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Eswari Pillai Vs. Madhavan Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1226 of 1963 and Civil Misc. Petn. No. 5842 of 1967
Judge
Reported inAIR1969Mad227
ActsTransfer of Property Act, 1882 - Sections 54; Code of Civil Procedure (CPC) , 1908 - Sections 114 - Order 47, Rule 1
AppellantEswari Pillai
RespondentMadhavan Pillai and anr.
Appellant AdvocateP. Ananthakrishna Nair, Adv.
Respondent AdvocateV.S. Ramakrishnan, Adv.
Cases ReferredSabitri Thakurain v. Savi
Excerpt:
property - title - section 54 of transfer of property act,1882 and section 114 and order 47 rule 1 of code of civil procedure, 1908 - order granting or refusing leave says nothing more than that either leave is granted or that it is refused - it is difficult to bring order under section 114 or order 47 - leave applied for immediately after judgment has been delivered - it is unnecessary to state why he either refuses or grants leave and in such a case to say that review of order refusing or granting leave would lie would be to make right of applying for review a meaningless formality. - - this would seem to be a good enough reason for refusing to grant a review of the judgment itself and not of the order refusing to grant leave, even though both of them are part of the same judgment......been formulated with regard to it, though the high court's power to regulate procedure in letters patent appeals is independent and has been preserved, and they went on to observe further that the code is framed on the scheme of providing generally for the mode in which the high court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of the original civil jurisdiction to which the code is not to apply. here again it would be noticed that the point dealt with is the procedure to be adopted in disposing of the second appeal under clause 15 of the letters patent and also incidental matters during the pendency of the appeal under the letters patent, and it does not deal with the question as to whether the order refusing.....
Judgment:
ORDER

:

In this case on 12th December 1967, the second appeal was allowed and an application for leave to appeal under Clause 15 of the Letters Patent was refused. The matter has now been taken up for consideration at the request of the advocate for the respondent for reconsideration of the order refusing leave to appeal. The question for consideration, therefore, is, whether after leave to appeal has been refused, it is open to the Court to reconsider that order and grant leave. Reliance is placed on behalf of the respondent on the decision of the Andhra Pradesh High Court in In re Srinadham, : AIR1963AP18 . Rule 105 of the Appellate Side Rules of the Andhra Pradesh High Court runs as follows:--

'When an appeal against an appellate decree or order has been heard and disposed of bv a Single Judge an application for leave to appeal under Clause 15 of the Letters Patent of the High Court shall be made orally and immediately after the judgment has been delivered.'

Before the Andhra Pradesh High Court it was urged that the order refusing leave to file an appeal under Clause 15 of the Letters Patent is not a part of the main judgment, but a separate order and that therefore, a review lies. In In re Sridhar Rao, AIR 1958 Andh 60 a Bench of the Andhra Pradesh High Court held that Rule 95 of the Madras Appellate Side Rules (which is similar to Rule 105 of the Andhra Pradesh High Court) above referred to was mandatory and that it did not confer any discretionary power on the Court to excuse the delay. In the present case no such question of delay or the necessity of excusing the delay arises.

But in regard to the contention that the order refusing leave was not part of the main judgment, but was a separate Order, a Bench of this Court in Kumarappa v. Official Receiver. : AIR1950Mad216 held that the order refusing or granting leave cannot be independent of the judgment itself in so far as that order could only be passed on the merits of the appeal itself and as such it is not independent of the judgment but only a part of it. This decision approved of the decision of a Bench of the Bombay High Court in Balu Harshet v. Shrikrishna Govind, : AIR1930Bom224 which also held that the order refusing leave is a part of the judgment itself against which there is no appeal under Clause 15 of the Letters Patent. The effect of these decisions is that there can be no appeal not merely against the main judgment, but also against the order refusing leave except with the leave of the Judge who decided the second appeal. That there is no appeal against an order refusing leave has also been laid down in Ramanayya v. Kotayya, 57 M.L. J. 398 AIR 1930 Mad 75. To the same effect was the decision in M. Govinda Rao, In Re : AIR1936Mad134 .

