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P.R.N.S.M. Chokkalingam Chetti Vs. the Official Assignee of Madras - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1940)2MLJ645
AppellantP.R.N.S.M. Chokkalingam Chetti
RespondentThe Official Assignee of Madras
Cases ReferredVenkitaszvami Chettiar v. Sekkutti Pillai
Excerpt:
- - as a question of construction, we fail to see why, when there are several decisions in respect of several subject-matters, the decree embodying those decisions should, by, some fiction, be regarded as one and entire......case? it was held in chiranji lai v. beharilai (1918) 16 a.l.j. 864, that when there had been two cross appeals against the decree of the court of first instance and one cross appeal had been allowed and the other dismissed, there was no right of appeal against the decree dismissing the appeal, whereas an appeal lay against the decree allowing the appeal. the court proceeded on the view that in cross appeals the decree in each was a separate one...in effect there are two orders of this court, one dismissing the appeal and affirming the decree of the lower court and the other allowing the memorandum of objections or cross appeal and modifying the decree of the lower court. so far, then, as the decree affirming the decyee of the lower court is concerned, no appeal would lie to the privy.....
Judgment:

Venkataramana Rao, J.

1. This is an application for leave to appeal to the Privy Council against the decree passed by us in O.S.A. No. 68 of 1937. This appeal was preferred by 'the petitioner against the decision of our learned brother Wadsworth, J., disallowing the claim to priority of the petitioner in regard to the amount claimed by him. We affirmed the decision of our learned brother Wadsworth, J., and dismissed the appeal. The decree passed by us is a decree of affirmance within the meaning of Section 110, Clause 3 of the Civil Procedure Code. It is contended by Mr. Srinivasa Aiyangar that there is one decree issued in this case and, when leave to appeal is granted in regard to the question of interest, his client is entitled as a matter of right to leave to appeal also in regard to the question of priority, because the claim is one composite claim and the decree is one decree. We are not inclined to agree with this contention. Though one decree was issued in this case, it is in essence a document which embodies two decrees. Against the decision of our learned brother Wadsworth, i e., two appeals were preferred, one by the Official Assignee in so far as the decision went against him and the other by the petitioner herein in so far as the decision went against him. Therefore, in effect, we passed two decrees.

2. In Ramanathan Chetti v. Subramanian Chetti : AIR1926Mad1024 , the question which we have now to decide arose for consideration. In that case an appeal and the memorandum of objections were preferred against the decree of the lower Court and the High Court passed one decree by which the appeal was dismissed and the memorandum of objections was partly allowed. The question was whether the appellant in that case was entitled to leave to appeal to the Privy Council on the ground that the memorandum of objections was partly allowed and, as one decree was issued in the case, it must be taken that there was a modification of the decree as a whole and that it was not a decree of affirmance This contention was negatived. In dealing with this contention, Phillips, J., observes on page 297:

Does the mere fact of an order on the memorandum of objections modifying the decree of the lower Court give the plaintiff the right to reopen the whole of the case? It was held in Chiranji Lai v. BehariLai (1918) 16 A.L.J. 864, that when there had been two cross appeals against the decree of the Court of first instance and one cross appeal had been allowed and the other dismissed, there was no right of appeal against the decree dismissing the appeal, whereas an appeal lay against the decree allowing the appeal. The Court proceeded on the view that in cross appeals the decree in each was a separate one...In effect there are two orders of this Court, one dismissing the appeal and affirming the decree of the lower Court and the other allowing the memorandum of objections or cross appeal and modifying the decree of the lower Court. So far, then, as the decree affirming the decyee of the lower Court is concerned, no appeal would lie to the Privy Council.

3. We entirely concur in this view because it is in consonance v with the plain language of Section 110 of the Civil Procedure Code. Reliance was placed by Mr. Srinivasa Aiyangar on the decision in Venkiiaswami Chettiar v. Sekkutti Pulai : (1936)71MLJ580 , but that decision does not help him. On the other hand we find the following observation of Venkatasubba Rao, J., on page 583 which is not in his favour:

As a question of construction, we fail to see why, when there are several decisions in respect of several subject-matters, the decree embodying those decisions should, by, some fiction, be regarded as one and entire.

4. Again, reliance was placed by Mr. Srinivasa Aiyangar on the decision in Perichiappa Chettiar v. Nachiappan (1930) 35 L.W.206 of Reilly and Anantakrishna Aiyar, JJ. That decision gave a very wide interpretation to the decision of the Privy Council in Annapurna Bai v. Ruprao (1924) L.R. 51 IndAp 319 : I.L.R. 51 Cal. 969 ; but that decision, if we may say so with respect, was rightly dissented from in Venkitaszvami Chettiar v. Sekkutti Pillai : (1936)71MLJ580 .

5. Lastly Mr. Srinivasa Aiyangar submitted that, even if we take the view that the decree is one of affirmance, leave my be granted on the ground that there is a substantial question of law involved in the appeal. It will be seen from a perusal of our judgment that we came to a decision on a question of fact, namely, that under the compromise entered into with the Official Assignee by the petitioner, the petitioner is entitled only to a pro rata distribution whatever be the nature of the assets held by the Official Assignee, whether the assets be taken to be those of the father or those of the son. That was enough to dispose of the appeal; but, as the question of law, namely, that apart from the compromise the petitioner is entitled to claim priority, was also argued, we proceeded to deal with it. We therefore cannot say that a substantial question of law is involved in the appeal in order to enable us to exercise our discretion and grant leave under Section 110.

6. We therefore see no reason to grant leave to appeal in this case and the application is therefore dismissed with costs of the respondent, which we fix at Rs. 100.


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