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In Re: Chelamcherla Venkateswara Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1948)2MLJ201
AppellantIn Re: Chelamcherla Venkateswara Rao
Cases ReferredEswariah v. Rameswaryya
Excerpt:
- - it is contended that the fact that the learned judge was satisfied that the decision of the lower court was contrary to law or otherwise erroneous or unjust as regards some of the items necessarily implies that the decree as such is contrary to law, or otherwise erroneous or unjust......decision was there was nothing in order 41, rule 11 which permitted of severance of the decree. the appeal had to be either dismissed or admitted as a whole.2. the language of the proviso to rule 1 of order 44, civil procedure code, in our view, supports the contention that leave to appeal in forma pauperis cannot be restricted to a part of the subject-matter of the appeal. the decree appealed from cannot be severed, and the court cannot treat the decree so far as a part of the subject-matter is concerned as nationally a separate decree in respect of which alone an order may be made under that rule. following the principle of the ruling in eswariah v. rameswaryya : air1940mad483 we hold that the learned judge erred in confining the leave to items 4 and 5 only. the application for.....
Judgment:

P.V. Rajamannar, Officiating C.J.

1. This is an appeal against the order of Govinda Menon, J., granting to the appellant leave to appeal in forma pauperis against the decree and judgment in O.S. No. 24 of 1946 on the file of the Subordinate Judge's Court of Bapatla as regards items 4 and 5 of the plaint Schedule and dismissing the application as regards the other items. It is contended that the fact that the learned Judge was satisfied that the decision of the lower Court was contrary to law or otherwise erroneous or unjust as regards some of the items necessarily implies that the decree as such is contrary to law, or otherwise erroneous or unjust. Even if there is an error as regards a part of the subject-matter, the decree as passed must be deemed to be erroneous. The ruling of the Full Bench of this Court in Eswariah v. Rameswarayya : AIR1940Mad483 was relied on as supplying an apposite analogy. It was held in that case that under the terms of Order 41, Rules 11 and 12 of the Code of Civil Procedure, this Court cannot direct a second appeal to be admitted in part only. The ratio decidendi of that decision was there was nothing in Order 41, Rule 11 which permitted of severance of the decree. The appeal had to be either dismissed or admitted as a whole.

2. The language of the proviso to Rule 1 of Order 44, Civil Procedure Code, in our view, supports the contention that leave to appeal in forma pauperis cannot be restricted to a part of the subject-matter of the appeal. The decree appealed from cannot be severed, and the Court cannot treat the decree so far as a part of the subject-matter is concerned as nationally a separate decree in respect of which alone an order may be made under that rule. Following the principle of the ruling in Eswariah v. Rameswaryya : AIR1940Mad483 we hold that the learned Judge erred in confining the leave to items 4 and 5 only. The application for leave to appeal in forma pauperis is granted in its entirety.


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