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Nakka Appala Naidu Vs. Nakka Latchu Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1948)1MLJ280
AppellantNakka Appala Naidu
RespondentNakka Latchu Naidu and ors.
Cases ReferredHoare & Co. v. Morskead
Excerpt:
- - dikshitulu, novel and interesting as it is and bereft of any direct authority in our courts, did seem at first blush to be one of substance, but on a careful and critical examination, did not appear to be a difficult one. apart from these remedies, the respondent contends there is no power vested in this court to scrutinise the sufficiency or otherwise of the security in an application like this. 's order dated the 18th march, 1947, was a final one and it is not open to me to direct further security to be taken when the district munsiff was satisfied that the security tendered was sufficient......for the said sum of rs. 1,200. the sufficiency of this was objected to by opposite party but the learned district munsiff after ascertaining the value of the property and considering the objections raised as regards sufficiency, found that the share of the party offering security, in the wet lands itself, was worth about rs. 1,700 and accepted the security as sufficient and satisfactory. thereupon, the respondent in second appeal who was also the 11th respondent in c.m.p. no. 88 of 1947 feeling aggrieved by the order of the district. munsiff accepting the security, has moved this court by this petition to direct the appellant to furnish additional security for the sum of rs. 1,000 in order that the order of this court in c.m.p. no. 88 of 1947 may be properly complied with. in support.....
Judgment:
ORDER

Govinda Menon, J.

1. The point by Mr. Dikshitulu, novel and interesting as it is and bereft of any direct authority in our Courts, did seem at first blush to be one of substance, but on a careful and critical examination, did not appear to be a difficult one. On the 18th March, 1947, my learned brother Yahya Ali, J., in C.M.P. No. 88 of 1947 (S.A. No. 1809 of 1946) made the following Order :

Interim stay of the passing of final decree is made absolute on condition that petitioner furnishes security ot the satisfaction of trail Court for the sum of Rule 1, 200 towards mesne profits within eight weeks.

2. The trail Court was the District Munsiff of Chicacole. In pursuance of this order the petitioner in C.M.P. No. 88 of 1947 offered a half share of the properties involved in the second appeal as security for the said sum of Rs. 1,200. The sufficiency of this was objected to by opposite party but the learned District Munsiff after ascertaining the value of the property and considering the objections raised as regards sufficiency, found that the share of the party offering security, in the wet lands itself, was worth about Rs. 1,700 and accepted the security as sufficient and satisfactory. Thereupon, the respondent in second appeal who was also the 11th respondent in C.M.P. No. 88 of 1947 feeling aggrieved by the order of the District. Munsiff accepting the security, has moved this Court by this petition to direct the appellant to furnish additional security for the sum of Rs. 1,000 in order that the order of this Court in C.M.P. No. 88 of 1947 may be properly complied with. In support of this application, an affidavit by the first respondent has been filed and in it, various facts are set forth to show that the District Munsiff was wrong in accepting the security as sufficient, for the reason that the properties tendered as security would not be sufficient for any amount over Rs. 200. The allegations in this affidavit are controverted by a counter filed by the first appellant in the second appeal to which there is a rejoinder in the nature of a reply affidavit affirming and restating the objection's raised in the affidavit in support of the application.

3. In these circumstances the question that has been raised is whether this Court can look into the matter afresh and find out whether the order of the District Munsiff is correct on the facts and on the merits. In short, the contention raised is that as the properties tendered as security were not at all sufficient for the sum of Rs. 1,200 and if the District Munsiff had merely considered the matter, he would have perceived the patent mistake committed by him, from the circumstance that the respondent to this petition is not entitled to a half share in the entire properties but only to a half share in 4 acres 40 cents of dry lands the value of which after deducting the charge for Rs. 500 already created therein would not exceed Rs. 200.

