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Vasudeva Upadyaya Vs. Visvaraja Thirthasami and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1897)ILR20Mad407
AppellantVasudeva Upadyaya
RespondentVisvaraja Thirthasami and anr.
Cases ReferredHurrish Chunder Chowdhry v. Kalisunderi Debi I.L.R.
Excerpt:
letters patent, section 15 - civil procedure code--act xiv of 1882, section 588 - - justice shephard was passed in an appeal under section 588, code of civil procedure, and the last paragraph of that section provides that 'orders passed in appeals under this section shall be final' in reply it is contended that the section does not apply to a case like the present where a judge of the high court sitting alone makes the order, and that, by virtue of section 15 of the letters patent, an appeal does lie notwithstanding the provisions in section 588. in a word, the question is whether the right of appeal given by section 15 of the letters patent against an order of a single judge is, or is not, subject to the limitations on appeals prescribed by the code of civil procedure. 3. the..........suit no. 279 of 1893, remanding a suit to the court of first instance under section 562, code of civil procedure, for disposal on the merits.2. a preliminary objection is raised that no appeal lies inasmuch as the order of mr. justice shephard was passed in an appeal under section 588, code of civil procedure, and the last paragraph of that section provides that 'orders passed in appeals under this section shall be final' in reply it is contended that the section does not apply to a case like the present where a judge of the high court sitting alone makes the order, and that, by virtue of section 15 of the letters patent, an appeal does lie notwithstanding the provisions in section 588. in a word, the question is whether the right of appeal given by section 15 of the letters patent.....
Judgment:

Benson, J.

1. This is an appeal under Section 15 of the Letters Patent against an order of Mr. Justice Shephard, dismissing an appeal against an order of the District Judge of South Canara, in Appeal Suit No. 279 of 1893, remanding a suit to the Court of First Instance under Section 562, Code of Civil Procedure, for disposal on the merits.

2. A preliminary objection is raised that no appeal lies inasmuch as the order of Mr. Justice Shephard was passed in an appeal under Section 588, Code of Civil Procedure, and the last paragraph of that Section provides that 'orders passed in appeals under this Section shall be final' In reply it is contended that the Section does not apply to a case like the present where a Judge of the High Court sitting alone makes the order, and that, by virtue of Section 15 of the Letters Patent, an appeal does lie notwithstanding the provisions in Section 588. In a word, the question is whether the right of appeal given by Section 15 of the Letters Patent against an order of a single Judge is, or is not, subject to the limitations on appeals prescribed by the Code of Civil Procedure. That the right is subject to such limitations was decided in Achaya v. Ratnavelu I.L.R. 9 Mad. 253 which was followed in the cases of Rajagopal in re I.L.R. 9 Mad. 447 and in Sankaran v. Raman Kutti I.L.R. 20 Mad. 152 but the correctness of those decisions was recently doubted mainly in consequence of a remark of the Privy Council in the case of Hurrish Chunder Chowdhry v. Kalisunderi Debi I.L.R. 9 Cal. 482 and the question was referred by a Division Court of which I was a member for the decision of the Full Bench. The present appeal was allowed to stand over pending the decision of the Full Bench. The case was ably argued before the Full Bench, but no judgment was delivered, as the case was otherwise disposed of.

3. The appellant's Vakil, therefore, now desires that in the present case the same question may be referred to a Full Bench, but the arguments used before the Full Bench and the consideration, which I have since been able to give the matter, have satisfied me that the decisions of this Court are right, and that there is no ground for referring the question.

4. Much of the discussion which has centred round the meaning of Section 15 of the Letters Patent considered by itself, and also with regard to its effect when read in conjunction with Section 588, Code of Civil Procedure, has concerned itself with the meaning of the word 'Judgment' in Section 15. It is admitted on all hands that if an order made by a single Judge of this Court does not fall within the meaning of the word 'judgment' as used in Section 15 no appeal will lie under the Letters Patent from that order. this Court has, however, in the reported eases, given a very wide meaning to the word ' judgment ' in that Section, and I will assume that the order of Mr. Justice SHEPHRAD in the present case is a 'judgment' within the meaning of Section 15.

