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Swarnavalli Achi and anr. Vs. P.L.N.K.M. Nagappa Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1948Mad331; (1948)1MLJ230
AppellantSwarnavalli Achi and anr.
RespondentP.L.N.K.M. Nagappa Chettiar
Excerpt:
- - 6. in my opinion, for the reasons given, this application must fail and be dismissed with costs......at madras...made on appeal, and from any final judgment, decree or order made in the exercise oforiginal jurisdiction by judges of the said high court, or of any division court from which an appeal shall not lie to the said high court under the provisions contained in the 15th clause....4. it is to be observed that clause 39 confers a right of appeal to the privy council in two instances or circumstances : (1) in respect of any final judgment, decree or order of the high court made on appeal, and (2) from any final judgment, decree or order made in the exercise of original jurisdiction by the judges of the high court.5. it was conceded that the right of appeal, referred to in (1), is subject to the legislation contained in sections 109 and 110 of the code and that there is no.....
Judgment:

Frederick William Gentle, C.J.

1. This is an application for leave to appeal to His Majesty in Council against a decision on appeal of this Court which reversed a decision of Kunhi Raman, J., given in the exercise of Ordinary Original Civil Jurisdiction of this Court which, in turn, reversed a decision of the learned Master.

2. The relevant facts are the following : A decree was passed by the Court of the Subordinate Judge of Devakottah in O.S. No. 112 of 1934 for approximately a sum of Rs. 9,000 together with interest and costs. That decree was transferred to this Court for execution. The learned Master, before whom the execution petition came, held that the petition was barred by the provisions of the law of limitation and dismissed the application. Kunhi Raman, J., reversed the learned Master's order and directed execution to issue. At the date of the disposal of the matter before the learned Judge a sum approximately of Rs. 13,000 was due in respect of the decree, the addition of about Rs. 4,000 representing further interest and costs in the suit and proceedings. The matter came before this Court on appeal and the conclusion was expressed that the execution petition was barred and it was dismissed.110 of the Code inasmuch as the amount or value of the subject-matter of the suit in the trial Court was less than Rs. 10,000 and he also conceded that the amount of additional interest and costs cannot be added to the amount of the decretal debt for the purpose of the ascertainment of the value in arriving at a conclusion whether an appeal to the Judicial Committee lies. Further, learned Counsel did not argue that the subject-matter of the appeal in respect of which this application is made can be brought within Clause (c) of Section 109 of the Code.

3. Mr. Viswanatha Sastri, however, contended that an appeal does lie by virtue of the provisions of Clause 39 of the Letters Patent. The relevant provisions of the Clause read as follows:.any person or persons may appeal...in any matter not being of criminal jurisdiction from any final judgment, decree or order of the said High Court of Judicature at Madras...made on appeal, and from any final judgment, decree or order made in the exercise oforiginal jurisdiction by Judges of the said High Court, or of any Division Court from which an appeal shall not lie to the said High Court under the provisions contained in the 15th clause....

4. It is to be observed that Clause 39 confers a right of appeal to the Privy Council in two instances or circumstances : (1) in respect of any final judgment, decree or order of the High Court made on appeal, and (2) from any final judgment, decree or order made in the exercise of original jurisdiction by the Judges of the High Court.

5. It was conceded that the right of appeal, referred to in (1), is subject to the legislation contained in Sections 109 and 110 of the Code and that there is no additional right of appeal, conferred in that respect by the clause, to that found in the abovementioned sections. It was, however, contended that the second right of appeal conferred by the Clause has application in the present instance. It was argued that the decision in appeal by this Bench from the decision given in the exercise of the original jurisdiction of this Court is a final judgment, decree or order in the exercise of original jurisdiction. I am unable to accept that contention. The appeal from the decision of Kunhi Raman, J., was preferred to this Court pursuant to the provisions of Clause 15 of the Letters Patent which confers, not original, but, appellate jurisdiction upon this Court to entertain an appeal against the decision of a single Judge and when the appeal in the present instance was entertained and heard, it was pursuant to the appellate jurisdiction conferred by Clause 15. Whilst the appeal relates to a matter decided in the exercise of ordinary original civil jurisdiction, the appeal itself was not in the exercise of that jurisdiction, but as mentioned, in the exercise of appellate jurisdiction. That being the position, the judgment in respect of which the present application for leave to appeal is made is not a final judgment, decree or order made in the exercise of the Court's original jurisdiction. Since it was not such an order, it does not come within Clause 39 of the Charter and there is no right of appeal specially conferred in respect of it.

6. In my opinion, for the reasons given, this application must fail and be dismissed with costs.


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