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Gade Subbayya Vs. Raja Kandukuri Venkata Hanumantha Bhushanarao and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad817; (1941)2MLJ125
AppellantGade Subbayya
RespondentRaja Kandukuri Venkata Hanumantha Bhushanarao and anr.
Cases ReferredBritish Coal Corporation v. The King
Excerpt:
.....it is competent, generally speaking, for the provincial legislature to make laws affecting his majesty's prerogative rights. the municipal commissioners for the city of madras (1902)12mlj208 :if it were otherwise, the powers of the provincial legislature to make laws for the peace, order and good government of the province would be unduly hampered. 12. in this connection learned counsel for petitioner laid stress on the absence in the new act of provisions like section 80-a and section 84 (1) (a) of the earlier act, and argued that it must be inferred that parliament did not intend to confer such power on the legislatures in india. the matters enumerated in the various legislative lists in schedule vii to the act and the residual powers of legislation provided for in section 104..........sastri, j.1. these petitions relate to the petitioner's claim to recover his costs, etc., in privy council appeals nos. 99 and 100 of 1933 in which a preliminary mortgage decree for rs. 26,302-3-6 passed in favour of the petitioner was upheld by his majesty in council on the 26th september, 1936.2. the petitioner applied in c.m.p. no. 949 of 1939 in the lower court for a final decree for the balance of the amount due under the preliminary decree after giving credit for amounts paid from time to time by the respondent judgment-debtor, and the latter filed la. no. 506 of 1938 to scale down the decree under the madras agriculturists' relief act (hereinafter referred to as the act). both these applications were dealt with together and the learned subordinate judge finding that sums.....
Judgment:

Patanjali Sastri, J.

1. These petitions relate to the petitioner's claim to recover his costs, etc., in Privy Council Appeals Nos. 99 and 100 of 1933 in which a preliminary mortgage decree for Rs. 26,302-3-6 passed in favour of the petitioner was upheld by His Majesty in Council on the 26th September, 1936.

2. The petitioner applied in C.M.P. No. 949 of 1939 in the lower Court for a final decree for the balance of the amount due under the preliminary decree after giving credit for amounts paid from time to time by the respondent judgment-debtor, and the latter filed LA. No. 506 of 1938 to scale down the decree under the Madras Agriculturists' Relief Act (hereinafter referred to as the Act). Both these applications were dealt with together and the learned Subordinate Judge finding that sums already paid by the respondent amounted to more than twice the principal amount of the debt after adjusting such payments towards all costs decreed to the petitioner including the costs now claimed directed full satisfaction of the decree to be recorded under Section 19 of the Act and dismissed the application for a final decree. From these orders the decree-holder has preferred these civil revision petitions and he has also filed C.M.P. No. 5982 of 1940 in this Court as an alternative remedy praying that the sum of 138-13-11 awarded as costs by His Majesty in Council be paid over to him out of the deposit of Rs. 4,000 made by the respondent as security for costs of the Privy Council appeals. It may be mentioned here that the only dispute between the parties related to the adjustment of costs of the Privy Council appeals under the proviso to Section 19 of the Act.

3. Preliminary objections were raised on behalf of the respondent to the maintainability of the civil revision petitions. The dismissal of the application for a final decree for sale being appealable as a decree, it was contended that C.R.P. No. 1270 was incompetent. This objection must prevail as this Court has held in Subbalakshmi Ammal v. Ramanujam Chetty : (1918)35MLJ552 , and Mummadi Venkatiah v. Boganatham Venkata Subbiah (1921) 42 M.L.J. 51 that the dismissal of an application for a final decree in a suit for sale on a mortgage is appealable as a decree under Section 96 of the Code of Civil Procedure. As regards C.R.P. 656 of 1941 it was urged that the refusal of the Court below to pass a final decree having now become final, the petitioner could not be allowed to contend that a balance was still due to him under the preliminary decree as affirmed by the Privy Council. There is no force in this objection. The Court below did not purport to dismiss the suit as, indeed, it could not do, having regard to the decision of the Privy Council in Lachmi Narain Marwari v. Balmakund Marwari and it would be open to the petitioner, if he succeeded in this civil revision petition, to ask for a final decree to be made for the balance claimed to be due under the preliminary decree, as the refusal to pass a final decree was based solely on the order made under Section 19 of the Act. Furthermore, it is still open to the respondent to apply for a decree in terms of Order 34, Rule 5(1) of the Code of Civil Procedure, and the suit must be considered to be pending till a final decree under either Sub-rule (1) or Sub-rule (3) of Order 34, Rule 5 is passed. We therefore overrule the preliminary objection.