5. In order to apprehend the subject clearly it is necessary to refer briefly to the statutes and Letters Patent by which the High Court was constituted, and from which it derives its powers. The High Court Act, 24 and 25 Vict., Ch. 104, gave Her Majesty authority to establish a High Court at Madras, to consist of a Chief Justice and as many Judges not exceeding fifteen, as Her Majesty might, from time to time, think fit to aippoint. Section 9 of that Act gave the High Court such original and appellate jurisdiction and authority, as Her Majesty by Letters Patent might grant and direct, subject, however and without prejudice, to the legislative powers of the Governor-General of India in Council, which powers were conferred by the Indian Councils Act 24 and 25 Vict., Ch. 67, the 22nd Section of which empowers the Governor-General to make laws and regulations for all Courts of Justice whatever in India, thus, of course, including the High Courts. Section 13 of the High Court Act enacts that subject to any laws or regulations which may be made by the Governor-General in Council the High Court may, by its own rules, provide for the exercise of its original or appellate jurisdiction, by one or more Judges, or by Division Courts constituted by two or more Judges.

6. Such rules have been framed by the High Court, and it is under the rules so framed that a single Judge of the Court passed the order which has given rise to this appeal.

7. In pursuance of the authority given by Section 9 of the High Court Act, Her Majesty issued the amended Letters Patent of 1865, Section 36 of which deals with the powers of single Judges and Division Courts. It declares that 'any function which is hereby directed to be performed by the said High Court of Judicature at Madras in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof, appointed or constituted for such purpose under Section 13' of the said High Court Act, and the Section further provides for a final decision when a Bench of two or more Judges are divided in opinion.

8. Section 15 enacts that ' an appeal shall lie to the said High Court of .Judicature at Madras from the Judgment (not being a sentence or order passed or made in any criminal trial) of one Judge of the said High Court, or of one Judge of any Division Court pursuant to Section 13 of the said recited Act; and that an appeal shall also lie to the said High Court from the judgment, not being a sentence or order as aforesaid, of two or more Judges of the said High Court, or of such Division Court, whenever such Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges of the said High Court at the time being; but that the right of appeal from other judgments of Judges of the said High Court, or of such Division Court, shall be to us, our heirs or successors, in our or their Privy Council, as hereinafter provided.'

9. Section 44 declares that 'all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Council exercised at meetings for the purpose of making laws and regulations... and may be in all respects amended and altered thereby.'

10. The Code of Civil Porcedure was subsequently passed by the Governor-General in Council in the due exercise of his powers in order to regulate the procedure in the Civil Courts, and it cannot be denied that any alterations thereby made in the provisions of the Letters Patent are binding upon this Court. This was expressly held in an elaborate and carefully reasoned judg ment of this Court, to which I have already referred in the case of Achaya v. Ralnavelu I.L.R. 9 Mad. 253 where it was ruled that the right of appeal given by Section 15 of the Letters Patent is controlled by Section 629, Code of Civil Procedure, which provides that an order of a Civil Court rejecting an application for review of judgment shall be final. That decision was followed in the case of Rajagopal in re I.L.R. 9 Mad. 447 where it was held that Section 15 of the Letters Patent, being governed by Section 588, Code of Civil Procedure, no appeal lay from the order of a single Judge of the High Court made under Section 592, Code of Civil Procedure, rejecting an application for leave to appeal in forma pauperis.

11. These decisions, it seems to me, are clear and decisive authorities on the question before us. Eleven years have elapsed since those decisions were reported, but they have never, so far as I am, aware, been dissented from or questioned either by this or by any other High Court in India. They have been expressly approved and followed by the High Court of Allahabad in the cases of Banno Bibi v. Melidi Husain I.L.R. 11 All. 375 and Muhammad Nai mullah Khan v. Ihsanullah Khan I.L.R. 14 All. 226 Full Bench and the main line of reasoning on which they proceed appears to me to be unassailable.

12. It is, however, contended that the remarks of this Court in the cases reported as R v. R I.L.R. 14 Mad. 88 and Vanangamudi v. Ramasami I.L.R. 14 Mad. 406 seem to support an opposite view.

13. I do not think that this is so. In neither of those cases was any reference made to Achaya v. Ratnavelu I.L.R. 9 Mad. 253 or Rajagopal in re I.L.R. 9 Mad. 447 ; and, in fact, both cases were decided on other grounds without any reference to the effect of the Code of Civil Procedure in cutting down the right of appeal given by Section 15 of the Letters Patent. The question was, in fact, not at all considered by this Court in those cases.

14. An observation of their Lordships of the Privy Council in Hurrish Ghunder Chowdhry v. Kalisunderi Debi I.L.R. 9 Cal. 482 is, however, strongly relied upon as definitely deciding that Section 588 has no application to appeals from a single Judge of this Court. It is as follows: 'It only remains to observe that their Lordships do not think that Section 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the High Court to the Full Court.'

