Kerala High Court
John George vs Stewards Association In India on 27 September, 2006
Equivalent citations: AIR2007KER57, 2006(4)KLT405, AIR 2007 KERALA 57, 2007 (2) AIR KAR R 374, 2007 A I H C 1268, ILR(KER) 2006 (4) KER 426, (2006) 3 KER LJ 670, (2006) 4 KER LT 405
Bench: Kurian Joseph, K. Balakrishnan Nair
JUDGMENT V.K. Bali, C.J.
1. The Stewards Association in India, which is a society registered under the Tamil Nadu Societies Registration Act filed a suit for recovery of the possession of the plaint schedule property from the defendants and also for realisation of mesne profits at Rs. 1,800/- per year. The burden of the plaint was that the plaint schedule properties were acquired by Adolph Kocher, a German Missionary as per registered documents of 1084 and 1088 M.E.. He constructed a building for his residence and missionary work as a result of which a Brethern Sabha was formed. There was a prayer hall in the building which was used as an orphanage after purchase of the property by Kocher. Kocher was arrested during World War No. 1 as he was a German citizen. He however, had gifted the property to Stewards Company Limited, England, which right was transferred to the plaintiff-Association in 1973 by a registered document. One Mr. Adams was staying in this property and was continuing the missionary work and administration of the orphanage. During 1976, Adams left for Australia for the treatment of his wife. The orphanage was described as a trust and the subject matter of the trust was only furniture and livestocks. The orphanage or its Superintendents have no right over the property. The first defendant was a member of the Brethern Mission. He volunteered to supervise the orphanage as a Member of the Mission as desired by Adams. When Adams came back to Irinjalakuda in 1978, he found various irregularities. He tried to rectify the same but had to go back to Australia. Though he had written to the inmates of the orphanage to treat the first defendant as a Superintendent, there was no transfer of right to the first defendant. The first defendant, however, on the strength of the letter written by Adams on 29.12.1978 tried to make the property as his own, thus constraining the plaintiff to file a suit for injunction (O.S.No.173 of 1984, originally numbered as OS 648/1982) which was pending. In the present suit, (OS No. 176 of 1983), however, as mentioned above, the prayer was for recovery of possession on the strength of title with a prayer for damages. The suit was contested on various grounds as would be reflected from the issues framed by the trial court. The two suits, it appears were consolidated and disposed of by a common judgment. The suit with regard to recovery of possession and realisation of mesne profits was decreed and the defendants were directed to surrender the suit property to the plaintiffs. However, the right of the defendants to manage the affairs of the orphanages till they are legally removed from the office was also recognised. The suit pertaining to injunction, bearing No. 173 of 1984 was also decreed and the defendants were restrained from obstructing the plaintiff from managing the orphanage until he was removed from office. Constrained, the defendant arrayed in the original lis, filed an appeal which came up for final disposal before the learned Single Judge on 23rd October, 2003 and by a detailed judgment, the same was dismissed. Still dissatisfied, the defendants filed the appeal, A.F.A. No. 1 of 2006.
2. The facts of the appeal (A.F.A. No. 86 of 2002) filed by M/s. Sundaram Finance Limited, 21, Patullos Road, Madras, reveal that it had filed O.S.No.148 of 1988 before the Sub Court, Kollam on 26.5.1988 for recovering an amount of Rs. 40,138/- with interest due under a hire purchase agreement. The defendant therein had entered into a hire purchase agreement with the plaintiff for purchase of a lorry and the plaintiff had financed the defendant a total amount of Rs. 1,47,400/-, on the security of the lorry under the hire purchase agreement. The defendant failed to pay the instalment amounts from 20.5.1984 and the plaintiff took custody of the vehicle and it was sold for an amount of Rs. 85,000/-. After adjusting the amount repaid by the defendant as also the price recovered by the sale of the lorry, according to the plaintiff, an amount of Rs. 40,138/- was due which was sought to be recovered by filing the money suit as mentioned above. The suit was resisted on various grounds which include the plea of limitation. The trial court dismissed the suit on the ground of limitation. The plaintiff filed appeal, A.S.No.388 of 1992 before this Court against the dismissal of the suit, which also ended in dismissal vide order dated 10.4.2002 passed by the learned Single Judge, upholding the view taken by the trial court. Aggrieved by the judgment of the learned Single Judge, the plaintiff/appellant has filed A.F. A.No.86 of 2002. Even though numbered as Appeal against First Appeal as per the established practice and Rules of this Court, the appeals are in fact Second Appeals, the first appeal having been dismissed by the learned Single Judge of this Court. It is the conceded position that the appeals have been filed under Section 5(ii) of the Kerala High Court Act, even though the provision of the Act under which the appeals were filed have not been mentioned in the memorandum of appeals.
