Patna High Court
Krishna Chandra Deb vs Rajendra Narayan Bhanj Deo And Anr. on 5 May, 1936
Equivalent citations: 164IND. CAS.287, AIR 1936 PATNA 465
JUDGMENT Wort, Ag. C.J. 1. This is an application for leave to appeal to His Majesty in Council from an order made by this Court on January 7, 1936, in an application in revision against the order of the Subordinate Judge of Cuttack made on January 10, 1934. It is unnecessary to state elaborately the facts of the case; it is sufficient to say that the respondent (the Raja of Kanika) in this application 1931, that is during the pendency of a suit brought by the petitioner on March 29, 1930, in which suit a decree was pronounced in his favour in December 1933. 2. Now there appears to have been an application for execution, that is to say for delivery of possession to the petitioner and this was anticipated by an application by the respondent under Order XXI, Rule 100, Civil Procedure Code. This application, however, it appears was dismissed but on what grounds it is immaterial to state; the fact is that the petitioner had no notice of the application. A subsequent application was made by the respondent, the Raja, after an application had been made and a writ of delivery of possession issued to the petitioner. The learned Subordinate Judge dealt with the matter under Order XXI. He expressed himself in these terms: I think the case should he decided according to the principles laid down in Rule 99 or Rule 101 of Order XXI, Civil Procedure Code, although the present miscellaneous case does not strictly fall under either of these rules. 3. I understand him to have meant by those words that the case did not strictly come under Order XXI, Rule 100, by reason of the fact that possession had not actually been delivered to the petitioner: at any rate that is the meaning attached to it by the parties to this application. Now the learned Judge disposed of the application of the respondent in the respondent's favour, hence the application to this Court in revision. Saunders, J., who delivered the judgment of this Court made this statement: It is argued that the Raja ought to have waited until an attempt was made to deliver possession to the petitioner and then to have resisted the delivery of possession, leaving it to the petitioner to make an application under Order XXI, Rule 97. The Court, however, merely anticipated a situation which would afterwards arise on the application that presumably would be made by the petitioner under Rule 97. 4. The learned Judge then stated that there was no ground for interference by way of revision unless the order was without jurisdiction or it was the case of a failure of justice. The learned Judge in his judgment, in which the learned Chief Justice concurred, came to the conclusion that there was no cause of any failure of justice, and as I understand the judgment, he came also to the conclusion that the learned Subordinate Judge did not act without jurisdiction. 5. Now the application to this Court is made under Section 109, Civil Procedure Code, and it is suggested that it comes either under Sub-clause (a), Section 109 or Sub-clause (c). Dealing with the latter clause first, I am quite clearly of the opinion that it is not a case in which we should give a certificate of fitness to appeal to His Majesty in Council under Clause (c), that is to say the most that can be said with regard to the order of the learned Subordinate Judge is that he did in fact anticipate a state of affairs which would have obtained had the writ of delivery of possession been given effect to on behalf of the petitioner. Strictly as the learned Subordinate Judge points out, the, matter did not come under Order XXI, Rule 100, Civil Procedure Code, but that in my judgment, would not entitle us to hold that the case was of such importance that we would give leave to appeal under Clause (c), Section 109. But it remains to be considered whether the order of this Court is a final order passed on appeal by the High Court under Clause (a). Mr. P. R. Das, appearing on behalf of the petitioner, has relied upon a decision of the Calcutta High Court in Srinivasa Prasad Singh v. Kesho Prasad Singh 13 CLJ 681 : 10 Ind Cas. 444. There Mookerjee, J. discussed the question of whether the order there being considered was a final order. As I have already indicated two questions arise: first whether it was a final order and secondly whether it was order passed on appeal. Mookerjee, J. in the course of his judgment appears to take this view that the question is to be determined upon a consideration of the question of whether the order was made in the appellate jurisdiction of the Court. Before dealing with that matter, reference should be made to a decision of their Lordships of the Judicial Committee of the Privy Council in Ramchand v. Goverdhan 47 IA 124 : 56 Ind. Cas. 302 : 24 CWN 721 : 18 ALJ 591 : 22 Bom.LR 606 : 39 MLJ 27 : 12 LW 15 : 2 UPLR (PC) 94 : (1920) MWN 407 : 28 MLT 87 : 47 C 918 : 14 SLR 191 (PC). Their Lordships in that case were considering the question of what was a final order, and Lord Cave, who delivered the opinion of their Lordships of the Judicial Committee of the Privy Council expressed himself in these terms: The question as to what is a final order was considered by the Court of Appeal in Salaman v. Warner (1891) 1 QB 734 : 60 LJQB 621: 39 WR 547, Bozson v. Altrincham Urban District Council (1903) 1KB 547 : 72 LJKB 271 and Isaacs & Sonsv. Salbstein (1916) 2 KB 139 : 85 LJKB 1433 : 114 LT 924. The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties. 6. Mr. Das in this case contends that this order would in effect give delivery of possession to the respondent and thus finally dispose of the rights of the parties. But assuming that to be so for the moment, we have, as I have already stated, to consider the question of whether this order was passed on appeal. I come back to the judgment of Mookerjee, J., in the case reported in Sirinivasa Prasad v. Singh Kesho Prasad Singh 13 CLJ 681 : 10 Ind Cas. 444. There the learned Judge, as I have already stated, appears to have decided the question on the footing of whether the order was made in the appellate jurisdiction of the Court or on its original side, having stated that Letters Patent nowhere spoke of any revisional jurisdiction in contradistinction to appellate jurisdiction. But with great respect to that very distinguished Judge, it seems to me that the lest which the learned Judge was there applying is not a final test in the matter. An order may be made on the appellate side of the Court without its being a final order passed on appeal. In this connection I propose to refer to a decision of the Bombay High Court in Karsondas Dharamsay v. Gangabai 32 B 108 : 9 Bom. LR 566. There the matter under consideration was an application to admit an appeal after the period of limitation prescribed by the Limitation Act; and it was there decided that an order made on such an application was not an order or decree passed on appeal. Sir Lawrence Jenkins, C.J. in the course of his judgment made this observation: The meaning of the expression 'passed on appeal has been settled by a line of authorities, which it is right that we should follow: see Sunder Kuer v. Chandreshwar Prasad Singh 30 C 679 and the cases there cited. And applying that interpretation to the circumstances of this case, it cannot (in my opinion) be said that there is here a decree passed on appeal by a High Court. 