15. I do not think that these words lay down a general rule that Section 588 of the Code of Civil Procedure does not apply to any cases in which an appeal is sought to be made to the Full Court under Section 15 of the Letters Patent from the order of a single Judge. I am of opinion that the words refer only to the actual case then before the Privy Council. In that case one Judge of the High Court had refused to transmit to the Court of First Instance for execution a decree of the Privy Council. His refusal was made the subject of an appeal to the Full Court under the Letters Patent. Though the matter was brought before the Judge by a petition filed under Section 610, Code of Civil Procedure, and the order may, therefore, be said to be an order made under that Section, still it was none the less an order determining a 'question arising between the parties to the suit in which the decree was passed and relating to the execution thereof ' ( Section 244, Code of Civil Procedure).

16. It was, therefore, an order of the kind expressly declared by Section 2 of the Code to fall within the definition of a 'decree' and, as such, it was obviously an order against which an appeal would lie as against a decree, an independently of the provisions of Section 588, which Section enumerates the only orders, other than ' decrees' from which an appeal is allowed by the Code. Section 588 of the Code manifestly had no application to such an order in execution as their Lordships were then considering, and, consequently, whe such an order was made by a single Judge it was a proper subject of appeal the Full Court.

17. It seems to me that this is all that their Lordships intended to say, or did in fact say. The language used amounts to nothing more than this Section 8, no doubt, has the effect of restricting appeals in the case of orders which are not decrees, but it does not apply to such a case as this before us which is an order in execution and, therefore, ' a decree.' When, therefore, such an order has been made by a single Judge an appeal lies to the Full Court.' In this observation, then, of their Lordships I find Nothing to support the contention that an appeal will lie under Section 15 of the Letters Patent from every order of a single Judge without any regard to the restrictions on appeal imposed by various Sections of the Civil procedure Code. The same conclusion, though on somewhat different grounds, was arrived at by the Full Bench of the Allahabad High Court in the cases already referred to--Muhammad Naimullah Khan v. Ihsanullah Khan I.L.R. 14 All. 226 . It is impossible to suppose that their Lordships in a mere observation of four lines, without any explanation or reasoning, laid down a rule of such far-reaching importance, and opposed to what appears to be the plain language and intention of the Legislature. Section 588, Code of Civil Procedure, and the whole of chapter 43, in which that Section occurs, are expressly made applicable to the High Court by Section 632 of the Code.

18. More than this, Section 638, Code of Civil Procedure, expressly specifies the various Sections of the Code which do not apply to the High Court, as (1) a Court of Original Jurisdiction, and (2) a Court of Appellate Jurisdiction. Section 588 and chapter 43 are not among the Sections so excluded. Moreover, in Section 638 it is added 'nothing in this Code shall extend or apply to any Judge of the High Court in the exercise of jurisdiction as an Insolvent Court.' Thus, the farmers of the Code had clearly before them the various jurisdictions exercised by the High Court under the Letters Patent, and while excluding the Code from operation in regard to portions of that jurisdiction, it declared that it should apply in regard to other matters. It seems to me impossible to suppose that if the framers of the Code intended to preserve the right of appeal from the orders of a single Judge given by Section 15, they would have omitted all reference to that Section, when dealing with the very subject of the applicability of the Code of Civil Procedure to the procedure and jurisdiction of the High Court. It is argued that, as Section 15 of the Letters Patent is not expressly stated to be repealed or modified by the Code of Civil Procedure, the right of appeal given by it must be taken to remain in force. But this is evidently not so, for Section 39 of the Letters Patent is not expressly stated to be repealed or modified by the Code of Civil Procedure; yet Section 597 of the latter Code imposes a limitation on appeals to Her Majesty in Council in respect of decrees in suits of a nature cognizable by a Court of Small Causes which limitation finds no place in Section 39 of the Letters Patent. Section 597, Code of Civil Procedure, therefore, modifies Section 39 of the Letters Patent. I think that it is no less clear that Section 588, Code of Civil Procedure, modifies, and was intended to modify, the very wide terms of Section 15 of the Letters Patent.

