereafter he handed it over toSankara Rama Iyer or that the latter had accepted the transaction. The majorpart of the consideration recited in Ex. V consisted of amounts alleged to bedue from Ramalinga Iyer to his creditors which the assignee was supposed todischarge. The balance of the consideration was not paid at the time of theexecution of the said document but was said to have been adjusted against theamounts due from Ramalinga Iyer to the assignee Sankara Rama Iyer. There is noevidence to show that any of the debts recited in the document were actuallydue from Ramalinga Iyer or that any money had been received by him from SankaraRama Iyer. The appellant does not even say that he had made enquiriesconcerning the consideration of this document. It is further to be borne inmind that though the document was executed in the year 1082, right uptill now,neither Sankara Rama Iyer nor any person claiming under him has made anyattempt to realise the amounts due under the hypothecation bond. The High Courthas pointed out thus :

'If the assignment was a genuine transaction andwas intended to take effect the assignee would not have foregone the amountunder the hypothecation bond, especially when he had to get such a large amountfrom Ramalinga Iyer and also paid a further consideration as mentioned in Ex.V. That one circumstance, that the assignee has not made any attempt to realisethe amount under the hypothecation bond during the 32 years that had elapsedafter the assignment and before the institution of the present suit amountsalmost to proof positive of the fact that the assignment was not a genuinetransaction and was only a sham document executed for the purpose of screeningthe amount under the hypothecation bond for the benefit of Ramalinga Iyerhimself.'

18. We agree with the observations of the High Court and would add that thiscircumstance as well as the omission of the appellant to examine any persondirectly connected with the execution proceedings would justify an inferencethat the transaction evidenced by Ex. V is not a genuine one and that thedocument itself is sham and bogus. Upon this view, we hold that the sale inexecution of the decree obtained by Anantha Iyer conveyed to theauction-purchaser all the rights of the hypothecation bond executed byIttiyavira in favour of Ramalinga Iyer.

19. The next and the last point urged by learned counsel is that the appellantis not bound by the decree in O.S. No. 59 of 1093, because he was not made aparty thereto. If in fact the assignment of the properties by Ittiyavira infavour of the appellant was a genuine one, the appellant's contention wouldhave to be upheld. The document on which the appellant relies is Ex. XXIX.According to the respondents, this document is sham and bogus and was executedby Ittiyavira for the purpose of screening the property for his own benefit.The trial court held that the document was a genuine one but the High Court hasreversed that finding. At the outset, we have to bear in mind the fact that thealleged sale was by a father in favour of his son and that the son at the dateof that transaction was not shown to have had any independent means of his ownfrom which to provide for the consideration for the sale. According to thedocument, the consideration was Rs. 3,000/- which consisted of Rs. 1,500/- saidto have been paid by the appellant to his father from time to time before thetransaction, Rs. 1,000/- either paid or agreed to be paid by him to his motherin discharge of a debt by his father to her, and Rs. 500/- which had alreadybeen paid to his younger brother in discharge of a debt which the father owedto him. We agree with the High Court that the recitals excite suspicion. Thereis no proof of these payments except the interested testimony of the appellanthimself. In the proceedings under s. 145 of the Criminal Procedure Code, theappellant had stated that he had obtained the necessary funds for obtaining Ex.XXIX from his mother; but in view of a recital in that document that he had topay Rs. 1000/- to his mother, it would appear that he has prevaricated. Thenagain, the younger brother who is said to have loaned Rs. 500/- to theappellant's father was only 14 years of age at the time of execution of thatdocument. It is impossible to believe that a young boy like him could have beenin the position to loan Rs. 500/- to his father. It was urged before us by Mr.Paikedy that what the parties really meant was that the appellant was to paythe sums of Rs. 1,000/- and Rs. 500/- respectively to his mother and youngerbrother so as to discharge his father's liability to pay them. If there was anysubstance in this contention, it should have been advanced before the courtsbelow and not raised for the first time before us. Apart from that it wouldappear that despite the execution of the document, Ittiyavira continued to bethe owner of the properties comprised in it. No doubt, the appellant claims tohave been in actual possession of the properties and possibly he was, but, ashas been pointed out by the High Court, his possession was no more than that ofan agent of Ittiyavira. We, therfore, agree with the High Court that Ex. XXIXwas a sham and bogus document and that the transaction evidenced by it is notgenuine.