4. On behalf, of the respondents it is contended that this Court has already made a final order on the 18th March, 1947, and that it cannot further re-open the whole question to decide for itself whether the security was sufficient or not. It is urged that the petitioner's remedy, if any, is to apply to the lower Court for review of the order if there are materials sufficient to justify the review, or to move this Court to revise the order of the lower Court under Section 115 of the Civil Procedure Code in case there are reasons justifying such a revision. Apart from these remedies, the respondent contends there is no power vested in this Court to scrutinise the sufficiency or otherwise of the security in an application like this. Mr. Dhikshitalu for the petitioner argues that when the District Munsiff was asked to take security for the sum of Rs. 1,200 to his satisfaction, he acts as an agent of this Court and it is open to the High Court to affirm, modify or alter his conclusion accepting the security; and therefore until the High Court affirms the correctness of the acceptance of security, there is no finality in the proceedings. The action of the District Munsiff in accepting or refusing to accept the security is only that of an agent subject to the approval of the principal who in this case is the High Court. On the other hand, the respondent contends that the order dated 18th March, 1947, has become final and cannot be modified or altered in these proceedings.

5. For a proper understanding of the point involved, it is necessary to analyse and ascertain under what jurisdiction the District Munsiff acts when proceedings are taken in pursuance to the order of this Court. It cannot, for a moment, be said, as alleged by the petitioner, that the District Munsiff is an agent or commissioner appointed under Order 26 of the Civil Procedure Code. The Court of the District Munsiff is one subordinate to the High Court in. virtue of the provisions of the Madras Civil Courts Act of 1873 and of Section 224 of the Government of India Act, 1935 (Section 107, Government of India Act, 1915). Mr. Dhikshitalu's contention that the District Munsiff acts only in the capacity of an agent, or commissioner who has certain powers delegated to him is to my mind unacceptable. Mr. Dhikshi-talu admitted that this argument if pushed to its logical extreme would come to this, that a District Munsiff can refuse to act when ordered by the High Court to examine the security for it is not obligatory upon an agent or commissioner to accept and act if he is not so inclined, under the directions of the principal or a Court. This argument overlooks the superintending powers of the High Court over the Subordinate Courts and a mere statement of Mr. Dhikshitalu's argument is sufficient to show the hollowness of it.

6. Certain decisions of the English Courts have been brought to my notice in support of his argument by the learned Counsel for the petitioner. The first of them is Ross v. The York Newcastle and Berwick Railway Co. 18 L.J. Q.B.N.S. 199 and reliance is placed on the following observations in the judgment of Erle, J., for justifying the contention of the learned advocate:

Where the Court refers taxation to its officer, it has the power of reviewing because the power by the officer is delegated to him by the Court, and his act is not effective unless adopted by the Court.