19. It is, however, argued that a distinction is to be drawn between 'the High Court' and a single Judge of the High Court sitting alone. It is argued apparently that a single Judge derives his jurisdiction from, and is a creation of, the Letters Patent, and is inherently subject to the limitation imposed on his powers by Section 15 of the Letters Patent, viz., that he cannot give any final judgment, but that all his judgments are subject to an appeal to 'the High Court;' in other words, that the Court of a single Judge is congenitally affected by this infirmity, that its judgments must always be subject to appeal to' the High Court.'

20. It is urged that Sections 632 and 638, Code of Civil Procedure, declare that Section 588 (and other Sections) apply to 'the High Court,' but are not declared to apply to a single Judge of the High Court, and that consequently the finality which would attach under the Code of Civil Procedure to an order of 'the High Court' does not attach to the order of a single Judge. I am unable to accept the validity of this argument. As already noticed, Section 13 of the High Court Act enables the High Court 'to frame rules for the exercise of its original or appellate jurisdiction by one or more Judges,' and Section 36 of the Letters Patent declares that ' any function which is hereby directed to be performed by the said High Court in the exercise of its original or appellate jurisdiction may be performed' by a single Judge under the rules framed under Section 13 of High Court Act.

21. When Sections 632 and 638, Code of Civil Procedure declare that almost the whole Code applies to 'the High Court' it is not reasonable to argue that ' the High Court' there means the High Court in its strict sense of the Chief Justice and all the Judges. It may be broadly stated that 'the High Court' in that sense hardly ever exercises its functions. If exercises its functions ordinarily through a Bench of two Judges, and in certain cases through a single Judge. I have no doubt but that when 'the High Court' in these Sections is referred to it means the Courts, whether of a single Judge or of a Bench of two Judges, which are, from time to time, exercising the functions of the High Court. If this is not the sense in which 'the High Court' is used in these Sections, then the Code of Civil Procedure does not apply at all to the Courts of a single Judge or to a Bench of the High Court, and there is no law to regulate their procedure, though there is an elaborate law to regulate the procedure of the Full Court.

22. This is a reductio ad absurdum. It may be admitted that the Letters Patent do, in a number of Sections, draw a distinction between 'the High Court' and a Judge of that Court exercising one or more of the functions of the Court, and it may also be admitted that, if the Letters Patent stood alone without the Code of Civil Procedure having come into existence, Section 15 of the Letters Patent would have given a right of appeal against every judgment of a single Judge, for there is no limitation of the right laid down in the Section. But the Code of Civil Procedure was passed for the purpose inter aha of defining the cases in which an appeal should be allowed and those in which it should be forbidden.

23. It distinctly says that against certain orders passed under the Code no appeal shall be allowed, and it, with equal, distinctness, declares that the Sections in which these restrictions are imposed apply to the High Courts. It leads, as already stated, to a manifest absurdity to hold that the restrictions do not apply to such orders when passed by a single Judge or by a Bench of two Judges, but only when passed by the Full Court.

24. Section 44 of the Letters Patent expressly contemplates the Governor-General in Council passing laws which shall have the effect of amending or altering the provisions of the Letters Patent, and declares that 'all the provisions ' of the Letters Patent are subject to such laws ' and may be in all respects amended and altered thereby.'

25. When the Governor-General in Council enacted the Code of Civil Procedure he deliberately restricted the right of appeal in regard to certain specified orders, and distinctly declared that those restrictions applied to the High Courts. All argument, therefore, to show that general words in a general Act like the Code of Civil Procedure ought not to be so construed as to repeal specific provisions of a special enactment, like the Letters Patent, is beside the mark; for the Code of Civil Procedure expressly deals with the powers of the High Court, and it does so in pursuance of the express terms of the statute under which the Letters Patent were issued, and in accordance with an express reservation in the Letters Patent themselves. It only remains to notice briefly the argument based on the language of the Code itself in Sections 595, 597 and 589.

26.The argument founded on Sections 595 and 597 briefly stated is this:

Section 595 gives a general right of appeal to Her Majesty in Council against final judgments, decrees and orders of the High Court subject to certain conditions; and Section 597 enacts that, notwithstanding anything in Section 595, no appeal shall lie to Her Majesty in Council from the judgment of one Judge of a High Court, nor from the judgment of a Bench of two Judges when such Judges are divided in opinion. The reason for this restriction, it is argued, is that the right of appeal and the forum in such cases are provided for by Section 15 of the Letters Patent which must, therefore, be regarded as still effective and not repealed by the Code of Civil Procedure. That it is not repealed is, of course, true; and it is still effective as regards orders passed under the Code of Civil Procedure and declared by the Code to be open to appeal, as well as regards orders passed under the provisions of other laws than the Code of Civil Procedure. But there is nothing in the Section to lead to the supposition that it was intended to preserve the right of appeal against all judgments of a single Judge including orders of those classes which under the Code are expressly declared to be final. In other words, Section 597 is not intended to preserve a right of appeal in cases declared by Section 588 not to be subject to appeal. It merely forbids an appeal to Her Majesty in those cases (admittedly many) when an appeal does lie against the order of a single Judge under Section 15 of the Letters Patent inasmuch as another forum, viz., the High Court, is provided for such appeals