3. Learned Counsel representing the defendant-respondent, when the matter came up before the Division Bench raised a plea that in view of Section 100A of the Code of Civil Procedure substituted with effect from 1.7.2002, the appeal against the judgment of the single Judge would not be maintainable. In support of the above plea, he relied upon the Full Bench decision of this Court in Kesava Piliai v. State of Kerala . Per contra, learned Counsel representing the plaintiffs on the basis of the decision recorded by the Constitution Bench of the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry urged that the right of appeal is a vested and a substantive right and the same accrues to the litigant and exists as on and from the date the lis commences and although it is actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails at the date of its decision or at the date of filing of the appeal. The learned Division Bench even though noted that such a contention was raised before the Full Bench in Kesava Piliai v. State of Kerala (supra), was however of the view that the contention raised by the counsel representing the appellant would have substance, even though, prima facie. By so observing, the matter was referred to be decided by a Full Bench. The operative part of the reference order dated 16th February, 2006 reads as follows:
It does not appear that Constitution Bench decision of the Apex Court was brought to the notice of the Full Bench as obviously no reference was made thereto. In the light of the decision of the Constitution Bench of the Supreme Court cited supra, it is contended that the decision of the Full Bench requires reconsideration. Prima facie, there is force in this contention. We accordingly refer it to be considered by a Full Bench. Place the matter before the Hon'ble the Chief Justice for necessary orders". It is in the wake of circumstances as enumerated above, that the matter is before us, so as to examine the correctness of the decision of the Full Bench of this Court in Kesava Pillai v. State of Kerala (supra). Surely, if we were to find in tune with the observation made by the Division Bench that prima facie, the decision of the Full Bench of this Court mentioned above may not be laying down the correct law, we would have referred the matter to be heard by a Bench larger than three Judges, but, since for reasons to be recorded hereinafter, we find that the decision of the Full Bench is correct and needs no change whatsoever, we proceed to answer the reference. Before however, we may do that, it would be appropriate to mention that the only reason on which the decision of the Full Bench has been doubted and the contention of the appellants noted above has been found to be prima facie correct is based upon the decision of the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry, (supra) and therefore, it would be appropriate to first note the law laid down by the Supreme Court in the aforesaid decision.
4. The brief facts of the case aforesaid would reveal that the suit was instituted on April 22, 1948. The trial court passed the judgment dismissing the suit on November 14, 1950 against which the plaintiff filed an appeal. The appeal had to be filed in Andhra Pradesh High Court as by that time the area in question was included in the State of Andhra Pradesh. The appeal was earlier filed in the Madras High Court but, in view of the new High Court having been constituted for the State of Andhra Pradesh and the area coming under the jurisdiction of Andhra Pradesh, it was transferred to the said High Court. On March 4, 1955, the High Court of Andhra Pradesh accepted the appeal, reversed the decree of the trial court and decreed the suit. The application for leave to appeal to the Supreme Court filed before the High Court was dismissed on the ground that the value of the property was only Rs. 11,400/- and did not come up to the amount of Rs. 20,000/-. In the application for special leave to appeal, it was urged before the Supreme Court that the judgment being one of reversal and the value being above Rs. 10,000/-, the applicant was entitled as a matter of right to come up to the Supreme Court on appeal, and as this right had been denied to him by the High Court, the Supreme Court in exercise of its discretion, should grant him the relief under Article 136 of the Constitution of India.
5. The Constitution by Article 395 repealed the Government of India Act and thereby abolished the Federal Court. It, however, continued the abolition of the Privy Council Jurisdiction Act, 1949 which directed that the Federal Court in addition to the powers conferred on it by the Federal Court (Enlargement of Jurisdiction) Act, 1947 would have all the appellate powers exercised by the Privy Council. Though the Act of 1947 aforesaid, being an Act amending or supplementing the Government of India Act, 1935 was repealed, yet notwithstanding such repeal, the provisions of the Act continued in force under Article 372(1) of the Constitution subject to other provisions of the Constitution. The Adoption of Laws Order 1950 modified Sections 109 and 110 of the Code of Civil Procedure inter alia by raising the valuation from Rs. 10,000/- to Rs. 20,000/-, but that provision did not by virtue of Clause 20 of the Order affect any right, privilege, obligation or liability already secured, accrued, or incurred under any existing law. The Supreme Court on the facts mentioned above held that, The true implication of the above provisions is that the pre-existing right of appeal to the Federal Court continues to exist and the old law which created that right also continues to exist to support the continuation of that right and the Federal Court having been abolished, the Supreme Court is substituted for the Federal Court as the machinery for the purpose of giving effect to the exercise of that right of appeal. As the old law continue to exist for the purpose of supporting the pre-existing right of appeal, the old law must govern the exercise and enforcement of that right of appeal.
