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Sm. K. Ponnalagu Ammal Vs. the State of Madras, Represented by the Secretary to the Revenue Department, Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 134 of 1952 and W.P. No. 317 of 1952
Judge
Reported inAIR1953Mad485; (1953)IMLJ410
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 104
AppellantSm. K. Ponnalagu Ammal
RespondentThe State of Madras, Represented by the Secretary to the Revenue Department, Madras and ors.
Appellant AdvocateK.V. Venkatasubramania Iyer, ;K.S. Desikan and ;N.C. Srikumar, Advs.
Respondent AdvocateR. Kesava Iyengar, ;K.S. Ramamurthi, ;K. Parasoram and ;Government Pleader
DispositionAppeal dismissed
Cases ReferredHambrough v. Hambrough
Excerpt:
civil - right of appeal - sections 96 and 104 of code of civil procedure, 1908 - whether person who is not party to particular suit entitled to prefer appeal against decision in that suit or not - improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by decree or judgment - such leave should be granted to person who though not party to proceeding would be bound by judgment or decree in that proceeding and who will be precluded from attacking its correctness in other proceedings. - - ' 6. lakshmi ammani's karyasthar subsequently filed a further affidavit evidently because of the notification of the marunapuri estate under madras act 26 of 1948. he alleged that even if that act was valid the notification under it would not.....1. l. p. a. no. 134 of 1952:--this is an appeal under the letters patent against the judgment of subba rao j. in c.m.p. no. 13519 of 1950. that petition was filed in the following circumstances. krishna vijaya poochaya naicker, zamindar of marungapuri, an impartible estate situated in tiruchirapalli district, died on 17-9-1926 leaving behind him three widows, lakshmi ammani, ponnalagu ammani and muthulagu ammani. as one of the incidents of impartible estates in southern india is that the estate is descendible to a single heir, the seniormost of the three widows would be first entitled to succeed. the government, on the assumption that lakshmi ammani was the seniormost of the widows, proceeded to exercise powers conferred on them by the madras court of wards act. on 11-7-1927 the following.....
Judgment:

1. L. P. A. No. 134 of 1952:--This is an appeal under the Letters Patent against the judgment of Subba Rao J. in C.M.P. No. 13519 of 1950. That petition was filed in the following circumstances. Krishna Vijaya Poochaya Naicker, Zamindar of Marungapuri, an impartible estate situated in Tiruchirapalli district, died on 17-9-1926 leaving behind him three widows, Lakshmi Ammani, Ponnalagu Ammani and Muthulagu Ammani. As one of the incidents of impartible estates in Southern India is that the estate is descendible to a single heir, the seniormost of the three widows would be first entitled to succeed. The Government, on the assumption that Lakshmi Ammani was the seniormost of the widows, proceeded to exercise powers conferred on them by the Madras Court of Wards Act. On 11-7-1927 the following notification was published in the Fort St. George Gazette and in the Tiruchirapalli district Gazette:

'Under Section 15, Madras Court of Wards Act, 1902, His Excellency the Governor in Council declares Lakshmi Ammani Animal, the pro-prietrix of the Marungapuri estate in the Kulitalai taluk of the Tiruchirapalli District to be incapable of managing her property and directs the Court of Wards to assume the superintendence of that property.

2. The Collector of Tiruchirapalli will discharge in respect of the property the duties imposed on a Collector by the said Act.'

It is common ground that in pursuance of this notification the Court of Wards assumed the superintendence not only of the impartible estate of Marungapuri but also other partible properties left by the deceased zamindar.

2. The late Zamindar left behind him a will dated 30-7-1915 and a codicil dated 10-8-1926. Ponnalogu Ammani alleged that she took the son of her daughter in adoption to her husband on 1-12-1949 under the authority given to her by her husband in the will and the codicil. She appears to have sent a petition to the Government on 6-1-1950 on behalf of the minor adopted son. Lakshmi Ammani filed another petition on 1-5-1950 evidently attacking the validity of the alleged adoption. The Government passed an order, G. No. 2709 on 9-10-1950 dealing with both the petitions and communicated portions of their order to the two widows respectively. The following is the portion of the order communicated to Ponnalagu Ammani:

'(5) With reference to her petition dated 6-1-1950, read above, Sm. Ponnalagu Ammani is informed that the Government have directed the Court of Wards to release from its superintendence the properties pertaining to Marungapauri estate which are now under its superintendence. As however there is dispute as to title to the properties between the senior Zamindarini and the adopted boy the Government have decided to retain custody to enable either of the claimants to obtain suitable orders from the civil Court in regard to the custody of the properties.'