27. The argument founded on Section 589 is this; 'The Section provides a forum for appeals against orders passed by all ''Courts, original and appellate, other than orders passed by the High Court in the exercise of its appellate jurisdiction. Evidently, then, as no forum is provided, this chapter of the Code is not intended to apply at all to such orders of the High Court.' The answer to this argument is that Section 632 of the Code expressly says that this chapter does apply to the High Court, but there is no need for Section 589 to provide a forum for appeals against orders made by the High Court in the exorcise of its appellate jurisdiction, since that is already provided for by Section 15 of the Letters Patent. I cannot find a single sentence or expression in these or in any other Sections of the Code of Civil Procedure which indicate that its provisions are to be controlled and limited by the Letters Patent. On the contrary, my conclusion is that the Code of Civil Procedure was intended to modify, and does modify, the Letters Patent in certain particulars. The Code is the general law which defines the cases in which orders passed under it are, and are not, open to appeal, and this general law is equally applicable to all Courts, including the Court of a single Judge of the High Court. When such Court of a single Judge makes an order which the Code of Civil Procedure declares to be an order open to appeal, Section 15 of the Letters Patent prescribes the forum to which the appeal is to lie and it also gives a right of appeal against all orders passed by a single Judge under other laws than the Code of Civil Procedure, but it does not keep alive any right of appeal which is expressly negatived by the Code of Civil Procedure, either in Section 588 or in any other Section.

28. I would, therefore, dismiss this appeal with costs on the ground that under Section 588, Code of Civil Procedure, no appeal lies.

Subramania Ayyar, J.

29. There can be no doubt that the order of the learned Judge, against which the present appeal has been preferred, is a 'judgment' within the meaning of Section 15 of the Letters Patent. The question to be determined now is whether Section 588 of the Code of Civil Procedure applies here and prohibits the present appeal. The cases of Rajagopal in re I.L. R., 9 Mad. 447 and Sankaran v. Raman Kutti I.L.R. 20 Mad. 152 are distinct authorities in support of the view that that Section applies. But doubts having been recently entertained as to whether those cases lay down the law correctly, the point was submitted for the decision of a Full Bench. The Full Bench before which the point was argued did not, however, settle it one way or the other and as my learned colleague holds that another reference in the matter to a Full Bench is not called for, I must consider myself bound in this case by the authorities referred to.

30. Nevertheless I am unable to accept the suggestion that the observations of the Judicial Committee in Hurrish Chunder Chowdhry v. Kalisunderi Debi I.L.R. 9 Cal. 482 to the effect that Section 588 of the Code is inapplicable where the appeal is from one Judge of the High Court to the Full Court are mere dicta. The tenor of the observations seems clearly to indicate that they were intended to be a decision on the point, irrespective of the circumstances of the particular case in which the observations were made. For the ground of the opinion of their Lordships refers not to the nature of the order appealed against, i.e., whether it fell within Section 244 or under Section 588 of the Code, but to the relative position of the Judge who passed the order and the Court to which the appeal against the order was made. No doubt the observations are brief; but the point involved is indeed a plain and simple one. Nay, the single reason, assigned in the concluding part of the observations for holding Section 588 to be inapplicable, is really the fundamental reason that can be urged in support of that view, and the reason is, as I apprehend, that the very scheme of the Code as to appeals is that they lie from one Court to another. Consequently Section 588, which must be construed with reference to this general scheme, has no application to a case where the appeal is from one Judge of a Court to the Full Court.

31. However, whether the opinion in question of the Judicial Committee is but a dictum that can be explained away or a decision that is binding upon this Court can, in the existing circumstances so far as this tribunal is concerned, be satisfactorily answered by a Full Bench ruling only. In the absence of such a ruling I should, as already stated, hold myself bound by this Court's decisions referred to.

32. On this ground I concur in dismissing the appeal with costs.


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