4. Turning now to the merits, the petitioner raised two contentions, namely, first, that the Privy Council was not a 'Court' and its decision was not a decree properly so called and did not therefore fall within the purview of the Act; and secondly, assuming that the order of His Majesty in Council was a decree of a Court within the meaning of Section 19 of the Act, the order being one made in exercise of His Majesty's prerogative, the Provincial Legislature had no power to pass any law affecting such order. As these contentions involved questions of general importance in which the Provincial Government might be interested, we directed notice of the petitions to be issued to the Advocate-General and we had accordingly the advantage of hearing his arguments.

5. On the first point, it is no doubt true that in the case of an appeal to the Privy Council, the Judicial Committee make a report to His Majesty containing their recommendations regarding the disposal of the case and the final order disposing of the appeal is that of His Majesty in Council. But this form is a survival from the past history of the status and function of the Privy Council, and its preservation, doubtless due to the peculiar tendency which has often marked British constitutional changes of masking them by the retention of the original forms, should not be allowed to obscure the real character and function of the Judicial Committee after its reorganisation by the Judicial Committee Acts of 1833 and 1844. As observed by Field, J., in Gopal Sahu Deo v. Joyram Tewary I.L.R.(1881) Cal. 620 .

The essentials of a Court are (i) the actor, or plaintiff; (ii) the reus, or defendant; and (iii) the judex, or judicial power, which ascertains the facts, applies the law, and, if injury has been done, affords a remedy by its officers or otherwise. An examination of the statutes which regulate the Judicial Committee of the Privy Council will show that this tribunal possesses all these essential elements of a Court.

6. The same view was expressed by their Lordships of the Privy Council in British Coal Corporation v. The King (1935) A.C. 500 where after examining the provisions of the statutes referred to above, their Lordships observed:

It is clear that the Committee is regarded in the Act as a judicial body or Court, though all it can do is to report or recommend to His Majesty in Council, by whom alone the Order in Council which is made to give effect to the report of the Committee is made.

But according to constitutional convention it is unknown and unthinkable that His Majesty in Council should not give effect to the report of the -Judicial Committee, who are thus in truth an appellate Court of law, to which by the statute of 1833 all appeals within their purview are referred.

7. The petitioner's learned Counsel however placed reliance upon the observation in Kristo Kinkur Roy v. Rajah Burrodacaunt Roy (1872) 14 M.I.A. 465 where their Lordships say that an Order in Council is 'not properly speaking the decree of a Court but an order of Her Majesty made on the recommendation of a Committee of Her Privy Council.' But this was said with reference to the forms and procedure employed by their Lordships and it was indicated that in substance an Order in Council did no more than 'prescribe what shall be the final decree in the cause leaving it to be executed by the ordinary process of the Courts in India.' It is worthy of note that Order 45, Rule 15 which prescribes the procedure to enforce orders of the King in Council speaks of 'the decree passed or order made on appeal to His Majesty.' We have therefore no hesitation in rejecting this contention of the petitioner.