To Lakshmiammani the Government communicated para. 4 of their order, which runs as follows:

'(4). With reference to her petition dated 1-5-1950 read above Sm. Lakshmiammani is informed that the Government have been advised that the adoption made by Sm. Ponnalagu Ammani is valid in law and that she (Sm. Lakshmi Ammani) has no longer any subsisting legal right or title to the impartible and partible properties of the late Zamindar which are in the custody of the Court of Wards and that it is therefore not possible to hand over possession of such properties without an order of a civil Court. The Government have directed the Court of Wards to release the properties from its superintendence. She is informed that in case she does not obtain suitable orders from a civil Court, within a period of three months from the date of receipt of this order regarding the custody of the properties, the Government will, on the expiry of that period, take such steps in regard to them as they may consider suitable and necessary in the light of the legal advice they have received.'

On 17-10-1950, the following notification was published in the Fort St. George Gazette:

'In exercise of the powers conferred by Section 15, Madras Court of Wards Act, 1902 (Madras Act I of 1902) and of all other powers enabling them in this behalf, His Excellency the Governor of Madras hereby rescinds Revenue Department Notification No. 210 dated 11-7-1927, published at page 1079 of Part 1 of the Fort St. George Gazette dated 19-7-1927, declaring Sm. Lakshmi Ammani Animal, the then proprietrix of the Marungapuri estate, in the Kulitalai taluk of the Tiruchirapalli district, to be incapable of managing her property and directing the Court of Wards to assume the superintendence of that property.'

The Government followed it up by another notification a few days later which was published in the Fort St. George Gazette dated 21-11-1950. It was in the following terms:

'It is hereby notified under Section 62, Madras Court of Wards Act, 1 of 1902 that, under orders of Government, the Court of Wards has released from its superintendence the Marungapuri estate in the Kulitalai taluk on the Tiruchirapalli district including the separate and partible properties left by the late Zamindar.'

3. Immediately after this notification Lakshmi Ammani filed in this Court an application under Article 226 of the Constitution for the issue of a Writ of Mandamus or any appropriate writ or order directing the State of Madras and the Court of Wards to deliver possession of the Marungapuri Zamin properties which were in the superintendence of the Court of Wards to her with accounts, records, documents, etc. She also prayed for an 'ad interim' injunction restraining the respondents from parting with the custody of the properties in favour of any person other than her pending disposal of the main application. In the affidavit filed by her karyasthar, after setting out the facts above narrated, he alleged that the Court of Wards was bound to hand over possession of all the properties including the accumulated income only to her and stated that the Court of Wards having assumed management on her behalf & in her right, it would be unjust and incompetent for them to set up the rights of anyone else in derogation of and inconsistent with her rights without surrendering and restoring possession of the properties to her.

4. The Collector of Tiruchirapalli filed a counter affidavit on behalf of the respondents. He stated inter alia that the Government were advised that the adoption was validly made and had the effect of divesting Lakshmi Ammani of the estate and the adopted son became entitled not only to the impartible zamindari but also to the separate and partible properties left by the late Zamindar. The attitude taken up by the Government and the Court of Wards is summed up in para. 5 of the counter affidavit in which the objection was taken that the question as to who is the proprietor of the estate could not be decided in proceedings by way of a writ and the matter could only be decided properly in a civil Court at the instance of either of the two claimants,

5. Lakshmi Ammani's karyasthar filed a reply affidavit alleging that it was not competent to the respondents to raise any objection to the re-delivery of the zamin to her as it was from her they took the zamindari and it was on her behalf that they had been in management of the estate. A legal plea was put forward in the following terms:

'The respondents having accepted the position of guardianship and taken the zamin in that capacity it is not competent for them to assert any hostile title or sot up 'jus tertii' until they had surrendered possession and discharged themselves from the guardianship with which the statute had clothed them.'

6. Lakshmi Ammani's karyasthar subsequently filed a further affidavit evidently because of the notification of the Marunapuri estate under Madras Act 26 of 1948. He alleged that even if that Act was valid the notification under it would not vest in the Government the properties other than the zamindari like the separate properties, jewels, etc., left by the late zamindar, and these had in any event to be re-delivered to her. A schedule was attached to the affidavit setting out in detail the items of properties which would not vest in the Government under Madras Act 26 of 1948.