7. In Venkatasubbarayadu v. Sri Raja Krishna Yachendrudu Varu Bahadur, ILR 40 Mad 651 AIR 1917 Mad 670 it has been held that it is open to a Bench which hears an appeal under Clause 15 of the Letters Patent to review its own judgment Tbis decision followed the decision In Ratanchand v. Damji, AIR 1927 Bom 232 and was itself followed by a Bench of the Puniab High Court in Suba Singh v. Neki Kishan, . But the fact that it has been decided that Section 114, C. P. C. applies to a judgment rendered by a Bench of the High Court in an appeal under Clause 15 of the Letters Patent does not help us to decide whether the order of a Single Judge refusing leave can be the subject-matter of a review. As I have already pointed out, it has been held that no appeal lies against an order refusing leave and in any case that is not the question for decision before me now,

The learned Judge of the Andhra Pradesh High Court, has referred to the decision in Sabitri Thakurain v. Savi, AIR 1921 PC 80 where their Lordships of the Privy Council dealt with the contention that the Orders and Rules made under the Code of Civil Procedure have no application to appeals brought under the Letters Patent. Their Lordships observed that there is no reason why there should be any general difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure in other matters and if this particular matter of security for costs is not dealt with in the orders and rules made under the powers of the Code, when it arises in connection with the jurisdiction created by the Letters Patent, Clause 15, no rules of procedure have been formulated with regard to it, though the High Court's power to regulate procedure in Letters Patent appeals is independent and has been preserved, and they went on to observe further that the Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of the original civil jurisdiction to which the Code is not to apply. Here again it would be noticed that the point dealt with is the procedure to be adopted in disposing of the second appeal under Clause 15 of the Letters Patent and also incidental matters during the pendency of the appeal under the Letters Patent, and it does not deal with the question as to whether the order refusing leave to appeal under Clause 15 of the Letters Patent is subject to any review or reconsideration. This decision cannot, therefore, also help us to decide the question now at issue.

With great respect to that learnedJudge, therefore, I do not think that itfollows on the principle of the abovedecision that the provisions under Section 114, C. P. C. and Order 47, C. P. awould apply and a review would lieagainst such an order, though Section 114,says that any person consideringhimself aggrieved by a decree or orderfrom which no appeal is allowed by theCode, may apply for a review of judgment to the Court which passed the decree or made the order, and the Courtmay make such order thereon as it thinksit That can only apply to the judgmentas a whole. Of course, if an applicationfor review of the judgment as a whole ismade, the judgment may be subject toreview. But the order refusing leave,which is a part of the same judgment,cannot be treated as a separate part ofthe judgment, independent of the mainjudgment and be subject to review, without the main judgment itself being reviewed. In other words, a judgment ina second appeal consists of a portionwhich either dismisses or allows the appeal in whole or in part and there isanother part of the judgment, whichgrants or refuses leave. The part grantingor refusing leave alone cannot be reviewed. The judgment as a whole may, ofcourse, be subject to review. That wouldbe the effect of the decision, earlier referred to, of this Court in : AIR1950Mad216 .

8. There is also a practical difficulty in holding that the order refusing or granting leave to file a Letters Patent appeal is subject to review. An order either granting or refusing leave says nothing more than that either leave is granted or that it is refused. It is very difficult to bring such an order within the ambit of Section 114, C. P. C. or Order 47, C. P. C. The leave is applied for immediately after the judgment has been delivered and the mind of the Judge is fresh with all the facts of the case and, as it also forms part of the judgment, it would be unnecessary to state why he either refuses or grants leave and in such a case to say that a review of the order refusing or granting leave would lie would be to make that right of applying for review a meaningless formality. In the very decision of the Andhra Pradesh High Court referred to above it has been held that the learned Judge has carefully considered all aspects of the case and agreed with the concurrent finding of the Courts below and refused to grant leave, and that therefore, there were no sufficient grounds for granting a review. This would seem to be a good enough reason for refusing to grant a review of the judgment itself and not of the order refusing to grant leave, even though both of them are part of the same judgment. Practically in every case where an application for review of an order granting or refusing leave is made, that would be the result.

In : AIR1936Mad134 , the petitioner, whose second appeal had been dismissed by a Single Judge, applied for leave to file an appeal under the Letters Patent and it was dismissed stating that the Court could not find any ground for granting the leave asked for. The petitioner then filed another petition asking for review of this order. That was also dismissed. This could only be on the ground that no ground for review would be available. We are not now concerned with the question as to whether a Bench can grant leave to appeal against a judgment of a Single Judge disposing of a second appeal in spite of the Single Judge's refusal of leave to appeal which was one of the points urged before and rejected by the Bench in that case; nor are we concerned with the question whether an appeal lies against an order refusing to grant leave, an aspect of the matter to which I have earlier referred to. I am only pointing out that a power of review of the order refusing or granting leave would be illusory.

9. The result of the above discussion is that while it may be open to the respondent in this case to apply for a review of the judgment, it is not open to this Court either to review or to reconsider the order refusing to grant leave to appeal under Clause 15 of the Letters Patent.


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