The Supreme Court further held that, The legal pursuit of a remedy suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedingsThe right of appeal is not a mere matter of procedure but is a substantive rightThe institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit..The right of appeal is a vested right and such a right to enter the superior court accrue to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
The facts of the case would reveal that the leave to appeal which was earlier competent before the Federal Court could now be filed only before the Supreme Court and further that whereas earlier leave to appeal could be filed if valuation was Rs. 10,000/-, now it could be filed only if the same was Rs. 20,000/-. In the facts mentioned above, the Supreme Court held that right of appeal is not a mere matter of procedure but a substantive right and the right to appeal would be a vested right and would accrue to the litigant if it was available when the suit was filed. It is pertinent to mention that the Honourable Supreme Court was not dealing with any statute which might have specifically or by necessary intendment taken away a right of appeal which was available at the time of institution of the suit. As mentioned above, it was only a case where the forum of filing appeal had changed from Federal Court to Supreme Court as also that the valuation of the suit enabling the party to seek leave to file appeal was enhanced from Rs. 10,000/- to Rs. 20,000/-. Even though the Supreme Court was not dealing with any statute scuttling or limiting the right to appeal prospectively or retrospectively, specifically or by necessary intendment, yet it was observed that a vested right to appeal which may be available at the time of filing of the suit can be taken away by subsequent enactment if it may so provide expressly or by necessary intendment. The pertinent observations made by the Supreme Court in that regard read as follows:
Where the suit was instituted on April 22, 1949, the right to appeal vested in the parties thereto at that date and is to be governed by the law as it prevailed on that date, that is to say, on that date the parties acquired the right, if unsuccessful, to go up in appeal from the sub-court to the High Court and from the High Court to the Federal Court under the Federal Court (Enlargement of Jurisdiction) Act, 1947 read with Clause 39 of the Letters Patent (Mad) and Sections 109 and 110 of the Code of Civil Procedure provided the conditions thereof were satisfied, unless that right had been taken away expressly or by necessary intendment by any subsequent enactment.
6. Section 100-A of CPC, was introduced in the Code of Civil Procedure by Section 38 of the Code of Civil Procedure (Amendment) Act, 1976 which came into force with effect from 1.2.1977. The same reads as follows:
100-A. No further appeal in certain cases.-- Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal.
Section 100-A mentioned above was substituted by Section 10 of the Code of Civil Procedure (Amendment) Act, 1999, which came into force with effect from 1.7.2002. It reads thus:
100-A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of High Court, no further appeal shall lie from the judgment and decree of such Single Judge The dictum laid down by the Full Bench of this Court in Kesava Pillai v. State of Kerala (supra), the correctness whereof has been doubted by the Division Bench held thus:
The intention of the legislature is to abolish an intra-Court appeal to the Bench of two Judges of the very same High Court from a decision rendered by a Single Judge. Since a litigant who files an appeal against the decree and judgment of the Civil Court is denied the opportunity of filing a further appeal, we are of the view that no prejudice will be caused to a litigant who files an appeal under a special statute also by taking the right of intra Court appeal to a Bench of two Judges. The provisions contained in Section 100A of theCode of Civil Procedure will prevail over the provisions contained in Section 5(ii) of the Kerala High Court Act regarding a further appeal to a Bench of two Judges from the decision of a Single Judge. We have already found that a decision rendered by Single Judge is to be treated as a decree, judgment or order passed by the Single Judge under Section 3( 13)(b) of the Kerala High Court Act and not as one rendered under the Land Acquisition Act or Motor Vehicles Act. We do not find any justification in limiting the applicability to Section 100A to appeals filed underthe provisions of the Code of Civil Procedure alone. The statute only provides for one appeal to the High Court. A Second Appeal was possible only in view of the provision contained in Section 5(ii) of the High Court Act. That right was taken away by the Amendment Act 22 of 2002 (Emphasis suppl ied). Since such an appeal was possible only in view of the provision contained in Section 5(ii) of the High Court Act, we are of the view that the amendment of Section 100A of the Code of Civil Procedure, no litigant can have a substantive right for a further appeal after 1.7.2002 on the ground that the proceedings from which that appeal arises was initiated prior to 1.7.2002. No further appeal under Section 5(ii) of the Kerala High Court Act is maintainable from the judgment, decree or order passed by a Single Judge under Section 3(13)(b) of the High Court Act after 1.7.2002 in view of the amended Section 100A of the Code of Civil Procedure inserted by Act 22 of 2002.