7. This sentence, taken from its context, no doubt affords some plausible justification for the argument but if the facts of the case are carefully looked into, I am afraid the case is not authority for the contention put forward. In that case, according to a certain parliamentary enactment it was open to a railway company to issue warrants to the Sheriff to summon a jury to assess the amount of compensation: payable for the acquisition of a piece of land from its owner. The jury was sum-moned and a sum of money was fixed as compensation. There was a further provision in the statute that in case amount offered to the owner prior to the sum-moning of the jury was not less than the amount which the jury had fixed, it was open to the company to apply to a Master of the Court of Queens Bench in England to assess the amount of costs due to the company. Accordingly, when the Master assessed the amount of costs, the aggrieved party moved the Court of the Queens Bench for a rule for the Master to review his taxation of costs. On this a preliminary objection was taken that in reference to this taxation of the costs, the Master was an original arbitrator and therefore the Court has no power to review the decision of the Master in the matter so referred to him. The learned Judges of the Queens-Bench (Erle and Weightman, JJ.) upheld the preliminary objection and held that when the Master was appointed to assess the amount of costs he was only a persona designata and the assessment or award was final and not subject to review by the Court of the Queens Bench. In discussing this aspect of the case the learned Judges observed that if the taxation was done by the Master as an officer of the Court, then, such action of his being the result of a delegation of the power from the Court may be subject to review by the Court. I do not think that this case: can in any way help the petitioner. The next case on which reliance is placed was Owen v. The London and North Western Railway Co. 37 L.J.Q.B. 35. Here also the Master of the Court was empowered under Section 52 of the Lands Clauses Act of 1845, to assess the amount of costs payable to the successful party. On the application made by the aggrieved party to the Court of Queens Bench Division to review the order of the Master, the learned Judges (Cockburn, C.J., Shee, Lush and Mellor, JJ.) declined to do so on the ground that the Court had no jurisdiction to review the order of the Master. The learned Chief Justice points out that the Master as an officer of the Court was delegated with certain powers of the Court and if he were acting in that capacity the Court has necessarily jurisdiction to control the delegated authority in the event of there being anything which the Court may think wrong in its exercise. But where the Legislature has thought proper to give the power of taxation and impose the duty of the taxation no,t on the Court, but simply on one of the Masters of the Court, without in any way rendering it necessary that the Court should interfere, it was held that the Court had no autho-rity over the Master as he was acting in his individual capacity. The other learned Judges in separate but concurring judgments, agreed with the learned Chief Justice. These two decisions were followed by the Court of Appeal in In the matter of an arbitration between the Sandback Charity Trustees and the North Staffordshire Railway Co. (1877) 3 Q.B.D. 1 where Bramwell, Brett and Cotton, JJ., held that where the costs of an inquiry before the arbitrators under the Lands Clauses Consolidation Act are taxed and settled as between the parties by one of the taxing Masters of the superior Courts; of Law under Section 1 of 32 and 33 Viet., Chap. 18, the Court has no jurisdiction over the Master's taxation on a motion to review.

8. These decisions, far from supporting the point raised on behalf of the petitioner run contrary to his contention. The raison d'etre of the above decisions is that where an act of Parliament designates an officer of the Court to do certain functions, the Court has no power to review or modify his proceedings even though as an officer of the Court he is subordinate to the Court itself.

9. The only Indian case to which my attention was drawn is a decision of S.K. Ghose and Patterson, JJ., in Bibhabati Debi v. Ramendra Narayan Roy (1937) 42 C.W.N. 188. The facts of that case are that the Calcutta High Court in its appellate jurisdiction directed security to be furnished by a party to the satisfaction of the Registrar of the Original Side of that Court. It was held that the decision of such authority on the sufficiency of the security cannot be questioned by means of an appeal or application because the High Court cannot go behind his finding. It was further held that the High Court however can review its order on proper grounds such as that the authority designated has not acted in accordance with the order or has acted improperly or has not come to any finding on the sufficiency or otherwise of the security. Adverting to a decision of the Kings Bench in Hoare & Co. v. Morskead (1903) 2 K.B. 359 the learned Judges observed as follows:

In that case under Order XLV, Rule 6 an order was made by the Master, granting the defendant leave to defend upon giving security for the amount claimed to the satisfaction of the Master within a certain time and that order was affirmed by the Judge, Then the matter went back to the Master and he decided that the security offered was insufficient. Against that order an appeal was filed. It was contended in support of the appeal that where an order was made that security should be to the satisfaction of the Master, he really acts by virtue of a delegation of the power of a Judge to him and his decision must be subject to review by the Judge himself. This argument did not find favour with the Court. It was contended on the other hand in opposition to the appeal that if the defendant's contention was right there might be series of appeals. This argument found favour with the Court and Mathew, L.J., in the judgment, referred to it as one of the grounds on which he held that the appeal did not lie. It was held also that the Master was not acting in the exercise of his jurisdiction as Master but as persona designata.

10. Reading this decision as a whole it appears to me that the learned Judges were of the view that when security was directed to be taken to the satisfaction of the Regis-trar on the Original Side, that officer functions not as a Court but as a persona designata.

