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Fr. Abraham Mathews and anr. Vs. Illani Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M.P. No. 3373 of 1981 in A.F.A. (unnumbered) of 1981
Judge
Reported inAIR1981Ker129
ActsKerala High Court Act, 1959 - Sections 5; Code of Civil Procedure (CPC) , 1908 - Sections 100A and 104
AppellantFr. Abraham Mathews and anr.
Respondentillani Pillai and ors.
Advocates: T.M. Mahalinga Iyer, Adv.
Excerpt:
.....5 (2) of act of 1959 further appeal would lie to division bench of this court from decision of single judge disposing civil miscellaneous appeal (cma) under section 104 of code of 1908 - by virtue of section 100a no further appeal shall lie from order of single judge in appeal - said provision intended to reduce delay in adjudication - legislative intention to be kept while constructing said provision - appeals under section 104 are appeals from interlocutory orders - further appeal against orders in said appeal causes delay - held, further appeal against order in cma barred by section 100. - - therefore the requirements of section 5(ii) of the high court act, 1958 are satisfied. or are the appeals mentioned therein, appeals from appellate decree and appeals from orders passed..........court act, 1958 a further appeal would lie to a division bench of this court from a decision of a single judge disposing of a civil miscellaneous appeal preferred under section 104 of the code of civil procedure, 1908. 2. section 5 of the high court act, 1958 reads:-- '5. appeal from judgment or order of single judge :-- an appeal shall lie to a bench of two judges from-- (i) a judgment or order of a single judge in the exercise of original jurisdiction; or (ii) a judgment of a single judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court; or (iii) a judgment of a single judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate.....
Judgment:

George Vadakkel, J.

1. Thequestion raised herein is as to whether under Section 5(ii) of the Kerala High Court Act, 1958 a further appeal would lie to a Division Bench of this Court from a decision of a single Judge disposing of a Civil Miscellaneous Appeal preferred under Section 104 of the Code of Civil Procedure, 1908.

2. Section 5 of the High Court Act, 1958 reads:--

'5. Appeal from judgment or order of single Judge :--

An appeal shall lie to a Bench of two Judges from-- (i) a judgment or order of a single Judge in the exercise of original jurisdiction; or

(ii) a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court; or

(iii) a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate court, if the Judge who passed such judgment declares that the case is a fit one for Appeal.'

3. The order which was under appeal before the learned single Judge is one passed by the 1st Additional District Judge, Ernakulam in exercise ofhis original jurisdiction, and the judgment of the learned single Judge in appeal is one made by him in exercise of his appellate jurisdiction. Therefore the requirements of Section 5(ii) of the High Court Act, 1958 are satisfied. However we are afraid that this provision is of no avail to the party aggrieved by the judgment in the civil miscellaneous appeal. This is so in view of Sub-section (2) of Section 104 of the Code. The appeal was preferred before the learned single Judge under Section 104 of the Code of Civil Procedure, 1908 which provides for an appeal from the orders specified therein. Sub-section (2) of Section 104 provides that no appeal shall lie from any order passed in appeal under Sub-section (1) of Section 104.

4. The learned counsel for the appellant relies on Section 4 of the Code of Civil Procedure 1908. Under that section in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law 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. The submission is that the provision in Section 5(ii) of the Kerala High Court Act, 1958 is a special or local law in force and that therefore Sub-section (2) of Section 104 in the Code would not take away the right of appeal under Section 5(ii) of that Act. This contention is met by the learned Advocate General, to whom notice was issued, by referring us to Section 100-A in the Code. That provision reads:--

'100-A. No further appeal in certain cases :-- Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment decision or order of such single Judge in such appeal or from any decree passed in such appeal.'

The submission made by the learned Advocate General is that Section 4 in the Code is to be read subject to Section 100A therein extracted above. It is contended by the learned Advocate General that so read no further appeal shall lie from the judgment, decision ororder of a single Judge rendered in an appeal preferred from an order passed by a subordinate court in exercise of its original jurisdiction. According to the learned Advocate General, the appeal, the decision from which no further appeal lies may be one preferred from an 'appellate decree' or any order, that is, an order passed by a court in exercise of its appellate or original jurisdiction.