7. The petition was disposed of by Subba Rao J. He held after a consideration of the facts and the relevant provisions of the Court of Wards Act that the Court of Wards had no power to refuse to give possession to the person who was their ward and who had subsequently ceased to be such, if a third party had paramount rights it was for that party to institute a suit in a civil Court to establish his or her rights. The learned Judge recognised the effect of Madras Act 26 of 1948, namely, that even on his finding Lakshmi Ammani could only claim to recover possession of properties that did not vest in the Government under the provisions of that Act. He therefore directed the respondents to hand over to her the properties belonging to Lakshmi Ammani in their possession excluding the properties that vested in the Government under Madras Act 26 of 1948. This order was passed on 15-4-1952.

8. Neither the State of Madras nor the Court of Wards filed any appeal. But on 22-4-1952 Ponnalagu Ammani filed an application before us asking for leave to prefer a Letters Patent appeal against the order on the ground that neither she nor the adopted son had been impleaded in Lakshmi Ammani's petition, that she was a person whose rights were affected by the said decision and as an aggrieved person she should be granted leave to file an appeal though she was not a party to the petition. In the affidavit filed in support of the application she submitted that even if the adoption were to be disregarded she would be entitled to an equal share in the partible properties left by the late zamindar, and if the adoption were to be upheld neither she nor Lakshmi Ammani would be entitled to any share. We granted leave to appeal as we thought that Ponnalagu Ammani was vitally interested in the subject matter and felt aggrieved by the order passed by Subba Rao J. and we admitted the Letters Patent Appeal. The order granting leave was, however, passed 'ex parte'.

9. A preliminary objection was taken by Mr. Kesava Aiyangar on behalf of Lakshmi Ammani that the appeal was incompetent because Ponnalagu Ammani who was not a party to the petition disposed of by Subba Rao J. could not file an appeal against the order in that petition and there was no provision of law under which this Court had the power or jurisdiction to grant leave to a person not party to a proceeding to prefer an appeal against an order in that proceeding. His contention briefly was that the right of appeal is the creation of a statute and a Court could not enlarge its appellate jurisdiction by its own rules of practice. His contention was obviously based on the assumption that there was something in the Letters Patent which impliedly restricted the right of appeal against judgment or order in any proceeding to the parties to the proceeding.

10. The material provision of the Letters Patent is Clause 15. It runs thus: 'Appeal from the Courts of Original jurisdiction to the High Court in its appellate jurisdiction:-- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not feeing a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107, Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any division Court, pursuant to Section 108, Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any division Court, pursuant to Section 108, Government of India Act made (on or after the 1st day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such division Court shall be to Us, our Heirs or Successors in Our or Their Privy Council, as hereinafter provided.'

The argument was that the word 'judgment' in this clause had the same meaning as the word 'decree' in the Civil Procedure Code and Section 96 of the Code which provides for an appeal from 'every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court' has been construed as conferring that right of appeal only on the parties to the suit who might be aggrieved by the decree.

11. Mr. Kesava Aiyangar relied on the following observation which occurs in the opinion of Sir John Edge in--'S.J. Bhogilal v. Dakore Temple Committee . 'The term 'judgment' in the Letters Patent of the High Court means in civil cases a decree and not a judgment in the ordinary sense.'

In the Code of Civil Procedure we find three expressions used relating to the decisions of Courts, namely, decree, order and judgment. Decree is denned as follows:

' 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order, of dismissal for default.'

'Order' means

'the formal expression of any decision of a civil Court which is not a decree.'

'Judgment' is defined as

'the statement given by the Judge of the grounds of a decree or order.'

Their Lordships of the Judicial Committee evidently had in mind this definition of judgment when they refer to 'a judgment in the ordinary sense'. The scheme of appeals under the Civil Procedure Code is this. Under Section 96,

'Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.'