11. In the case under consideration now, the order was that security should be furnished to the satisfaction of the trial Court and that makes all the difference between the Calcutta case and the present one. It cannot be said that here the District Munsiff was persona designata but as the order itself shows, he was functioning as a Court. At page 190, first column of the report, Ghose, J., makes a distinction between cases of an order requiring security to the satisfaction of the lower Court and one directing security to be taken to the satisfaction of the Registrar. Even then, the learned Judge observes that in such cases the intention in making an order is that the lower Court should finally dispose of the matter and that it should not again come up to the High Court. To this extent the observation is applicable to the present case though it was obiter in so far as that case was concerned.

12. When this Court directed security to be taken to the satisfaction of the lower Court it cannot for a moment be doubted that the proceedings before that Court were to be taken as a Court of inferior jurisdiction subject to the liability of superin-tendence by this Court and as stated already, the District Munsiff in testing the security and accepting it was functioning as a subordinate Court subject to the revisional jurisdiction of this Court. He also had a right to review the matter on suitable grounds as laid down in Order 47 of the Civil Procedure Code. Such being the case, the proper remedy to be followed by the petitioner herein is to apply to the District Munsiff to review his order if there are sufficient grounds for that or to move this Court to revise the order of the lower Court under Section 115 of the Civil Procedure Code if there are sufficient reasons justifying such a course. Without adopting either of these alternatives, the petitioner, in directly moving this Court to order the District Munsiff to take further security is pursuing a mis-conceived remedy, the analogy of the Master of the High Court or the Master attached to Courts in England is not at all apt. In England under the Judicature Act of 1873 there is only one Supreme Court of Judicature divided into two parts, the High Court of Justice and the Court of Appeal. Both are parts of one and the same Supreme Court. For convenience in transacting business, it is divided into various divisions of which the Chancery Division consists of the Lord Chancellor, the Master of the Rolls with some Judges and the Kings Bench Division consists of the Lord Chief Justice and some other Judges. Except that an appeal from the Kings Bench Division or the Chancery Division goes to the Court of Appeal there is no superintendence by the Court of Appeal over either the Chancery Division or the Kings Bench Division. In fact the Lord Chief Justice who usually sits in the Kings Bench Division is superior in status to an ordinary Lord Justice who sits in the Court of Appeal. The Master of the Rolls who presides over one of the divisions of the Court of Appeal is, in status, inferior to a Lord Chief Justice. The ordinary Law Lords take precedence only subject to the precedence of the Lord Chief Justice. In this country the High Court has powers of superintendence in administrative and other matters over all the subordinate Courts in the Province, and the District Court in turn has got superintendence over the other Courts in the District. In England the Court of Appeal has no administrative control or superintendence over the Kings Bench or Chancery Division or for the matter of that ever over the country Courts. No doubt the Lord Chancellor has adminis-trative control over the Courts. He does not function in such administration as a Judge. Moreover, such interchanges, e.g., of a Law Lord becoming a Master of the Rolls or a Lord Chief Justice or a retired Lord Chancellor becoming a Lord Chief Justice cannot take place in India. Here we have different gradations of Courts the superior one having administrative control over the inferior and therefore when a superior Court directs an inferior Court to take security the subordinate Court acts not as persona designata but as a Court subject to the revisional or the appellate jurisdiction of the Court which orders the same. The order of this Court dated the 18th of March, 1947, imposed the duty of testing and accepting or rejecting the security upon the ' trial Court' and not upon any particular officer. It was not directed to a particular District Munsiff by name to clothe him with the status of an agent or commissioner so that he alone can perform the functions of testing the security. According to the terms and spirit of the order any officer who presides over the trial Court is competent to test the security and therefore the transfer of an officer who has started the enquiry to some other Court will not prevent his successor from continuing the same. This circumstance is a further indication to show that the District Munsiff is not an agent or a commissioner but only a subordinate Court to whom a certain task has been assigned by the High Court. It seems to me that my learned brother Yahya Ali J.'s order dated the 18th March, 1947, was a final one and it is not open to me to direct further security to be taken when the District Munsiff was satisfied that the security tendered was sufficient.

13. For the above reasons I am of opinion that this petition must be dismissed.


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