5. The question that falls for decision is as to what is the meaning of the expression 'where any appeal from an appellate decree or order is heard and decided...' in Section 100A of the Code. Are the appeals mentioned in the aforesaid expression appeals from appellate decree and from appellate orders: or are the appeals mentioned therein, appeals from appellate decree and appeals from orders passed by a court in exercise of its appellate as well as original jurisdiction? If the construction to be placed upon the said expression is the latter one, then no further appeal lies from the decision in the civil miscellaneous appeal by the learned single Judge of this court.

6. Section 100A is a new sectionintroduced in the Code by the Code of Civil Procedure (Amendment) Act, 1976. The notes on Clauses in the Statement of Objects and Reasons of the amending Act so far as Section 100-A is concerned are to the effect that the said section is intended for minimising delay in the finality of adjudication. No doubt, the said notes on clauses in terms say only about further appeal from a second appeal and do not refer to a further appeal from a civil miscellaneous appeal filed under Section 104 of the Code. However, it is necessary to take note of the fact that according to the practice obtained in this court no further appeal has till now been sought to be filed against the decision of a learned single Judge of this court in a civil miscellaneous appeal preferred under Section 104 of the Code of Civil Procedure, 1908. It has also to be remembered that from the decision in a C. M. A. rendered by a court subordinate to this court, no further appeal lies to any court. It cannot be that the Legislature intended that the exercise of jurisdiction under Section 104 of the Code by a learned single Judge of this court is amenable to scrutiny in a further appeal therefrom to a Division Bench and that the exercise of the same jurisdiction by a Courtsubordinate to this court cannot be subjected to further appeal therefrom. In that view and taking into account the fact that Section 100A is intended to minimise the delay in the finality of adjudication, it is necessary to construe the expression in question 'where any appeal ... is heard and decided' as shutting out a further appeal from the decision of a learned single Judge of this court in a civil miscellaneous appeal filed under Section 104 of the Code. We do not think that such a construction is strained or not warranted by the provisions of Section 100A of the Code.

7. The expression 'from an appellate decree or order' may mean from an appellate decree as also from an appellate order; or it may mean from an appellate decree or from any order passed by a court in exercise of its original as well as appellate jurisdiction. Insofar as both the constructions are plausible, it appears to us that the construction which would further the subject of minimising the delay in the finality of adjudications should be adopted. It should be remembered that appeals preferred under Section 104 of the Code are appeals from orders and very often, from interlocutory orders. In most of the cases where such appeals are preferred, the concerned suit itself would be pending. A further appeal from the decision of a learned single Judge to a Division Bench would certainly contribute to delay in the final disposal of the suit or the main action.

8. We may also refer to Section 108 of the Code of Civil Procedure, 1908. The marginal note thereto is as follows:

'Procedure in appeal from appellate decrees and orders' . Though the marginal note comprehensively speaks of 'appellate decree and orders' a scrutiny of that provision would indicate that the section concerns procedure in appeals from appellate decree and procedure in appeals from orders made under the Code or under any special or any local law in which a special procedure is not provided. What is significant is that orders envisaged by Section 108 may be orders passed by the court in exercise of its original jurisdiction or in exercise of its appellate jurisdiction, while decrees contemplated by Section 108 are decrees passed by a court in exercise of its appellate jurisdiction only. In our view the same is the position so far as Section 100A is concerned and the expression 'appellate decree or order' therein would mean a decree passed by a court in exercise of its appellate jurisdiction and any order passed by any court in exercise of its original or appellate jurisdiction.

9. Before parting with this case, it is necessary to notice that steps have been taken to amend Section 5 of the Kerala High Court Act, 1958 by omitting clause (iii) therein. The Kerala High Court (Amendment) Bill, 1980 has been published in the Kerala Gazette (extraordinary) dated 28-3-1980 with that object. This, as stated in the Statement of Objects and Reasons, is in view of Section 100A in the Code. It appears to us that it would be advisable that Clause (ii) in Section 5 is also amended so as to clarify the same in the light of what is stated in this judgment.

In view of what is stated hereinbefore, we hold that no further appeal lies from the decision of the learned single Judge of this Court in C. M. A. No. 267 of 1980.


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