Under Section 104 an appeal lies from certain orders mentioned in that section and in Order 43. But no appeal ordinarily lies from any other order. In certain cases a second appeal is provided from appellate decrees (Section 100). No appeal lies against a judgment as such, as distinct from a decree or order. Under Clause 15, Letters Patent an appeal lies from 'the judgment' of one Judge of the High Court. This difference in language has led to the view taken by this Court in the leading case -- 'Tuljaram Row v. Alagappa Chettiar', 35 Mad 1 (B) and subsequent decisions following it that certain decisions of Judge on the Original Side of the High Court are subject to appeal under Clause 15, Letters Patent though similar decisions would not be appealable under the Civil Procedure Code. We are not now concerned with the correctness of this view. Sulaiman J. in -- 'Horriram Singh v. Emperor', AIR 1939 P C 43 (C) was inclined to hold that in view of the observation made by the Privy Council in -- ' (A) the word 'judgment' cannot now be taken in its widest possible sense so as to include every order which terminates a proceeding pending in the High Court so far as that Court is concerned. It was not disputed before us that an appeal would lie from the judgment of a Judge of this Court disposing of an application for a writ under Article 226 of the Constitution to a Division Bench though it may not be strictly a decree within the meaning of the Civil Procedure Code. Mr. Kesava Aiyangar's anxiety to equate judgment in Clause 15, Letters Patent with 'decree' in the Civil Procedure Code was to have the benefit of rulings in which it was held that only parties to a suit could appeal against the decree in the suit. Support for this view is apparently sought from the definition of 'decree' as 'the formal expression of an adjudication which conclusively determines the rights of the parties to the suit.' Varadachariar J. in -- 'United Provinces v. Mt. Atiqa Begum , observes at p. 42.

'Section 96, Civil P. C. does not in terms say who is entitled to prefer an appeal, but according to the Code it is the decree that has to be appealed against. The decisions have therefore laid it down as a matter of inference that a party adversely affected by the decree is the only person entitled to appeal.'

Observations in decisions of the Federal Court in appeals sought to be preferred in criminal cases which were relied on by Mr. Kesava Aiyangar appear to us to be entirely irrelevant. Their Lordships in those cases were concerned with the question whether an interlocutory order made in a criminal proceeding could be carried in appeal to the Federal Court, and it was held that it could not be. See -- 'Kuppuswami Rao v. The King .

12. It is equally not necessary to deal with the rulings of English and Indian Courts to which Mr. Kesava Aiyangar referred us for the proposition that there is no inherent right of appeal and the creation of a right of appeal is an act which requires legislative authority and that neither the inferior Court nor the superior Court nor both combined can create such a right -- 'Attorney General v. Sillem', (1864) 10 H L C 704 (F), -- 'National Telephone Co., Ltd. v. 'Postmaster General', (1913) 2 KB 614 (G);--'Pashupati Bharti v. Secretary of State and -- 'Lakhpatram v. Beharilal . In the case before us there is not controversy about the right of appeal as such. The only controversy is as to who is entitled to appeal. On that question the cases referred to above have no bearing whatever.

13. Mr. Kesava Aiyangar concedes that every party to a suit is not entitled as of right to file an appeal against the decree in the suit. The party must be aggrieved. While it has been held that a party who is not aggrieved is not entitled to appeal, it has also been held that even a successful party in a suit can file an appeal against a finding of the Court on one of the issues which is adverse to him, though the final decision is in his favour: 'Vide --'Venkateswaralu v. B. Lingayya', AIR 1924 Mad 689 (J) and -- 'Hara Chandra Das v. Bhola Nath Das', 62 Cal 701 (K). It was laid down in these cases that the test to be applied in each case is whether the finding sought to be appealed against is one to which the rule of res judicata may be held to be applicable so as to disentitle the aggrieved party to agitate the question covered by the finding in any other proceeding. This rule is certainly an extension of the principle that it is only a party adversely affected by the decree that is entitled to appeal (Vide Varadachariar J. at page 42 in -- '.) This extension is evidently based on grounds of justice. Guha J. in --62 Cal 701 (K) says:

'.....The Code of Civil Procedure, by the provisions relating to the right of appeal, as they now stand, does not provide for an appeal against a finding contained in a judgment; the appellants in this Court have, therefore, no right of appeal, under the law. On grounds of justice and recognising that, on that ground, the implication of suitable exception or qualification may be justifiable and even necessary, we are prepared to follow the rule engrafted on the statute by a current of decisions by High Courts in this country, that an aggrieved party may have a right of appeal, and that the test to be applied in such a case is whether the finding sought to be appealed against is one to which the rule of 'res judicata' may be held to be applicable, so as to disentitle the aggrieved party to agitate the question covered by the finding in any other proceeding.'