The observations of the Full Bench as reproduced above thus clearly manifest that the right earlier available to a party to file appeal Under Section 5(ii) of the Kerala High Court Act has been taken away by the Amendment Act 22 of 2002. It is not even disputed before us that the provisions contained in Section 100-A of CPC specifically take away the right of appeal and that being so, the law laid down by the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry (supra) that a right of appeal is a substantive right and accrues to a party if it was available at the time of filing of suit would not lead to doubting the correctness of the Full Bench in Kesava Pillai v. State of Kerala (supra) as surely, the Supreme Court itself has held that such a right can be taken away specifically or by necessary intendment. The appeal is a creation of statute and it is further not denied that if the statute can provide an appeal, it can take away as well. In the light of the discussion made above, there arises no occasion to further discuss the matter, as it is only in view of the judgment of the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry (supra), the Full Bench decision in Kesava Pillai v. State of Kerala (supra), has been doubted. As mentioned above, the provisions contained in Section 100-A, C.P.C., do specifically take away the right of appeal available to a party be it under Section 5(ii) of the Kerala High Court Act or under any Letter Patent Act of the High Court. We would have perhaps not made further discussion on the subject, but inasmuch as in the interregnum the other judicial precedents specifically taking into consideration the decision of the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry (supra), have come into being, it would be appropriate to make a reference thereof.
7. The precise question with regard to maintainability of an appeal Under Section 5(ii) of the Kerala High Court Act after the insertion of Section 100-A of C.P.C. with effect from 1.7.2002 came to be discussed by the Full Bench of Punjab and Haryana High Court in Parshotam Dass and Ors. v. State of Haryana and Ors. . The only difference in the Full Bench decision of this Court and that of the Full Bench of the Punjab and Haryana High Court is that whereas an appeal against a judgment and decree in an appeal arising from appellate decree of Single Judge is competent before a Division Bench Under Section 5(ii) of the Kerala High Court Act in Kerala, such an appeal is available in Punjab by virtue of Clause X of the Letters Patent Appeal. The Full Bench of the Punjab and Haryana High Court specifically dealt with the argument based upon the judgment of the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry (supra). The contention raised by the learned Counsel in the said case before the Full Bench reads as follows:
Therefore, a right has come to be vested in the appellants. He further submitted that a vested right cannot be deemed to be taken away by the amendments made by 1999 Act and 2002 Act unless the legislature itself has provided for it Learned Counsel also relies upon the judgment of the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry (supra) and drawn our attention to the 5th principle laid down by the Constitution Bench holding that the vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
The learned Full Bench of the Punjab and Haryana High Court threadbare discussed the matter. The Bench framed the following two questions to be answered by it:
(1) Whether Letters Patent Appeal would lie against the judgment and decree passed by the learned single Judge in an appeal arising from an original or appellate decree or order?
(2) Whether the Letters Patent Appeals filed before 1-7-2002 are 1iable to be dealt with and decided in accordance with amended Section 100-A of the C.P.C.?
On elaborate discussion of the entire case laws including the judgment of the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry (supra), the Full Bench answered the questions framed by it as follows:
In view of the above discussion, our answer to question No. 1 is in the negative and it is held that no Letters Patent Appeal would lie against the judgment and decree passed by the learned single Judge arising from an original, appellate decree or an order. Our answer to the second question is that Letters Patent Appeals filed before 1.7.2002 would not be dealt with and decided by applying the provisions of Section 100-A of 2002 Act.
The second question as answered by the Full Bench was on the basis of the judgment of the Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry (supra), and other judgments referred to in the decision.