20. Having thus failed on all the contentions on merits, learned counsel hassought to urge a new point before us. The point is that the appeal before theHigh Court should have been heard not by a Division Bench of merely two judges,but by a Bench of three judges, as provided in s. 11(1) of the Travancore HighCourt Act. 1099(IV of 1099). Learned counsel admits that the appeal was heardnot by the Travancore High Court but by the High Court of Travancore-Cochinwhich came into being after the merger of the two States of Travancore andCochin. He admits that the Travancore High Court Act, 1099 was repealed byOrdinance II of 1124 which was re-enacted by Act V of 1125; but he says that s.25 of that Act provided that a Full Bench will hear and decide all appeals fromthe decrees of the District Courts in which the amount or value of thesubject-matter is in excess of Rs. 5,000/-. This provision was also repealedbefore the appeal in question was even preferred. According to him, however,the appellants were entitled to prefer an appeal before a Tribunal whichexisted when the suit itself was instituted. The rights of parties to a suit inthe matter of preferring an appeal are governed by the law as it obtained whenthe suit was instituted and, therefore, according to him, as under that law ina suit of that kind an appeal lay before a Bench of three judges, it could beheard only by such a Bench and not one consisting of a lesser number of judges.

21. There are two reasons why this argument cannot be accepted. In the firstplace, the High Court of Travancore was itself abolished as a result of themerger and a new High Court came into being - the High Court ofTravancore-Cochin. The rights of parties to prefer appeals to that High Courtwere governed initially by Ordinance II of 1124 and later by Act V of 1125.These provisions came into being subsequent to the institution of the suit.Therefore, the rights of a person aggrieved by the decision of a suitinstituted prior to the coming into force of Act V of 1125 were only thosewhich were conferred by that Act. A litigant has no right to contend that aTribunal before whom he should have taken an appeal when he instituted thesuit, should not be abolished. The Legislature has full power to enact a law ofthat kind and it is not contended before us that the repeal of the TravancoreHigh Court Act was unconstitutional. It would, therefore, follow that whateverrights may have vested in the party in the matter of filing an appeal wereabrogated by competent legislature. New rights were conferred in place of thosewhich were taken away and it is only the new rights which could be availed of.After the new rights were conferred even they were modified in one respect andthat was with regard to the hearing of certain kinds of appeals by a FullBench. The rights to have the appeal heard by a Full Bench by virtue of theprovisions of Act V of 1125 had never vested in any of the parties to the presentlitigation. Therefore, their abrogation by a later law cannot entitle them tomake a complaint. There is yet another reason why the argument of the learnedcounsel cannot be accepted. That reason is that an appeal lay to a High Courtand whether it is to be heard by one, two or a larger number of judges ismerely a matter of procedure. No party has a vested right to have his appealheard by a specified number of judges. An appeal lay to the High Court and theappeal in question was in fact heard and disposed by the High Court and,therefore, no right of the party has been infringed merely because it was heardby two judges and not by three judges. No doubt in certain classes of cases, asfor instance, cases which involve an interpretation as to any provision of theConstitution, the Constitution provides that the Bench of the Supreme Courthearing the matter must be composed of judges who will not be less than five innumber. But it does not follow from this that the legal requirements in thisregard cannot be altered by a competent body. We therefore overrule thecontention of the learned counsel and hold that the appeal was rightly heardand decided by a Bench of two judges.

22. In the result, we affirm the decree of the High Court and dismiss the appealwith costs.

23. Appeal dismissed.


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