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Magam D. Venkatesam Chetty and anr. Vs. Mothichand Gulabchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad316; (1926)50MLJ190
AppellantMagam D. Venkatesam Chetty and anr.
RespondentMothichand Gulabchand
Cases ReferredBhimasena Rao v. Venugopal Mudali
Excerpt:
- - ' then rule 2 of that order says that 'notice of the appeal shall be given in the manner prescribed by order 41-a, rule 6. so that order 41-b distinctly applies to appeals under clause 15 of the letters patent. they are rules made with authority and it would therefore seem that a memorandum of objections is competent in the case of original side appeals as well......rules referred to above both in the civil procedure code and in the original and appellate side rules of the high court. it seems to me that the argument that an appeal under the letters patent from the original side is not governed by the code could not be, entertained after the decision in sabilri thakurain v. s.avi (1920) l.r. 48 indap 76. with all respect i do not agree with the decision in bhimasena rao v. venugopal mudali (1924) 48 m.l.j. 384 but in view of the fact that a bench of this court has held otherwise, and that the question is one of procedure which is likely to arise very frequently i think the case should be referred to a full bench so that there may be an adjudication once and for all on the matter. i would, therefore, refer for the decision of a full bench the.....
Judgment:

Kumaraswami Sastri, J.

1. In this case the question raised is, whether a memorandum of objections can be filed in an appeal from the Original Side. The petitioner before us filed a memorandum of objections but it was returned by the office on the ground that no memorandum of objections could be filed, relying on a decision of the Chief Justice and Srinivasa Aiyangar, J., in Bhimasena Rao v. Venugopal Mudali (1924) 48 M.L.J. 384 We find it difficult to see why a memorandum of objections should not be filed in a Original Side Appeal. Their Lordships of the Privy Council have in Sabitri Thakurain v. Savi (1920) L.R. 48 IndAp 76 to which the attention of the learned Judge does not seem to have been drawn, and which overruled the view in Sesha Aiyar v. Nagarathna Lala : (1903)13MLJ362 held that the fact that Letters Patent Appeals from judgments on the Original Side are not from one Court to another but from one judge of the High Court to two or more Judges does not prevent sections of the Code as to security for costs from being applicable and the main ground given by Srinivasa Aiyangar, J., does not therefore hold. Turning to the rules of our Court and the Code, Rule 1 of Order 41-A of the Civil Procedure Code which refers to appeals to the High Court from the original decrees of Subordinate Courts says that 'the rules contained in Order 41 shall apply to appeals in the High Court of Judicature at Madras with the modifications contained in this order.' So, except for the modifications there, the whole of the Code applies, and under this order there is provision made for memorandum of objections being filed. Then Rule 1 of Order 41-Bsays that ' the rules of Order 41-A shall apply so far as may be to appeals to the High Court of Madras under Clause 15 of the Letters Patent of the said Court; provided that it shall not be necessary to file copies of the judgment and decree appealed from.' Then Rule 2 of that order says that ' notice of the appeal shall be given in the manner prescribed by Order 41-A, Rule 6. ' So that Order 41-B distinctly applies to appeals under Clause 15 of the Letters Patent. So far as the Civil Procedure Code is concerned, Section 117 says that ' Save as provided in this part or in Part X or in rules, the provisions of this Code shall apply to such High Courts' Section 120 of the Code refers to the provisions which will not apply to the High Court in the exercise of its Original Jurisdiction. Then Section 121 refers to the rules in the body of the Code and says that those rules shall be in force until they are annulled or modified in accordance with the rule-making powers given in the Code. Section 129 gives the High Court power to make rules not inconsistent with the Letters Patent to regulate its own procedure. Order 49, Rule 3 gives the rules which will not apply to the Original Side of the High Court and, so far as Order 41 is concerned, the only rule which is not applicable is Rule 35 about the signing of the decrees.

2. Turning to the Original Side Rules, we find that specific provision' is made for filing memorandum of objections. Rule 351 expressly refers to the respondents' case being printed and refers to the memorandum of objections specifically. So that the rules contemplate the filing of a memorandum of objections. Article 37 of the Fee Rules provides a fee for the filing of a memorandum of objections--Rs. 75.

3. The only objection that can be taken is that an appeal from the Original Side to the Appellate Side is not an appeal from one Court to another but an appeal from one Judge of the High Court to one or more Judges of that Court, but this objection has been considered by the Privy Council and has been overruled, so far as it relates to security for costs, in Sabitri Thakurain v. Savi (1920) L.R. 48 IndAp 76 Their Lordships of the Privy Council deal with the various sections of the Code and said that the fact that the appeal was from one Judge of the Court to another under the Letters Patent is no ground for not applying the provisions of the Code.

