C.V. Venugopal Mudali vs C. Venkatasubbiah Chetty and Others

Sadasiva Ayyar, J.—The second defendant is the appellant. The suit was brought on the original aide of the High Court for the establishment

of the plaintiff''s right to attach the plaint properties in execution of the decree which the plaintiff had obtained against the first defendant in Original

Suit No. 13 of 1905. The second defendant put in a claim petition when the properties were attached by the plaintiff in execution of that decree on

the allegation that the properties did not belong to the first defendant (the judgment-debtor) but to his wife (the third defendant) and that the second

defendant had a mortgage right over the properties, the mortgage having been created by the third defendant in favour of the second defendant''s

transferor. His (second defendant''s) claim petition was allowed in August 1909 by a single Judge of this Court sitting on the original side. The

plaintiff (the decree-holder) appealed against that order and that order was confirmed by a Division Bench of this Court on the 21st December

1910. Thereupon the plaintiff brought this suit on the 16th December 1911 just within one year of the order of the Appellate Court but more than

one year after the date of the order passed by the single Judge.

The second defendant raised a preliminary contention that the suit was barred by limitation under Article 11 of the second schedule of the

Limitation Act. His contentions were

(a) The order of the Division Bench dated December 1910 dismissing the appeal from the order dated August 1909 passed on the claim petition

was passed without jurisdiction as no appeal lay against the latter order.

(b) Even if such an appeal lay the one year''s period mentioned in the third column of the Article 11 of second schedule of the Limitation Act

commenced in August 1909 (the date of the original order allowing the claim petition) and not from the date of the appellate order (December

1910).

(6-1) As the appellate order did not interfere with the original order it could not be held to have superseded the original order,

(6-2) As even if it superseded the original order the order mentioned in the third column of Article 11 means the original order the legislature not

having in Article 11 used the words "" final decision or order ""(as the legislature did in Article 13) and not having expressly postponed the

commencement of the limitation period to the date of the final order [as it did in Clause (2) of Article 182],

On this preliminary question of limitation Mr. Justice Bakewell decided against the second defendant for the following reasons:--(1) that the

Division Bench who decided the appeal in the claim petition case had jurisdiction to entertain and decide the appeal on the authority of Sabhapathi

Chetty v. Narayanasami Chetti ILR (1902) Mad. 555, (2) that Article 11 of the Limitation Act does not apply to the suit as it was not a suit to

establish any right denied to the plaintiff by the original order on the claim petition but it was a suit to set aside the appellate order passed in the

Letters Patent Appeal and hence the Article 13 of the Limitation Act was the article applicable.

I might at once say that with very great deference I am unable to agree with the opinion of the learned Judge that the proper article applicable is

not Article 11 of the Limitation Act but Article 13. The proceedings in an appeal against an order passed in a petition case are a continuation of the

proceedings commenced by the petition and hence the appellate order is also an order on the same claim petition and as Article 11, Clause (1),

specifically deals with a suit which is allowed to be brought by the legislature to contest the order on a claim, Article 13 cannot be applied. Their

Lordships of the Privy Council have held that the suit itself so brought is in the nature of a review of the order passed in the claim petition and that it

is a mistake to treat the action brought u/s 283, Civil Procedure Code, as an original action (see Phulkumari v. Ghanshyam Misra ILR (1908)

Calc. 202 and Krishnappa Chetty Vs. Abdul Khader Saheb and Others, .

There remain then for consideration the other contentions which I have referred to as (a) and (b).

As regards contention (a) there can be no doubt that in Sabhapathi Chetti v. Narayanasami Chetti ILR (1902) Mad. 555 it was held by Sir

Arnold White, C.J., and Mr. Justice Bhashyam Ayyangar that an appeal under the Letters Patent lay from the orders of a single Judge of this Court

passed on the original side in a claim petition. It is however urged that though there was a preliminary objection raised by the respondent in that

case that no appeal lay and that contention was overruled that contention was supported only by the argument that Section 590 of the old CPC

prohibited an appeal and that the respondent''s vakil did not put forward the argument in that case that by Section 283 of the Civil Procedure

Code, the order passed on the claim petition by the single Judge was ""conclusive."" Having regard to the eminence of the learned vakils who

appeared for the respondent in that case and to the eminence of the Judges who decided that case, I feel diffident to hold that if the objection

based on Section 283 (present Order XXI, Rule 63) was a stronger objection than the objection put forward u/s 591, the stronger objection

would not have been separately put forward, noticed and dealt with, I take it that as the word ""conclusive"" cannot possibly mean more than ""shall

not be set aside by way of an appeal review or revision,"" the prohibition u/s 283 cannot where an objection is taken to the competency of an

appeal be stronger than the objection taken u/s 591. [As regards the maintainability of a review of such an order, see Cochrane v. Heera Lal Seal

(1867) 7 W.R., 79 and Bhyrub Chunder Surmah Chowdhry v. Madhub Ram Surmah (1873) 20 W.R., 84. As regards revision--see Ittiachan v.