8. The next question relates to the competency of the Provincial Legislature to make laws affecting a decree or order passed on appeal to His Majesty. It was said that an order of His Majesty in Council was an act done in exercise of His prerogative right and the Provincial Legislature had no power to affect prerogative rights by legislation. In the first place, it is somewhat difficult to see how any royal prerogative can be said to be affected by a provision, which (so far as it is material here) enacts that a judgment-debtor, if he is an agriculturist, shall be entitled to have all payments made or amounts recovered in respect of any decree applied first in payment of the costs decreed to the creditor. In doubting the correctness of the view adumbrated in some decisions in India that an order of His Majesty in Council was not subject to any law of limitation on the ground that, such an order being an act done by virtue of Royal prerogative, it was not competent to the Indian Legislature to prescribe a time limit, for its enforcement, their Lordships observed in the case last mentioned:

It (the Order in Council) may well thus finally ascertain and define the rights of the parties without relieving them from the obligation imposed upon them by the general law of enforcing those rights with due diligence--a matter with which the prerogative has no concern.

9. It seems to us for a similar reason that the prerogative has no concern with the curtailment or modification of the rights of parties by a local law although such rights may have been ascertained and defined by an order of His Majesty in Council.

10. However that may be, we are clearly of opinion that it is competent, generally speaking, for the Provincial Legislature to make laws affecting His Majesty's prerogative rights. There was some difference of opinion under the Indian Councils Act, 1861, as to whether a Provincial Council had power to affect the prerogatives of the Crown, although this Court held that it had such power after an elaborate examination of the relevant provisions of that Act--see Bell v. The Municipal Commissioners for the City of Madras : (1902)12MLJ208 . The matter was however placed beyond doubt by Section 84 (1) (a) of the Government of India Act, 1915, as amended by the Government of India (Amendment) Act, 1916, and it was settled law before the present Constitution Act was passed in 1935 that a local Legislature had power to make laws affecting the prerogatives of the Crown. This power was of considerable practical importance, for, as observed by Bhashyam Aiyangar, J., in Bell v. The Municipal Commissioners for the City of Madras : (1902)12MLJ208 :

If it were otherwise, the powers of the Provincial Legislature to make laws for the peace, order and good government of the province would be unduly hampered. There is no small degree of uncertainty as to the extent of the prerogative of the Crown in India and the validity of no few enactments of the Provincial Legislature will be called into question in Courts on the ground that they directly or indirectly affect the royal prerogative.(p. 480).

11. It would indeed be odd if the new Constitution Act which was passed in response to much political agitation in the country aimed at securing substantially enlarged powers to the Legislatures in India should be found in practice to have deprived them of an important power which they had previously possessed. We see no reason to suppose that this could have been the intention of Parliament and we are convinced on an examination of the relevant provisions that such is not their effect. Section 99 provides that:

Subject to the provisions of this Act, the Federal Legislature may make laws for the whole or any part of British India or for any Federated State and a Provincial Legislature may make laws for the Province or any part thereof,

and Section 100 defines and delimits the respective jurisdictions of the Federal and the Provincial Legislatures with reference to the subject-matter of legislation. The legislative authority thus conferred is subject only to 'the provisions of this Act' and is otherwise unrestricted. There is no provision which excepts generally the prerogatives of the Crown. It was suggested that Section 110, Clause (b), Sub-clause (i) saving inter alia 'the sovereignty .... of the Crown in any part of India' was such a provision, as a law affecting the prerogative of the Crown affected its 'sovereignty'. We cannot agree that this term imports the prerogative rights of His Majesty. Prerogative is no doubt an attribute of sovereignty but is not the same thing as territorial sovereignty which alone is saved. On the other hand, we find Sub-clause (iii) of the same provision expressly saving a particular prerogative right of His Majesty, namely, the right to grant special leave to appeal from any Court. The conclusion is therefore irresistible that it is within the competence of the Legislatures in India to make laws derogating from other prerogative rights except of course in so far as such prerogatives may be comprised in matters specially excepted.

