Itty Sankaran vs Ittiyathi Kochukutty and Others

Subramania Iyer, J.—The Petitioner presents this Civil Revision Petition against the judgment of the District Judge of Kottayam dated 13th July 1949 dismissing bis appeal (A.S. 255/1123) made against the order of the District Munsiff of Ettumanoor allowing D.R. P. No. 2/1121 filed by the debtor, 1st Respondent in the appeal and in this revision, u/s 16. Travancore Debt Relief Act, II of 1116, overruling the objections raised by the Petitioner. The appeal was dismissed as not maintainable in law.

One of us on hearing this revision petitlon referred it to a Division Bench ''since the question regarding right of appeal against an order passed u/s 18 of the D.R. Act is an important one not decided so far''. The Division Bench referred the question to a Full Bench by the following order of reference:

An important question of law having a farreaching effect on the rights of parties to proceedings initiated u/s 16, Travancore Debt Relief Act (Act II of 1116) is raised in this case. In opposing the debtor''s petition u/s 16, the second counter-Petitioner who is the revision Petitioner before this Court had contended that all the assets of the debtor have not been included in his petition and that the debts shown in favour of counter-Petitioners 1 and 3 to 6 were bogus and non-existing debts. The first Court overruled these objections and passed an order in favour of the debtor and also upholding the claims of all the creditors. The second counter-Petitioner''s appeal against that order was dismissed by the lower appellate Court on the ground that no such appeal is maintainable. The correctness of this view is challenged by the revision, Petitioner.

There have been several instances where appears against orders passed on petitions u/s 16 of the Debt Relief Act have been entertained by the District Courts as also by the High Court. But that fact will not solve the question now raised. In those instances the competency of the appeals were either not doubted or not raised by any of the parties. Now that the question has been specifically raised it has to be decided by an authoritative ruling. In -''21 Trav LT 506 (A)'', there are certain observations in support of the view taken by the lower Court in this case. But even there, the question has not been fully discussed and no definite ruling has been given.

On behalf of the revision Petitioner it is contended that by Section 18 of the Debt Relief Act, the Insolvency Act is made applicable to the proceedings relating to petitions u/s 16 and that therefore it has to be taken by implication that the right of appeal provided by Section 77, Travancore Insolvency Act is available even in respect of orders passed on such petitions. Section 18 only states that the procedure prescribed in the Insolvency Act shall ''mutatis mutandis'' be applicable to proceedings u/s 16. The question whether this provision is sufficient to take in the right of appeal also as provided in Section 77 of the Insolvency Act, requires careful examination. (Another point raised on behalf of the revision Petitioner is that petitions u/s 16 of the Debt Relief Act are dealt with not by any Special Tribunal but only by the ordinary civil Courts and that such orders have the force of decrees passed by such Courts and therefore the right of appeal conferred by ''Section 96 Code of Civil Procedure. is available in respect of such orders, particularly in view of the fact that there is nothing in the Debt Relief Act to indicate that such right has been taken away). This position is met by the other side by contending that no right of appeal can by implication be presumed to exist and that there can be no right of appeal against orders passed under a special statute unless expressly provided therein. These aspects of the question have also to be fully examined before giving a final decision on the question raised. In view of the importance of the question and also of its far-reaching effect we think that it is very desirable and proper that the question is considered by a Full Bench of this Court and an authoritative ruling given as to whether orders passed on petitions u/s 16, Debt Relief Act, disposing of the claims and other questions arising out of such petitions, are appealable or not. This C.R.P., is accordingly referred to a Full Bench for decision after a definite pronouncement on the above mentioned questions.

Sd/- K. Sankaran, Judge 1-10-1952. ''Sd/- K.S. Govinda Pillai, Judge"

It is necessary to refer to the facts of this case first. The Petitioner as transferee of the decree in Small Cause Suit 872/1108 on the file of the Vaikom Munsiff''s Court executed it and arrested the 1st Respondent judgment-debtor last in the latter part of 1120 for realisation of Rs. 200/- and odd due thereunder. Thereafter on 4th Mithunam 1120 the judgment-debtor filed a petition in Court alleging discharge of the decree and praying that satisfaction may be entered. On the same day he executed a deed of hypothecation in favour of the 1st Respondent in the D.R.P. for Rs. 300/- repayable with 12 per cent. interest. The hypothecatee and the debtor have married sisters.