Velappan ILR (1886) Mad. 484 The reasoning by which it was held in Sabhapathi Cketti v. Narayanasami Chetti ILR (1902) Mad. 555, that the

appeal granted by Section 15 of the Letters Patent was not intended to be taken away by Section 591 of the CPC applies also to the contention

that by Section 283 the said right of appeal is taken away. That reasoning is that ""when the legislature has already given its attention to a particular

subject and provided for it, it is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that

intention is manifested in explicit language"" and also that the provisions of the CPC referring to appeals are intended to apply to appeals from one

Court to a higher Court and not from one Judge of the same Court to other Judges of that Court. The longstanding practice also has bean to allow

such appeals under the Letters Patent. I do not think that it is advisable to reopen the question or to scrutinize minutely whether the reasons alleged

in the older decisions supported by such longstanding practice can be entirely sustained [see Ravi Veeraraghavulu v. Venkata Narasimha Naidu

Bahadur ILR (1914) Mad. 443 . I would, therefore, follow Sabhapathi Chetti v. Narayanasami Chetti ILR (1902) Mad. 555 and hold that the

appeal against the order in the claim petition case was decided with jurisdiction by the Division Bench.

Coming to the question of limitation, Mr. Justice Bhasyam Ayyangar, in his judgment in Kristnama Chariar v. Mangammal ILR (1903) Mad. 91,

says that from a judicial point of view ""the mere fact that a matter is litigated both in the Court of First Instance and again though only in part in the

Court of Appeal cannot convert or split the suit into two and there can be only one final deoree in that suit, viz., the decree of the Court of

Appeal."" There cannot be two final decrees in such a suit, one by the Court of First Instance and the other by the Court of Appeal. ""The Court of

Appeal is really seized of the whole suit though the relief given by it will be limited"" and its decree is the only subsisting decree in the suit. In Brij

Narain v. Tejbal Bikram Bahadur ILR (1910) All. 295, their Lordships of the Privy Council have held that a Subordinate Judge had no jurisdiction

to amend his decree u/s 206, Civil Procedure Code, after it had been affirmed by the High Court on appeal. I think that except to the extent to

which the Statute law treats the judgment of the first Court as existing for certain purposes, the Appellate Court''s judgment on general principles of

jurisprudence supersedes the judgment of the first Court even when the appellate judgment is a judgment confirming the lower Court''s decision:

see Asma Bibi v. Ahmad Husain ILR (1908) All. 290 and 294.

Their Lordships of the Privy Council have decided that though the plaint in a suit u/s 283, Civil Procedura Code (Order XXI, Rule 63), is not

described in that section as a suit to set aside the order passed on the claim petition it is in the eye of the law a suit of that character and that it ""is

merely a verbal or formal difference"" to describe it as a suit to establish the right, etc, : see Phulkumari v. Ghanshyam Misra ILR (1908) Calc. 202

and Krishnappa Chetty Vs. Abdul Khader Saheb and Others, . Now it is clear that the present suit is a suit not to set aside the order passed on

the claim petition by the single Judge (which order has merged in the order of the Division Bench on that same claim petition), but it is to set aside

the order of the Division Bench, and hence the one year''s period should be calculated from the date of the latter order which is the only subsisting

order in the claim petition case.

It was however urged that because in two or three other articles of the Limitation Act special provision is made for counting the period from the

date of the appellate order when there has been an appeal and no such special provisions are found in Article 11, therefore the legislature intended

the date of the original order to be the starting point so far as the suits mentioned in Article 11 are concerned even when there has been a Letters

Patent Appeal. It appears to ma that there are at least two answers to this argument. One answer is that the fact that the legislature in order to

remove all doubts and with abundant caution has specially made provision in some cases for the contingency of an appeal, namely, that the order

passed in the appeal was to be the starting point in those cases, that fact is not a sufficient reason for not construing the word ""order"" found in

Article 11 as the only subsisting order passed on the claim petition (where there has been an appeal) in accordance with recognized principles of

jurisprudence. Secondly, there seems to be at least one other article in the Limitation Act in which there is no express reference to the contingency

of an appeal and to the decree passed on such an appeal, but the legislature must have intended that the starting point must be the date of the final

appellate decree (in case there had been an appeal) and not the original decree. I refer to Article 175 which says that an application for payment of

the decree amount by instalments under the CPC should be made within six months from the date of ""the decree."" Such an application is made

under Order XX, Rule 11, Clause (2), and it cannot surely be held that where the Original Court passes a decree for a certain sum of money and

the plaintiff appeals to the Appellate Court on the ground that he ought to have been decreed a larger sum but his appeal is dismissed an

application under that order and rule cannot be made by the judgment-debtor after six months from the date of the original decree but within six

months of the date of appellate decree even though the decree-holder consented to such an order being made.

I need not say that where the order on a review petition as distinguished from an appeal petition merely refuses to interfere with the judgment

or order sought to be reviewed or where an appeal is not entertained at all though filed, the original decree or order is and continues to be the

subsisting and final decree or order. In this respect an order rejecting a review petition stands on a different footing from a decision passed on

appeal confirming the lower Court''s judgment and dismissing the appeal. If the decision on review or revision does interfere with the original

decision, the former decision becomes the only subsisting order and stands on the same footing as the decision passed in a competent appeal. It

will in that case become the starting point for limitation.

In the result, I would dismiss this appeal with costs.

Napier, J.

I concur.