12. In this connection learned Counsel for petitioner laid stress on the absence in the new Act of provisions like Section 80-A and Section 84 (1) (a) of the earlier Act, and argued that it must be inferred that Parliament did not intend to confer such power on the Legislatures in India. We cannot attach any significance to the omission of these provisions in the present Act which discloses a totally different scheme with its practically exhaustive enumeration of legislative powers and their distribution among the Central and Provincial Legislatures on a Federal basis. The matters enumerated in the various Legislative Lists in Schedule VII to the Act and the residual powers of legislation provided for in Section 104 cover the entire field of Governmental activities compendiously described as 'peace and good government' in Section 80-A of the Act of 1919, while Section 84 (1) (a) of that Act was, as pointed by Bhashyam Aiyangar, J., in Bell v. The Municipal Commissioners for the City of Madras : (1902)12MLJ208 , really superfluous and came to be inserted only ex majore cautela for reasons connected with the history of constitutional development in this country. It is a well established principle that within the limits of subject and area assigned to a Legislature by the Imperial Parliament, its powers to make laws are as supreme and plenary as those of Parliament itself--The Queen v. Burah (1878) 3 A. C. 889 Hodge v. The Queen (1883) 9 A.C. 117 and Croft v. Dunphy (1933) A.C. 156. In this connection the weighty observations of their Lordships in the British Coal Corporation's case (1935) A.C. 500 already referred to, should also be borne in mind:

In interpreting a constituent or organic statute such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted. This principle has been again clearly laid down by the Judicial Committee in Edwards v. Attorney-General for Canada (1930) A.C. 124 'Their Lordships do not conceive it to be the duty of this Board--it is certainly not their desire--to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs'.

13. Another contention was based upon the decision of this Bench in Santhappa v. Sowrappa Holiappa Bulla C.M.A. No. 424 of 1940 1 M.L.J. 57, where it was held that the term ' decree' in Section 19 of Act IV of 1938 must be taken to refer to decrees passed by Courts in this Presidency. It was argued that the Privy Council sitting and functioning in London was a foreign tribunal and Section 19 could not therefore apply to decrees passed on appeal thereto. This argument proceeds upon a misapprehension of the effect of that decision. The ratio decidendi there was that the procedure provided by Section 19 was inapplicable to decrees passed outside this province as decrees had to be scaled down under that section by Courts which passed them, and the Legislature of this province could not make laws directing Courts in other provinces to scale down decrees passed by them. The position however is entirely different in respect of a decree passed on an appeal to the Privy Council taken from this province, as the application to scale down such decree has to be made to the Court of first instance, that is a Court of this Province (Explanation to Section 20 of the Act read with Section 37 of the Civil Procedure Code). Nor is it correct to regard the Privy Council as a foreign tribunal in relation to appeals preferred from Courts of this Province. The observations of their Lordships in the Canadian case already referred to British Coal Corporation v. The King (1935) A.C 500 are here pertinent:

It is said that this class of appeal is a matter external to Canada; emphasis is laid particularly on the fact that the Privy Council sits in London . . . But even so the reception and the hearing of the appeal in London is only one step in a composite procedure which starts, from the Canadian Court and which concludes and reaches its consummation in the Canadian Court. What takes place outside Canada is only ancillary to practical results which become effective in Canada. And the appeal to the King in Council is an appeal to an Imperial, not a merely British, tribunal.

14. It only remains to consider C.M.P. No. 5982 of 1940 and the argument advanced in connection therewith that the petitioner is, in any case, entitled to payment of the costs claimed out of the deposit of Rs. 4,000 made by the respondent in this Court in P. C. A. No. 99 of 1933. The said deposit was made under 0.45, Rule 7, Civil Procedure Code, which provides that the applicant shall within the time specified 'furnish security in cash or in Government securities for the costs of the respondent.' It is thus clear that the deposit in question was made merely by way of security for any liability for costs which might arise in case the appeal failed. Such liability having arisen and been discharged by appropriation of amounts already received in respect of the decree as provided for in Section 19 of the Act, the petitioner can no longer claim any payment and the deposit will have to be returned to the respondent.

15. In the result, all the petitions fail and are dismissed. The petitioner will pay the costs of the first respondent in C.R.P. No. 656 of 1941. Following the Federal Court practice referred to in Subramanian Chettiar v, Muthusami Goudan (1941) 1 M.L.T. Suppl. 1 we allow no costs to the Advocate-General. We do not think that the case involves any substantial question of law as to the interpretation of the Government of India Act and we decline to certify that it is a fit case for appeal to the Federal Court.


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