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R. Sundaresan and Two ors. Vs. A. Ramachandran and Co. by Partner Ramachandran and Two ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1981)1MLJ389
AppellantR. Sundaresan and Two ors.
RespondentA. Ramachandran and Co. by Partner Ramachandran and Two ors.
Cases Referred(P) Ltd. v. Union of India
Excerpt:
- orderv. ratnam, j.1. the question of the maintainability of an appeal under section 25 of the tamil nadu debt relief act, 1979(xl of 1979) arises for consideration in this matter under the following circumstances. the appellants filed i. a. no. 1239 of 1979 in o. s. no. 119 of 1971, principal sub-court, salem, under sections 14(2) and 16 of the tamil nadu debt relief act, 1979(xl of 1979), praying for setting aside the ex parte decree dated 14th june, 1971, as null and void and also for an amendment of the decree. the application was dismissed by the learned principal subordinate judge, salem, by his order dated 24th december, 1980. against that order, the appellants preferred a civil miscellaneous appeal under section 25 of the tamil nadu debt relief act, 1979(xl of 1979). the office.....
Judgment:
ORDER

V. Ratnam, J.

1. The question of the maintainability of an appeal under Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) arises for consideration in this matter under the following circumstances. The appellants filed I. A. No. 1239 of 1979 in O. S. No. 119 of 1971, Principal Sub-Court, Salem, under Sections 14(2) and 16 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979), praying for setting aside the ex parte decree dated 14th June, 1971, as null and void and also for an amendment of the decree. The application was dismissed by the learned Principal Subordinate Judge, Salem, by his order dated 24th December, 1980. Against that order, the appellants preferred a Civil Miscellaneous Appeal under Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979). The office returned the papers raising a question as to how the Civil Miscellaneous Appeal is maintainable and requiring the counsel for the appellants to furnish any authority in support of the maintainability of the appeal. The papers were thereafter re-presented stating that the appeal would lie as per Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979). The office nevertheless entertained doubt whether in view of the amendment of Section 2(2), Code of Civil Procedure, by Act CIV of 1976 the adjudication on an application under Section 14(2) and 6 of the Tamil Nadu Debt Relief Act. 1979(XL of 1979) would still be deemed to be a decree within the meaning of Section 47, Code of Civil Procedure and appealable as such under Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979). Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) so far as it is relevant purpose, reads as follows:

An appeal shall lie from any of the following orders passed by a Court under this Act, as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 7 of the Code of Civil Procedure, 1908(Central Act V of 1908).

Under Section 25(1)(a) to (g) orders passed under certain provisions of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) have been Made appealable. The order in the present case would fall under Section 25(1)(6). Section 25(2) provides for a second appeal on the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure, 1908 and that section reads as under:

From any order passed on an appeal presented to it under the provisions of Sub-section (1) by a Court subordinate to the High Court an appeal shall lie to the High Court on any of the grounds mentioned in Sub-section (1) of Section 100 of the Code of Civil Procedure, 1908(Central Act V of 1908).

That under Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979), the legislature thought fit to confer a right of appeal in matters falling under Section 25(1)(a) to (g) is very clear. The question is, whether as a result of the amendment of Section 2(2), Code of Civil Procedure, deleting from the scope of the definition of a decree an adjudication under Section 47, Code of Civil Procedure, the right of appeal is in any manner curtailed. The argument raised against the maintainability of the appeal is that only by reference to Section 47, Code of Civil Procedure, the effect of an adjudication under the Act is equated to that of a decree and when an adjudication under Section 47, Code of Civil Procedure cannot itself be a decree within the meaning of Section 2(2), Code of Civil Procedure, as a result of the amendment introduced by Act CIV of 1976 the appeal would be incompetent. Though the provisions of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) were passed and also published after the amendments to the Code of Civil Procedure were effected by Act CIV of 1976, yet the legislature thought fit to confer the right of appeal under Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) as if the adjudication under certain provisions of the Act amounted to a decree within the meaning of Section 47, Code of Civil Procedure. It can not be assumed that the legislature was unaware of the amendments made to the Code of Civil Procedure by Act CIV of 1976. But yet, the right of appeal under Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) has been conferred against a class of adjudications, as if the adjudication related to the execution, discharge or satisfaction of a decree within the meaning of Section 47, Code of Civil Procedure.

2. Stemming from a statute, a right of appeal is a substantive right and any provision conferring such a right should be interpreted with a liberality which would favour an appeal being entertained rather than a stringency that would defeat it. The words of Section 25 of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) are clear and in favour of an appeal and there is no ambiguity. The use of the words 'as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code of Civil Procedure clearly indicates that as a result of a fiction the effect of an adjudication under the provisions of the Act is placed on a par with that of & decree which, otherwise it is not. In Corpus Juris, Volume 25, page 1036 fiction is defined as under:

A legal assumption that a taking is true which is either not true or which is probably false as true; as assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place, an allegation in legal proceedings that does not accord with the actual facts of the case, and which may be contradicted for every purpose, except to defeat the beneficial and for which the fiction is invented and allowed.

3. It is also pertinent to recall in this connection the oft quoted passage of Lord Asquith in East and Dwellings Co. Ltd. v. Finsbury Borough Council (1952) A. C. 109, which brings out very clearly the legal effect of a legal fiction:

If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corrolaries of that state of affairs.

The above passage has been referred to with approval by the Supreme Court in several earlier cases and also in Industrial supplies (P) Ltd. v. Union of India : [1981]1SCR375 . At page 1864, it has been pointed out that when a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created and after ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried out also to its logical conclusion and in order to do so, the court has to assume all the facts and consequences which are incidental or inevitable corrollaries. The use of the words 'as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code of Civil Procedure' in Section 25(1) of the Tamil Nadu Debt Relief Act, 1979(XL of 1979) clearly indicates that though the effect of the order passed under the Act is not that of a decree and even if the effect of an adjudication under Section 47, Code of Civil Procedure is taken outside the scope of the definition of a decree under Section 2(2), Code of Civil Procedure such an adjudication shall nevertheless be treated as a decree, though in fact and also in law it is not. It must also be noticed that the application in the present case has been filed in the suit itself and if the order on such an application satisfies the characteristics of a decree, the mere fact that the order is deemed to be one passed under Section 47, Code of Civil Procedure, which, as a result of the amendment is taken out of the category of decrees as defined in Section 2(2), Code of Civil Procedure, would not be of any consequence. In view of the aforesaid considerations, the doubt entertained by the office is, thoroughly unfounded and is unsupportable as well. The office is, therefore, directed to entertain the appeal and number the same, if the papers are otherwise in order.


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