14. On the immediate question, namely, whether a person who is not a party to a suit or other proceeding is under no circumstance entitled to prefer an appeal against the decision in that suit or proceeding, there is very little authority in India. In -- 'Indian Bank Ltd. Madras v. Bansiram Jashamal', AIR 1934 Mad 360 (L), Madhavan Nair and Jackson JJ. held that neither under the general principles of law nor under the Civil Procedure Code can a person who was not a party to a suit prefer an appeal against the decree therein. In that case the Official Receiver representing the general body of creditors was a defendant in a suit brought by two plaintiffs to declare their title to two items of property. The suit went against the Official Receiver. But he did not file an appeal. One of the creditors thereupon filed an appeal against the decree in the suit and along with it filed an application praying that in the circumstances this Court may be pleased to permit the applicant to appeal against the decree. The learned Judges held that under the Civil Procedure Code no person who is not a party to the suit can prefer an appeal under Section 96 because

'the right of appeal is a special creature of statute and it can be exercised only by those in whom the power is vested expressly or implied by the statute.'

Two decisions of the Chancery Court in England were relied on by the appellant in which leave to a person interested in, but not a party to an action, was given to appeal from an order by which the person was aggrieved. But the learned Judges did not act on those decisions as in their opinion they related to powers of the appellate Court to grant leave to appeal and such power was vested on the practice prevailing in the English Courts. No provision of law or rule of practice, they said, has been shown to them entitling the appellant to claim such leave. But they added that even if such permission could be asked they were not satisfied that it was a proper case in which the permission should be given. This ruling was followed by a single Judge (Abdur Rahman J.) in -- 'Kasi Chettiar v. Secretary of State', AIR 1941 Mad 577 (LA).

15. Mr. Kesava Aiyangar further contended that an appellate Court cannot give leave to appeal unless under a statutory power. In support of this contention he relied on the decisions in -- '; -- '; -- Kishorilal v. Governor in Council, Punjab and--'Ramanayya v. Kotayya', AIR 1930 Mad 75 (N). These decisions are only authority for the position that when under a statute a right of appeal is conferred on an aggrieved party only with the leave of or on a certificate from the Court from which the appeal is sought to be preferred and if such leave or certificate be refused by that Court, an appellate Court: will not have the power to grant the leave or certificate. In the decisions of the Federal Court their Lordships had to consider the effect of Section 205, Government of India Act, 1935, under which an appeal to the Federal Court was available only with a certificate from the High Court. In the earliest of these cases, their Lordships say:

'In the first place though every Court of superior jurisdiction no doubt possesses inherent powers for certain purposes (of which it is unnecessary and perhaps would be unwise to attempt an exhaustive definition) we know of no authority for the proposition that a Court by the exercise of any inherent powers can extend its appellate jurisdiction or increase its revisional authority over other Courts.'

In the later case in -- ' (M), their Lordships point out that a certificate under Section 205 is a necessary condition precedent to all appeals to the Federal Court, and if the High Court refuses to grant a certificate it is not for them to enquire into the reasons for the refusal against which no appeal lay to that Court. We have nothing like that here. There is no provision making such a leave a condition precedent to an appeal like the one under consideration.

16. Mr. Venkatasubramania Aiyar for the appellant relied on the decision in -- 'Province of Bombay v. W. I. Automobile Association', : AIR1949Bom141 (O) and the English practice on which that decision is based. In the Bombay case Chagla C. J. and Bhagwati J. held that a person not a party to a suit may prefer an appeal if he is affected by the order of the trial Court provided he obtained leave from the Court of appeal. The learned Chief Justice observed, as follows:

'The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. But it is clear and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of appeal; therefore-whereas in the case of a party to a suit he has a right of appeal, in the case of a person not a party to the suit who is affected by the order he has no right but the court of appeal may in its discretion allow him to prefer an appeal.'

Bhagwati J. referred to the decision of this Court in -- AIR 1934 Mad 360 (L) and accepted it as authority for the position that no person who is not a party to a suit or proceeding has a right of appeal. But if he was aggrieved by a decision of the Court the remedy open to him was to approach the appellate Court and ask for leave to appeal which the| appellate Court would grant in proper cases. The learned Judge cites a passage from the decision in -- 'In re Securities Insurance Co.', (1894) 2 Ch D 410 (P), where Lindley L. J. said that the practice of the Courts of Chancery both before and after 1862 was well settled that while a person who was a party could appear without any leave a person who without being a party was either bound by the order or was aggrieved by it or was prejudicially affected by it could not appeal without leave.