4. This decision overrules the judgment of Bhashyam Aiyangar, J. in Sesha Aiyangar v. Nagarathna Lala : (1903)13MLJ362 . Evidently Srinivasa Aiyangar, J., who delivered the judgment in Bhimasena Rao v. Venugopal Mudali (1924) M.L.J. 384 had in mind the decision of Bhashyam Aiyangar, J. in Sesha Aiyar v. Nagarathna Lala : (1903)13MLJ362 When he speaks of an appeal under the Letters Patent as not being an appeal from one Subordinate Court to another and his attention evidently does not seem to have been drawn to the decision of their Lordships of the Privy Council in Sabitri Thakurain v. Savi (1920) L.R. 48 IndAp 76 and to the various rules referred to above both in the Civil Procedure Code and in the Original and Appellate Side Rules of the High Court. It seems to me that the argument that an appeal under the Letters Patent from the Original Side is not governed by the Code could not be, entertained after the decision in Sabilri Thakurain v. S.avi (1920) L.R. 48 IndAp 76. With all respect I do not agree with the decision in Bhimasena Rao v. Venugopal Mudali (1924) 48 M.L.J. 384 But in view of the fact that a Bench of this Court has held otherwise, and that the question is one of procedure which is likely to arise very frequently I think the case should be referred to a Full Bench so that there may be an adjudication once and for all on the matter. I would, therefore, refer for the decision of a Full Bench the following question: ' Whether it is competent for the respondent in an appeal from the Original Side to file a memorandum of objections against the decree appealed from?

Krishnan, J.

I agree with my learned brother that the question whether a memorandum of objections could be filed in an appeal from the Original Side should be decided by a Full Bench. The practice has always been to allow such memoranda of objections. Till recently there was nothing contrary to it; but our attention has been drawn to the decision of the Chief Justice and Srinivasa Aiyangar, J. in Bhima-sena Rao v. Venugopal Mudali (1924) 48 M.L.J. 384, where it was held that such a memorandum of objections was not competent in the case of Original Side Appeals. It seems to me that this matter requires further consideration. Order 41-A of the Civil Procedure Code deals with appeals to the High Court from original decrees of Subordinate Courts. Rule 12 of that order refers to memorandum of objections. Order 41-B says that ' the rules of Order 41-A shall apply, so far as may be, to appeals to the High Court of Madras under Clause 15 of the Letters Patent of the said Court, provided that it shall not be necessary to file copies of the judgment and decree appealed from. ' This order seems to contemplate that a memorandum of objections can be filed in Original Side Appeals in the same manner as in moffusil appeals for there is nothing in Order 41-B to prevent it being considered to be wide enough to include memorandum of objections. This view is supported by the practice that has been hitherto followed. The sections of the Code giving power to the High Court to make rules for regulating its own procedure have been referred to by my learned brother and I do not want to cover the same ground again. It is clear that the rules of practice referred to by my learned brother contemplate the filing of memorandum of objections to one of them which fixes the Court-fee payable. They are rules made with authority and it would therefore seem that a memorandum of objections is competent in the case of Original Side Appeals as well.

The question regarding the taking security for costs in an Original Side Appeal was considered by the Privy Council and the attention of their Lordships was drawn to the case reported in Sesha Aiyar v. Nagarathna Lala (1909) 13 M.L.J. 362 in which Bhashyam Aiyangar, J. had held that the Civil Procedure Code did not apply to appeals from the Original Side and that security could not be taken in an Original Side Appeal. Their Lordships dissented from that view and held that the Code applied in such a case. There are observations in that case which make it clear that the Code will apply not only to security proceedings which was the matter which was being dealt with by their Lordships but also other matters arising in appeals under the Letters Patent. After that decision it is difficult to say that there is anything wrong in allowing a memorandum of objections to be filed in an Original Side Appeal. I, therefore, with all respect think that the decision of the Chief Justice and Srinivasa Aiyangar, J., requires reconsideration and I agree to the question proposed by my learned brother being submitted to the Full Bench.

The Court expressed the following Thakurain v. Savi (1920) L.R. 48 IndAp 76 makes it clear that the provisions of Order 41 will apply to Original Side Appeals under the Letters Patent. Rule 22 of that order expressly provides for cross-objections being raised by respondents. If there were any doubt about it, it would be resolved by the provisions of our own Orders 41-A and 41-B. See also Order 49, Rule 3. Had the Privy Council case been cited before the Court in the case reported in Bhimasena Rao v. Venugopal Mudali (1924) 48 M.L.J. 384 it would no doubt have corne to a different conclusion. We decide accordingly that the Memorandum of Objections in this case is competent. Costs will be costs in the cause.


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