7. The case to which Sir Lawrence Jenkins referred is the case reported in. Sunder-Koer v. Chandreshwar Prasad Singh 30 C 679, Now reference was made to the case in Rajah Enaet Hussain v. Ranee Rooshun Jahan 10 WR 1 : 1 BLR 1 (FB). This case was referred by Jackson, J., to a Full Bench and the reference was made in these words: It was held that an order made by the High Court on an application to review its judgment in a case of appeal to the Privy Council previously heard is not an order made on appeal within the terms of Clause 39 of the Court's Charter, so as to enable the Court to admit an appeal against such order to Her Majesty in Council. 8. In that case Sir Barnes Peacock, C.J., drew attention to the language used in the Charter ''which is practically identical with that in Section 595 of the Code" and to the difference between words "made or passed on appeal" and ''made in exercise of its appellate jurisdiction." In Section 595 of the Code the language used is "passed on appeal" and not "passed in the exercise of its appellate jurisdiction." In my judgment there is a vast difference between an order made or a judgment passed on the appellate side of a Court and the final order passed on appeal. The latter may be included in the former but the former is necessarily not the same as the latter. Mr. Das in this connection has referred to a decision of the Calcutta High Court in Shew Prasad Bhungshidhur v. RamChunder Haribux 41 C 323 : 23 Ind. Cas. 977 : AIR 1914 Cal. 388. The matter there before the learned Judges was whether the order which was under discussion was a judgment within the meaning of Clause 15, Letters Patent. They decided it was, but in the course of the judgment reference was made to a matter which is under discussion in this case and there the learned Judge stated that it had been decided in the Calcutta High Court that an appeal lay from an order made under Section 115, Civil Procedure Code. With very great respect to most distinguished Judge the point that there was not necessary for the decision but perhaps the value of it is nonetheless having regard to the fact that the learned Judge there stated that it had been decided in the Calcutta High Court that an order under Section 115 of the Code was appealable to His Majesty in Council. There is one decision, however, a decision of the Allahabad High Court in Suraj Singh v. Phul Kumari 48 A 226 : 90 Ind. Cas. 904 : AIR 1926 All. 202 : 23 ALJ 997, which is directly in point in this matter. There the effect of the Judgment of the learned Judges was that an order passed in revision is entirely distinct in its nature from an order passed on appeal and does not come within the purview of Section 109, Civil Procedure Code. The learned Judges in deciding that case made this observation: We are not prepared to take the view that an order passed by this Court in the exercise of its re-visional jurisdiction is an order passed 'on appeal.' There is a substantial difference between the powers of this Court when exercised in appeal and when exercised in revisional jurisdiction. As was properly pointed out, the jurisdiction of this Court is not bound to interfere even if it is satisfied that an error of law has been committed by the Court below. 9. In this connection I would make reference to Section 115 itself. In my opinion with great respect to the decision upon which reliance is placed, I hold the view that Section 115 is conclusive of the matter and that an order made under this section can be made only when there is no appeal and it necessarily implies that an order made under the section is not an order made on appeal. Section 115 in my judgment quite clearly distinguishes between an order made under the revisional powers of the Court and an order made on appeal. It is true, as I have already stated and repeat that an order made under Section 115, Civil Procedure Code, may well be an order made on the appellate side of the Court but it by no means follows that it is an order on appeal. In my judgment that it is not. 1 come clearly to the conclusion that although it may be a final order, it was not a final order passed on appeal and therefore we have no jurisdiction to give leave to appeal to His Majesty in Council under Section 102 (a). For the reasons which I have already stated, I think also it is not a lit case for appeal to His Majesty in Council. Saunders, J., in delivering the judgment of this Court referred to the fact that there was right of action in the plaintiff under Section 103, Civil Procedure Code, although I do not hold that that finally decided the matter or that it is a matter which ought to be taken into consideration in coming to a conclusion in the case. For the reasons I have given this case should be rejected. The application for leave to appeal is dismissed with costs; hearing fee ten mohurs. Dhavle, J.
10. I agree. The course of decision in Calcutta is by no means uniform and it is impossible to distinguish the case before us from that of Suraj Singh V. Phul Kumari 48 A 226 : 90 Ind. Cas. 904 : AIR 1926 All. 202 : 23 ALJ 997. My Lord the Chief Justice has pointed out a further reason for holding that the order under consideration was not an order passed on appeal within the meaning of Clause (a), Section 109, Civil Procedure Code, in that the revisional jurisdiction of this Court is only invoiced, as Section 115 of the Code expressly provides, in cases where no appeal lies to this Court. As regards Clause (c), Section 109, it is clear that cue case does not raise any question of great private importance to which i. is impossible to give a money value. The contest between the parties seems ultimately to have reduced to the question whether the applicant is to get the better of the other side by reason of the tactical move he adopted in dropping the mortgagee and the objector from his suit.