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P.P.P. Chidambara Nadar Vs. C.P.A. Rama Nadar (Deceased) Pichaimani Alias Arunachalam (Minor) by Guardian Thillai Ammal as L.R. of the Deceased and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1937Mad385; (1937)1MLJ453
AppellantP.P.P. Chidambara Nadar
RespondentC.P.A. Rama Nadar (Deceased) Pichaimani Alias Arunachalam (Minor) by Guardian Thillai Ammal as L.R.
Cases ReferredIn Nagendranath De v. Sureshchandra De
Excerpt:
- - it seems in our opinion somewhat artificial to hold, that modifying an order in revision amounts to amending it, when, as is well known in our processual law, the word 'amendment' does not embrace, correction by a superior court......(1911) 24 m.l.j. 457 : i.l.r. 36 mad. 135, which places a restrictive interpretation upon the word 'appeal'; but as the learned judges who have referred the question, rightly point out, that decision is inconsistent with the views expressed in numerous authoritative decisions as to the true meaning of the terms 'appeal' and 'appellate court'.2. the view taken by the learned judges in subramania pillai v. seethai ammal (1911) 24 m.l.j. 457 : i.l.r. 36 mad. 135, necessitated, if we may say so with respect, their adopting a somewhat curious line of reasoning. they were faced with the difficulty, what should be the starting point when the revision petition fails; and what, when it succeeds? logically, from their conclusion that the word 'appeal' does not include 'revision' in neither.....
Judgment:

Venkatasubba Rao, J.

1. The facts have been fully set forth in the order of referring Judges and need not be recapitulated. The short question is, whether when a revision petition is filed, it is permissible to hold under Article 182(2) of the Limitation Act, that the date of the order in revision made by the High Court, furnishes the starting point; in other words, whether the term 'appeal' is used in a restrictive sense so as to exclude revision petitions and the expression 'the Appellate Court' is to be confined to a Court exercising appellate, as opposed to, revisional powers. The only considered decision directly bearing on the point is Subramania Pillai v. Seethai Ammal (1911) 24 M.L.J. 457 : I.L.R. 36 Mad. 135, which places a restrictive interpretation upon the word 'appeal'; but as the learned Judges who have referred the question, rightly point out, that decision is inconsistent with the views expressed in numerous authoritative decisions as to the true meaning of the terms 'appeal' and 'appellate Court'.

2. The view taken by the learned Judges in Subramania Pillai v. Seethai Ammal (1911) 24 M.L.J. 457 : I.L.R. 36 Mad. 135, necessitated, if we may say so with respect, their adopting a somewhat curious line of reasoning. They were faced with the difficulty, what should be the starting point when the revision petition fails; and what, when it succeeds? Logically, from their conclusion that the word 'appeal' does not include 'revision' in neither event should an order upon a revision petition give rise to a fresh starting point. But they were driven to hold that when the revision petition is dismissed, time runs from the original decree or order but when it succeeds, not from the original, but from the fresh decree or order, either under Clause (1) or Clause (4). This involves a certain contradiction, as the learned Judges felt compelled to have recourse to the same clause, for two dissimilar purposes; when the revision petition is dismissed, time would run from the original decree or order under Clause (1); when it is allowed, under the same clause, from the fresh decree or order. Moreover, by a sort of fiction, the learned Judges held that where the original order is modified as is sometimes done in revision, it must be treated as having been amended, with the result that Clause (4) is brought into play. It seems in our opinion somewhat artificial to hold, that modifying an order in revision amounts to amending it, when, as is well known in our processual law, the word 'amendment' does not embrace, correction by a superior Court. There is yet a further difficulty revealed by the judgment of Wallis, J., as he then was, his decision being the one that was upheld in Subramania Pillai v. Seethai Ammal (1911) 24 M.L.J. 457 : I.L.R. 36 Mad. 135. He is constrained to hold that a revision petition may furnish not only two but three starting points, all of them falling under Clause (1):

(1) Where it is simply dismissed, time runs from the date of the original decree;

(2) Where it is dismissed with costs, from the date of the original decree so far as that decree is concerned and from the date of the order of the High Court, so far as it relates to costs;

(3) Where the decree is modified in revision, from the date of the decree as modified.

3. It seems to us that such a straining of words as has led to these contradictory and inconsistent results must if possible be avoided.

4. In Chappan v. Moidin Kutti : (1898)8MLJ231 six learned Judges had to consider the question whether under Clause (15) of the Letters Patent as it stood before the amendment of 1919, an appeal lay from the judgment of a single Judge passed in the exercise of revisional jurisdiction. Clause (15) enacted that an appeal lay to the High Court from the judgment of one Judge of the High Court or one Judge of a Division Court pursuant to Section 13 of the Charter Act. Now turning to the last mentioned section, it provided for the exercise by the Judges of the High Court, of the original and appellate jurisdictions vested in that Court. This raised the question whether revisional jurisdiction was comprised within the term 'appellate jurisdiction' as used in Section 13, for, if it did not, no appeal would lie under Clause 15 of the Letters Patent. It was held by a majority of the Judges that an appeal did lie, provided the order amounted to a 'judgment'. Subramania Aiyar, J., in the course of his judgment points out what the true meaning of the expression 'appellate jurisdiction' is. That may be exercised in a variety of forms and may be invoked sometimes as a matter of right and sometimes subject only to certain specified conditions or limitations, such, for instance, as those prescribed in the provision in the Code relating to the revisional powers of the High Court; but as Subramania Aiyar, J., goes on to observe, no such limitation, however much it may circumscribe the exercise of the power, touches the intrinsic quality of the power itself (p. 81).