The plea of discharge raised was found against and the application for recording satisfaction dismissed on 8-2-1121. On 1-3-1121 the judgment-debtor was again arrested in execution of the decree and brought before Court. On a representation that the debt would be soon discharged, the debtor was temporarily released from arrest and was not sent to jail. The Debt Relief Petition was presented by the debtor on 11-3-1121 before the Ettumanoor Munsiff''s Court and an order staying execution of the decree was obtained. There are six Respondents to the petition. The first is the aforesaid hypothecatee, the second is the Petitioner and the third to sixth inclusive are the legal representatives of one Varkey to whom the debtor owed money under a promissory note on foot of which the said counter-Petitioners obtained decree in O.S. 232/1116 of the Meenachil Munsiff''s Court. An amount of Rs. 400/- is stated to be due thereunder. The only asset shown by the debtor in his application is an item of immovable property purchased by him in the year 1120 for Rs. 200/- but which is stated in the application to be worth Rs. 500/-.

The debtor''s case is that the amount borrowed from the hypothecatee was utilised for improving the hypotheca that is the property purchased by him for Rs. 200/-. In the Debt Relief Petition the debtor expresses his readiness to surrender the property to the Court and claims an one-fourth thereof, that is, property worth Rs. 125/- free from all liabilities. The first counter-Petitioner, that is the hypothecatee, claimed preferential payment of the principal amount of Rs. 300/- as also interest thereon at 12 per cent, as a secured creditor. The 2nd counter- Petitioner, namely the Petitioner here, contended that the debt alleged to be due to the 1st counter- Petitioner is unreal and that the hypothecation was resorted to as a result of a conspiracy between the parties who are relations, to defeat the debt due to him under the decree.

It was further contended that in any event the alleged date of the debt being long after the Debt Relief Act came into force, the debt assuming it is real, cannot be regarded for purposes of the Debt Relief Petition. He also contended that the decree obtained by counter-Petitioners 3 to 6 in O.S. 232/1116 had been discharged and that nothing was due thereunder. He contended further that the debtor had been and was conducting a business which brought him large profits from out of which property of considerable value had been purchased by him in the name of his second wife for his benefit.

It was also contended that subsequent to the obtaining of the decree the debtor had gifted his property to his second wife and children by the first, with a view to screen the same from the reach of creditors. It was contended that these items formed part of the assets of the debtor, that they include his residential house and that these assets not having been disclosed in the application and the debtor not having expressed his readiness to surrender these also to the Court for purposes of settling his liabilities, the application under the Debt Relief Act could not be maintained. Counter-Petitioners 3 to 6, that is the holders of the decree in O.S. 232/1116 were ex parte.

The Munsiff after considering the oral and documentary evidence that was tendered before, him reached the conclusion that the objections raised had not been substantiated and therefore allowed the petition by order dated 20-2-1123. The result of the order was that the assets of the debtor available towards the satisfaction of the two decrees mentioned in the petition would be Rs. 500/- minus Rs. 312/- (amount due to the hypothecatee) and Rs. 125/- (one-fourth of the total asset to be reserved for the debtor), that is Rs. 63/- towards a total liability of Rs. 600. This has to be rateably distributed between the two decree-holders who would get roughly one tenth of their amounts in full discharge and satisfaction of their claims. This was the order against which the Petitioner appealed to the District Judge who, as already stated, threw it out on the preliminary point that the appeal was unsustainable.

The Travancore Debt Relief Act, II of 1116 accompanied by its Amendment Act, III of 1116, both of which received His Highness the Maharaja''s assent on 31st Chingom 1116 and which came into force on 1-2-1116 was the second legislative measure in Travancore for relief of indebtedness the first being the Travancore Agriculturists'' Relief Act, in of 1112 which was passed on 23rd Dhanu 1112. Act III of 1112 was repealed subject to a proviso, by the 25th and last section of Act II of 1116.

Relief was afforded to debtors in two ways:

first by providing for full discharge of the liabilities by partial and instalmental payments (see Sections 8 and 9 of the Act). The quantum of the payment to be made depended upon the period during which the payment was proposed. This mode of payment was available to debts incurred before 23-5-1112 and was available whether decrees to realise them had been obtained or not. The creditor was given liberty by Section 10 to obtain a decree provided that execution thereof shall not be in contravention of the above sections.

Sections 11, 12, 13 and 14 refer to the details of the rate and calculation of interest, avoidance of sale of immovable property in execution of decrees, and the rights of parties on such avoidance. Section 15 provides for an application to the Court for fixing the amount in cases of doubt or dispute as regards the quantum of the liability u/s 9. Clause (4) of this section provides that:

15 (4) A proceeding under this section shall for purposes of inquiry and disposal be deemed to be a proceeding to which Section 103, CPC applies.

The 6th clause provides that:

(6) An appeal shall lie against any order passed by a Civil Court under Sub-section (1) to the Court to which appeals ordinarily lie from a decision of such Court in a suit for the re covery of the debt and in other cases to the authority notified by Our Government in that behalf.

The 7th clause enacts that:

(7) There shall be no second appeal against any order passed by the appellate Court or authority under Sub-section (6).

