Skip to content


B. Raja Rajeswara Sethupathi Alias Muthu Ramalinga Sethupathi Avergal Vs. Arunachalam Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1923Mad602; 73Ind.Cas.217; (1923)44MLJ424
AppellantB. Raja Rajeswara Sethupathi Alias Muthu Ramalinga Sethupathi Avergal
RespondentArunachalam Chettiar
Cases ReferredMakund Sarup v. Richard Ross Skinner
Excerpt:
- - but it seems to be well established that there must be some substantial question of law of general interest involved see moti chand v. 583. we are not prepared to act on the principle suggested without more and better authority. 5. in these circumstances the petitions must fail, and must be dismissed with costs......council against the decision of this court in appeal no. 374 of 1919 and for consolidation of the suit in question in that appeal and the suit in question in appeal no. 373 of 1919, in respect of which leave to appeal has already been given, the latter application being made under order 45 rule 4 c.p.c. the consolidation is asked for purposes of valuaation; and it is not disputed that, unless consolidation is allowed, the case in appeal no. 574 of 1919 will not fulfil the requirement of section 110 c.p.c. in respect of the amount of the subject matter of the suit in the court of first instance or the subject matter in dispute in appeal.2. under order 45, rule 4 consolidation is admissible, only when the suits in question involve substantially the same questions for determination and.....
Judgment:
ORDER

1. These are applications for leave to appeal to His Majesty in Council against the decision of this Court in Appeal No. 374 of 1919 and for consolidation of the suit in question in that appeal and the suit in question in Appeal No. 373 of 1919, in respect of which leave to appeal has already been given, the latter application being made under Order 45 Rule 4 C.P.C. The consolidation is asked for purposes of valuaation; and it is not disputed that, unless consolidation is allowed, the case in Appeal No. 574 of 1919 will not fulfil the requirement of Section 110 C.P.C. in respect of the amount of the subject matter of the suit in the Court of first instance or the subject matter in dispute in appeal.

2. Under Order 45, Rule 4 consolidation is admissible, only when the suits in question involve substantially the same questions for determination and have been decided by the same judgment. We can easily hold that the two suits in question before us do involve substantially the same questions for determintion. As regards however the second requirement in the Order, the facts are that the suits were determined in the Court of first instance by two distinct judgments. In this Court the appeals Nos. 373 and 374 of 1919, were no doubt orginally heard together and decided by one judgment. There was however afterwards in Appeal No. 374 of 1919 an application for review of that judgment and eventually that appeal was reheard on review and another judgment was given on the 3rd November, 1921. The judgment of that date no doubt did not in any way modify the portion of the earlier judgment, in respect of which leave to appeal has been granted and is now asked for. That however does not, in our opinion, affect the character of the judgment of the 3rd November, 1921. As the judgment is in Appeal No. 374 of 1919 and as that judgment is distinct from the judgment in Appeal No. 373 of 1919, the earlier judgment was of course adopted, so far as it still stood, in the later judgment in Appeal No. 374 of 1919. But that did not entail that the later judgment was not the judgment in that appeal and the final adjudication, against which a further appeal would have to be taken. In these circumstances we cannot hold that the second requirement of Order 45, Rule 4, that the suits to be consolidated were decided by the same judgment has been met, since the judgments deciding them were, in our opinion, certainly different in the Court of first instance and were distinct in this Court. There is, therefore, no room for the application of such an authority as Bhagwan Singh v. Bhavani Das Bhagwan Das I.L.R. (1921) All. 223 . The petition for consolidation failing, it is not possible for us to treat the valuation in Appeal No. 374 of 1919 as fulfilling the requirement of Section 110 C.P.C.

3. We are then asked to certify the case as a fit one for appeal under Section 109(c), C.P.C. The decisions as to fitness for appeal with reference to that provision are no doubt wide. But it seems to be well established that there must be some substantial question of law of general interest involved See Moti Chand v. Ganga Prasad Singh I.L.R. (1921) M. 100 and Sadagopachariar v. Krishnamoorthy Rao I.L.R. (1915) All. 575. We cannot see how such a question arises in the case before us, since the matter for appeal is only the effect on a particular case of Section 47, C.P.C. as debarring the plaintiff from proceeding by suit instead of in execution of a decree already obtained.

4. It is then suggested that the case is covered by Section 109(c) C.P.C. because leave has already been granted in respect of another case, Appeal No. 373 of 1919 involving the same question as this. The only authority for this very wide construction of Section 109(c) is Makund Sarup v. Richard Ross Skinner (1909) 5 I.C. 583. We are not prepared to act on the principle suggested without more and better authority.

5. In these circumstances the petitions must fail, and must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //