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Atyam Venkatasubbarayudu and anr. and Vs. Sri Rajah Velugoti Govinda Krishna Yachendrulu Varu Bahadur Zamindar Garu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.873
AppellantAtyam Venkatasubbarayudu and anr. and ;bachoti Bhavan Narayana Sastri
RespondentSri Rajah Velugoti Govinda Krishna Yachendrulu Varu Bahadur Zamindar Garu
Cases ReferredRavi Veeraraghavulu v. Bomma Devara Venkata Narasimha Naidu Bahadur
Excerpt:
civil procedure code (act v of 1908), sections 114 and 117 - letters patent (mad.), section 15--appeal--judgments--review, maintainability of--high court, jurisdiction of. - .....that the high court cannot entertain a review in appeals preferred under section 15 of the letters patent. the question is practically res integra as the decision in hafiz muhammad mohsin v. sheo prasad 1 a.l.j. 509, in which the point was directly raised, gives no reason for the conclusion arrived at.2. after hearing the matter fully argued by the learned vakils on either side, we are of opinion that there is no force in the objection. section 44. of the letters patent says that the provisions are subject to the legislative powers of the governor-general in council. as at present advised, we are in agreement with mr. subramania aiyar that this provision would not enable courts, by implication, to supplement the letters patent by importing into it all acts ejusdem generis passed.....
Judgment:

1. Mr. Subramania Aiyar has taken the preliminary objection that the High Court cannot entertain a review in appeals preferred under Section 15 of the Letters Patent. The question is practically res integra as the decision in Hafiz Muhammad Mohsin v. Sheo Prasad 1 A.L.J. 509, in which the point was directly raised, gives no reason for the conclusion arrived at.

2. After hearing the matter fully argued by the learned Vakils on either side, we are of opinion that there is no force in the objection. Section 44. of the Letters Patent says that the provisions are subject to the legislative powers of the Governor-General in Council. As at present advised, we are in agreement with Mr. Subramania Aiyar that this provision would not enable Courts, by implication, to supplement the Letters Patent by importing into it all Acts ejusdem generis passed by the Governor-General in Council and that the provision is only intended to empower the Governor-General in Council to legislate with a view to supplement omission in the Letters Patent. Even in this view, we think that by Section 117 of the Code of Civil Procedure (Act V of 1908) the Governor-General in Council did incorporate into the Letters Patent the provisions relating to review. It was then argued that the review Section 114 of the Code (Act V of 1908) cannot apply as it provides only for the review of decrees or orders passed under the Code of Civil Procedure. We are not impressed by this argument. In the first place, decrees are passed in appeals Heard under the Letters Patent only under the Code of Civil Procedure. In the second place, Clause (6) of Section 114 does not require that orders and decrees should have been passed under the Code. Further, the word decree or order includes a judgment. [Krishen Doyal v. Irshad Ali 31 Ind. Cas. 965. Mr. Subramania Aiyar relies on Sabhapathi Chetti v. Narayanasami Chetti 25 M.K 555 for the proposition that Section 15 of the Letters Patent is not controlled by the Code of Civil Procedure. All that was decided in that case was that as Section 15 had given an unlimited power of appeal against every judgment of a single Judge, the Governor-General in Council should not be understood to have taken away by implication that power of the litigant by making Section 540 of the Code (Act XIV of 1882) applicable to Chartered High Courts. This does not contravene the principle that it is competent to the Governor-General in Council to supplement the remedy of appeal by giving an additional remedy by way of review to the litigant.

3. The decisions in Babaji v. Babaji 15 B.K 650, Lala Pryag Lal v. Jai Narayan Singh 22 C.L 419 and Nana v. Sheku 10 Bom L.R. 330, only lay down that a self contained Act should not be added to by the provisions of the Code of Civil Procedure. This does not affect the present question.

4. Mr. Ramachandra Aiyar has referred us to two reported cases and to an unreported decision, in which reviews under similar circumstances were entertained. Apparently the practice by this High Court has been in favour of allowing reviews to, be filed in appeals under the Letters Patent.

5. It was pointed out by the Judicial Committee in Ravi Veeraraghavulu v. Bomma Devara Venkata Narasimha Naidu Bahadur 16 Bom. L.R. 853 that even though a strict construction of the law may not permit of the entertainment of appeals, a long standing practice of the Court should not be lightly departed from in that respect. What relates to appeals applies mutatis mutandis to reviews also. We must, therefore, overrule the preliminary objection. If we are to interfere in review in these cases, it can only be by up setting conclusions of fact at which the learned Judges who heard the appeal arrived. We are not prepared to adopt this procedure.

6. The petitions are dismissed with costs.


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