8. A Division Bench of the Punjab and Haryana High Court doubted the decision of the Full Bench in Parshotam Dass and Ors. v. State of Haryana and Ors. , on the basis of the judgment of the Supreme Court in Subal Paul v. Malina Paul and Anr. 2003(2) Recent Civil Reports (Civil) 234. The order of reference made by the Division Bench reads as follows:
Relying upon a three Judges Division Bench judgment dated February 13, 2003 of the Hon'ble Supreme Court in Subal Paul v. Malina Paul and Anr. 2003 (2) Recent Civil Reports (Civil) 234, Shri. H.S. Dhandi, learned Counsel submitted that this Letters Patent Appeal preferred against the judgment dated 1st May, 2003 in First Appeal from Order No. 78-M of 1994 is maintainable and that the three Judges Full Bench judgment dated April 10,2003 of this Court in Letters Patent Appeal No. 1246 of 1991 (Parshotam Dass and Ors. v. State of Haryana and Ors.) requires reconsideration.
2. In the said view of the matter, the question of maintainability of this Letters Patent Appeal requires consideration by a Larger Bench. We refer accordingly.
A Full Bench of five Judges was constituted, but during the pendency thereof, the Honourable Chief Justice constituted a Bench of seven Judges. The matter before the seven Judges Bench came up for hearing on December 1,2004, by which time a later decision of the Supreme Court in P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank Ltd. and Ors. , had come into being. This was a judgment by a Constitution Bench consisting of five Honourable Judges. If there was any doubt regarding the correctness of the decision of the Full Bench in Parshotam Dass and Ors. v. State of Haryana and Ors. (supra) in view of the decision of the Supreme Court in Subal Paul v. Malina Paul (supra), the same was set at rest by the later decision of Supreme Court in P.S. Sathappan (Dead) by LRs. v. Andhra Bank Ltd. and Ors. (supra). It was conceded at all ends that the doubt that cropped in view of Subal Paul's case (supra), in view of the judgment aforesaid, stands at rest.
9. The matter in P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank Ltd. and Ors. (supra), was referred to the Constitution Bench in view of the conflicting views of the Supreme Court on the subject. One of the questions that came to be debated was as to whether a clause in Letters Patent providing an appeal would override the bar created under Section 104 of the Code. Whereas, while supporting that an appeal was competent, the contention raised was that despite the provisions contained in Section 100-A of C.P.C., when an appeal has been provided under Section 104(1) of the Code of Civil Procedure, as provided in the body of the Code or any law for the time being in force, the appeal having been provided under the Letters Patent would be competent as having been provided by law i.e. Letters Patent Act. Per Contra, it was urged before the Supreme Court that the provisions contained in Letters Patent providing for an appeal cannot over ride the bar created by Section 104(2) of the Code and that Section 104(1) must be read with Section 104(2) of the Code and by reason thereof, the saving clause in relation to Letters Patent would not be attracted. The majority view was by Honourable Justice Section N.Variava, (as His Lordship then was), whereas the minority judgment was rendered by Honourable Justice Section B.Sinha. In the minority judgment, it was held that, Clause 15 of the Letters Patent cannot override the bar created under Section 104 of the Code, Section 104(1) must be read with Sub-section (2) of Section 104 and by reason thereof, the saving clause in relation to Letters Patent would not be attracted. An attempt should be made to uphold a right of appeal only on harmonious constructions of Sections 4, 104 and other provisions of the Code. It is pertinent to mention that in the majority judgment on the question as mentioned above, it was held that an appeal under the Letters Patent would not be competent after Section 100-A came to be substituted with effect from 1.7.2002. The relevant observation of the Honourable Supreme Court made in the majority judgment which came into being immediately after reproducing Section 100-A of C.P.C., as substituted with effect from 1.7.2002, reads as follows:
To be noted that here again the legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100-A, no letters patent appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time, neither Section 100-A nor Section 104(2) barred a letters patent appeal.