5. The wording of Clause 39 of the Letters Patent has given rise to a similar question. It enacts that an appeal lies to the Privy Council from a final judgment or order passed by the High Court on appeal, and that led to the question whether an order made by the High Court in the exercise of its revisional jurisdiction or powers of superintendence, came within the purview of that clause. Mookerjee and Cox, JJ., held in Secretary of State for India in Council v. British India Steam Navigation Co. (1911) 13 C.L.J. 90 that such an order, though made in revision, is appealable as there is no ground for construing the word 'appeal' used in Clause 39 in a narrow sense. Mookerjee, J., after referring to various authorities, quotes Lord Westbury in Attorney-General v. Sillem (1864) 10 H.L.C. 704 who observes that the right of appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. The learned Judge also points out, after referring to Story's Constitution (Vol. II, Sections 1760 to 1766), that the characteristic of an appeal is the revision of the judicial proceeding of an inferior Court, so that the mode in which that power is exercised is wholly immaterial (p. 94).

6. That a remedy by way of revision does not differ in essence from a right of appeal (the only difference being in the mode in which the power is exercised), has often been declared by the Judicial Committee. In Rajah of Ramnad v. Khamid Rowthen (1926) 50 M.L.J. 503 : L.R. 53 IndAp 74 : I.L.R. 49 Mad. 335 their Lordships referring to a Civil Revision Petition thus observe:

From this judgment an appeal in the form appropriate to such a case from the Munsif's Court-i.e., a Civil Revision Petition--was preferred to the High Court of Madras.

7. See also Baijnath Sahai v. Ramgut Singh . In Nagendranath De v. Sureshchandra De (1932) 63 M.L.J. 329 : L.R. 59 IndAp 283 : I.L.R. 60 Cal. 1 the question as to what amounted to an appeal under Article 182(2) arose, and the language of their Lordships in view of the present question raised, though it does not directly bear upon it, is both suggestive and significant. The facts of that case are somewhat complicated, but for the present purpose it is sufficient to state, that there were two sets of mortgagees--the appellants on the one hand and Madan Mohan and his son, described as respondents Nos. 24 and 27, on the other. As between them there was a dispute in regard to a sum of Rs. 4,467 and that was decided in favour of the appellants. Madan Mohan, as one of the decree-holders, applied for a final mortgage decree and in doing so, he again claimed as against the appellants, his co-decree-holders, the sum which had already been disallowed. The Subordinate Judge on the 24th June, 1920, delivered his judgment, again negativing Madan Mohan's claim and passed a final decree for the sale of the mortgaged properties. The decree was drawn up on the 2nd August, 1920, but properly dated as of the 24th June. On the 27th August, 1920, Madan Mohan presented an appeal to the High Court, not from the decrees of the Subordinate Judge, which in truth it was, but from what was wrongly alleged to be an order made on the 24th June. As his objection was only to the decision, in so far as it related to his claim against the other decree-holders, he joined them alone as parties to the appeal and not the judgment-debtors. The appeal, though irregular in form, as not being an appeal against the decree of the Subordinate Judge, and though insufficiently stamped, was admitted and heard by the Court, and in the result, it was dismissed, both on the ground of irregularity and upon the merits, and the dismissal was embodied in the decree of the High Court dated the 24th August, 1922. The appellants on the 3rd October, 1923, presented an application for execution of the decree against the judgment-debtors. It was contended for the latter that the three years were to be calculated from the 24th June, 1920, in which case the application would be manifestly out of time; it would, on the other hand, be within time if the critical date was that of the decree of the High Court of the 24th August, 1922; and the decision of the question depended upon, whether Madan Mohan's appeal, which was dismissed on the latter date, was an appeal within the meaning of Article 182(2). Their Lordships held that any application by a party to an appellate Court to set aside or revise a decree or order of a Court Subordinate thereto is an 'appeal' within the meaning of that provision, even though--

(a) it is irregular or incompetent, or

(b) the person affected by the application to execute were not parties, or

(c) it did not imperil the whole decree or order.

8. It is only the first of these three points that is now material and it is with the words used by their Lordships in this connection that we are here concerned. 'There is no definition of 'appeal' in the Code of Civil Procedure,' they observe:

But their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a Subordinate Court, is an appeal within the ordinary acceptation of that term and that it is no less an appeal because it is irregular or incompetent.

9. True, much importance cannot be attached to the word 'revise' in this passage, as their Lordships were not adverting to what is technically known as a revision petition; but the view that there is no essential difference between a remedy by way of appeal and by way of revision, is considerably reinforced by the passage in question and its value becomes all the greater when we bear in mind that their Lordships made these observations in construing the very provision with which we are now concerned.

10. The only serious objection urged against this view is, that in one and the same Act the same word ought not to be construed in two different senses and that as the word 'appeal' has a narrower meaning in Articles 150 to 157, it would be wrong to give it an extended sense in Article 182. But as a canon of construction, though ordinarily the same meaning should be given to the same words occurring in different parts of the same Act, it is recognised that if sufficient reasons exist, a word can be construed in one part of an Act in a different sense from that it bears in another part (Craies's Statute Law, IVth Edn., p. 153). We think we have shown that cogent reasons exist in the present case and what is more, the word 'appeal' within the ordinary acceptation of that term bears not the narrower but the extended meaning.

11. Our answer to the question referred is therefore in the affirmative.


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