17. There is abundant authority recognising the existence of such a practice and innumerable instances of such a practice to some of which learned counsel referred us, namely, --'In re Markham Markham v. Markham', (1881) 16 Ch D 1 (Q); -- 'In re Padstow total Loss and Collision Assurance Association', (1882) 20 Ch. D 137 (R); -- 'Attorney General v. Marquis of Ailesbury', (1885) 16 Q B D 408 and -- 'In re Ex Tsar of Bulgaria'. (1921) 1 Ch D 107 (T). The position is thus stated in the Annual Practice for 1951 at page 1244:

'Persons not parties on the record may, by leave obtained on an 'ex parte' application to the Court of appeal, appeal from a judgment or order affecting their interests, as under the old practice.'

Halsbury's Laws of England, Vol. 26, page 115, gives the same rule in a different form:

'A person who is not a party and who has not been served with such notice (notice of the judgment or order) cannot appeal without leave, but a person who might properly have been a party may obtain leave to appeal.'

Several instances are referred to in the footnote and the limits of the rule can be gathered from these instances. Leave will not be given where the applicant could not have been a party and application for leave must be made within the time limited for the appeal. The reason for the practice apparently is the principle that a person who could have been made a party and who might have appealed could not afterwards bring an action to declare that the judgment or order was not binding on him (Vide--'In re Harnbrough's Estate; Hambrough v. Hambrough', (1909) 2 Ch 620 (U).)

18. In more or less similar terms the rule and its limits are stated in Seton on Judgments and Orders, 7tb Edn., Vol. 1, at p. 824,

'Where the appellant is not a party to the record he can only appeal by leave to be obtained on motion 'ex parte' from the Court of Appeal..... Leave to appeal will not be given to a person not a party unless his interest is such that he might have been made a party.'

Mr. Kesava Aiyangar of course could not deny that such a practice was well established in England. But he contended that such a practice could not be followed by our Courts, governed as we are by the Civil P. C. and the Letters Patent. We do not see why. The very doctrine on which Mr. Kesava Aiyangar rests his whole case, namely, that a right of appeal is a creature of statute and an appellate Court cannot create a right of appeal is founded on English authorities like--(1864) 10 HLC 704 (F)'. The provisions as regards appeal in England are not materially different from those contained in the Civil Procedure Code or Letters Patent. In neither of them is there any express mention of persons who could appeal. In our opinion the practice consistently followed by the English Courts is a just and equitable practice and is in no way inconsistent with the doctrine that a right of appeal can only be created by statute. With respect to the learned Judges of the Bombay High Court we agree with them that there is no reason why the practice should not be followed by Courts in India.

19. Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceeding, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings. We can give as an instance the case where an Official Receiver impugnes an alienation by the insolvent and sues to set it aside and fails. If he does not appeal the decision of the trial Court would be final and binding not only on him but also on all the creditors. In such a case, if the Official Receiver does riot choose to file an appeal an aggrieved creditor should ordinarily be given leave to appeal if he shows a prima facie case against the order sought to be appealed. A more or less similar test has been applied to cases where a successful party has been allowed to file an appeal against an adverse finding. (Vide--AIR 1924 Mad 689 (J) and -- 62 Cal 701 (K).)

20. Applying that test, can we say that Ponnalagu Ammani will be bound by the judgment of Subba Rao J. in the application filed by Lakshmi Ammani to which she was not a party? We think not. The Court of Wards cannot be said to have represented her. The judgment of Subba Rao J. was in no sense a judgment 'in rem'. It is binding only as between Lakshmi Ammani and the Government and the Court of Wards. Mr. Venkatasubramania Aiyar when he says that the judgment of Subba Rao J. affects his client adversely, means not that the decision affects her legal rights but that the carrying of it into effect would adversely affect her, that is, if and when the Government and the Court of Wards deliver possession of the properties to Lakshmi Ammani as directed by that judgment. But it will be open to Ponnalagu Ammani to prevent the happening of such a thing by taking other steps. In these circumstances we do not think that this is a fit and proper case in which leave to appeal should be granted. We, therefore, hold that the appeal is incompetent and dismiss it.


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