The facts of the case aforesaid would reveal that a suit filed by the plaintiff was decreed on 15.4.1976. The execution petition was filed by the decree holder for executing the decree. In the execution proceedings for realisation of decretal amount, the property belonging to the judgment debtor was put to auction. The validity of the said auction sale came to be questioned by the judgment debtor by filing an execution application on 8.10.1979 praying therein to set aside the court auction sale held on 26.9.1979. The application was dismissed by the execution court on 10.10.1985, against which an appeal was preferred by the judgment debtor, which was also dismissed by a learned Single Judge of the Madras High Court on 8.10.1990. The Letters Patent Appeal there against purported in terms of Clause 15 of the Letters Patent of Madras High Court was filed by the judgment debtor which was dismissed by the Full Bench of the Madras High Court by judgment dated 22.8.1998, holding that in terms of Sub-section (2) of Section 104 of the Code of Civil Procedure, an appeal preferred against an order passed by an appellate court under 0.43, Rule 1 read with Section 104 of the Code was not maintainable. This order of the Full Bench was set aside by the majority judgment in P.S. Sathappan (Dead) by LRs. v. Andhra Bank Ltd. and Ors. (supra), whereas it was upheld by the minority judgment. We may still mention here that in the majority judgment, it has been mentioned that the Letters Patent Appeal would be competent as it came to be filed before the substitution of Section 100-A of C.P.C., as on 1.7.2002. It is further pertinent to mention here that while holding as mentioned above, the judgment of the Supreme Court in Garikapati Veeraya v. N. Subbiah Choudhry (supra), was taken into consideration. There is no scope, whatsoever, for reconsideration of the Full Bench decision of this Court in Kesava Pillai v. State of Kerala (supra), as the same is in consonance with the later decision of the Supreme Court in R.S. Sathappan (Dead) by LRs. v. Andhra Bank Ltd. and Ors. (supra).
10. In all fairness, we may mention that learned Counsel appearing for the appellants have placed reliance upon the Division Bench judgment of Jharkhand High Court in Ganesh Singh v. Bishram Singh (2003) 11 I.L.D. 19 (Jharkhand) and also the decision of Division Bench of Orissa High Court in Special Land Acquisition Officer v. Tankadhar Manabhoi (2003) 7 ILD 47 (Orissa). There cannot be any dispute to the proposition of law that substitution of Section 100-A in Code of Civil Procedure, with effect from 1.7.2002 would not affect the right of appeal under Clause 10 of the Letters Patent, if the appeal is filed prior to the said date. However, it is not possible to hold, in view of the authoritative decision of the Constitution Bench of the Supreme Court in P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank Ltd. and Ors. (supra), that Section 100-A inserted by the amendment to the Code of Civil Procedure with effect from 1.7.2002 would not affect the right of appeal under Clause 10 of the Letters Patent for suits filed prior to 1.7.2002. The Division Bench of Jharkhand High Court decided the matter on July 29,2003; whereas the Division Bench of the Orissa High Court decided the matter on March 7, 2003. The Honourable Supreme Court decided the matter on October 7, 2004, a date later than the two decisions of the High Courts as mentioned above. Surely, the law laid down by the Supreme Court being not available could not be noticed.
11. The learned Counsel for the appellant also relied upon the decisions of the Supreme Court in Bento De Souza Egipsy (Dead by LRs. v. Yvette Alvares Colaco and Ors. (2004) 13 SCC 438, and Sanjay Z. Rane and Ors. v. Saibai Section Dubaxi (Dead) through LRs. (2004) 13 SCC 439. The Division Bench of the High Court in Bento De Souza Eaipsy (Dead) by L.Rs. v. Yvette Alvares Colaco and Ors., had taken the view that Section 100-A of C.P.C., introduced with effect from 1.7.2002 is retrospective in effect and would be applicable to appeals filed before 1.7.2002 as well. This view was set aside by the Supreme Court. To the same effect is the judgment of the Supreme Court in Sanjay Z.Rane and Ors. v. Saibai Section Dubaxi (Dead) through LRs. (supra). There is no dispute with regard to the proposition of law and we too have held that Section 100-A, as inserted on 1.7.2002, is not retrospective, and therefore, all appeals filed prior to the said date are competent.
12. In view of the discussions made above, we hold that the Full Bench decision of this Court in Kesava Pillai v. State of Kerala (supra) lays down the correct law and there is no occasion to differ with the same. We, thus, answer the reference holding that Section 100-A of Code of Civil Procedure bars an appeal to a Division Bench provided Under Section 5(ii) of the Kerala High Court Act against a judgment of single Judge in the exercise of the appellate jurisdiction in respect of a decree or order made in the exercise of the original jurisdiction by a subordinate court and that such appeals filed after 1.7.2002 are not maintainable.
13. Normally, we would have remitted the matter to the Division Bench for disposing of the appeal in accordance with law, but inasmuch as we have held that the appeals are not maintainable, it will be an exercise in futility. In view of the discussions made above, we hold that the appeals are not maintainable and are accordingly dismissed. The costs are made easy.