The first method of relief by payment of a part in discharge of the whole is contained in the above sections. Sections 16 to 21 provide for the second mode of relief afforded to debtors. They provide for the settlement of all the liabilities of the debtor by Court by effecting a distribution of the assets of the debtor among himself and his creditors, on the debtor submitting an application to Court u/s 16 expressing his desire for a fair settlement of his debts and stating that he unconditionally leaves all his assets in the control of the Court with the other particulars mentioned in that section which include,

the place where the applicant resides and the place or places where he holds any property movable or immovable; the amount and other particulars of claims against him whether arising before, on or after the 23rd Dhanu 1112, together with the name, address and residence of his creditors, the amount and other particulars of all his property including claims due to him together with a specification of the value of such property and the place or places at which any such property is to be found and details of any mortgage, lien or charges thereon.

The Court before which the application is to be presented is provided in Clause (4). The forum is determined by the quantum of the liabilities. Should the liabilities not exceed Rs. 2,000/- which is the pecuniary jurisdiction of a Munsiff''s Court, then the application should be before the Munsiff''s Court. In all other cases it should be before the District Court whose pecuniary jurisdiction is unlimited.

Section 17, Clause (1) provides for the fixing by the Court of the date for the hearing of the application and Clause (2) for the issue of notice to all the parties to the proceedings by registered Anchal or Post as well as in such other maimer if so prescribed.

Section 18 enacts that:

The Court shall determine the admissibility and amount of each such claim and for such purpose take all steps necessary for the determination of any question raised in the case. The procedure prescribed in the Travancore Insolvency Act shall mutatis mutandis be applicable to such proceedings.

Section 19 provides that:

The Court shall then settle the liabilities of the debtor in the manner mentioned hereunder, namely:

(a) One-fourth of the entire assets not exceeding Rs. 3000 in value shall be allotted to and given over to the debtor subject only to such liabilities by way of public revenue due on land as defined in the Revenue Recovery Act (Act 1 of 1068) or any tax, cess, fee, rent, Jea- mikaram or such other dues chargeable thereoo by virtue of any enactment for the time being in force:

Provided that in such allotment the homestead in which the debtor lives shall wherever possible be allotted to his share;

(b) after payment of all liabilities by way of public revenue due on land as defined in the Revenue Recovery Act (Act 1 of 1068) or any tax, cess fee, rent, jenmikaram or such other dues chargeabie by virtue of any enactment for the time being in force, all the remaining assets shall be distributed and made over to the creditors:

Provided that secured creditors shall, in the order of mutual priority be paid in preference to unsecured creditors, and after payment of all debts due to Our Government or to any local authority, the balance of the assets shall be distributed amongst, unsecured creditors in proportion to their debts.

Section 20 renders void all alienations made by the debtor during the pendency of an application u/s 16. Section 21 provides that:

During the pendency of an application u/s 16 the Court may stay the execution of any decree against the. applicant or his properties.

Section 22 restricts the scope and operation of the Act in certain cases. Section 23 amends the CPC regarding arrest of judgment debtors in execution of decrees. Section 24 reserves the power to make rules with the Government in order to carry into effect the purposes of the Act.

The Act makes no provision for appeal against any order passed under Sections 16 to 21 nor is there any express indication that no appeal shall lie as for instance by providing that the orders shall be final. The question of appealability of orders passed by the Court under these sections does not admit of a general answer. Various varieties of situations would arise calling forth particular orders whose nature has to be determined by reference to the particular situations and facts out of which the orders emerge. The following situations can be envisaged:

The applicant may owe only debts incurred after 23-5-1112. The question will arise whether, if he is not liable for at least one debt incurred before 23-5-1112. the petition would be maintainable. Even if he owes a debt incurred before 23-5-1112. the question whether debts contracted subsequently would also come up for consideration, which is the point raised in this very petition, may arise. The liability of the debtor may be under decrees or not (some liabilities may be under decrees and some not); there might be a question between the debtor and the creditors as to the quantum of the liabilities. There might also be questions between the debtor and the creditors as to the character of the liabilities, for instance, a creditor may claim a lien or a charge over the property which the debtor may not admit. The debtor may not admit the existence of a debt and the creditor may seek to intervene in the proceedings for having his claim adjudged and satisfied.

These are certain instances wherein questions might arise between the debtor on the one hand and the creditors on the other. There will also be instances of questions arising between the creditors ''inter se'' as regards the existence, the quantum, the quality or the character of their claims, that is to say, a creditor may claim as a secured creditor payment in preference to simple creditors. Questions of priority among the various secured creditors may also arise. All these questions have to be determined before setttlement of the liabilities and before distribution of the assets u/s 19.

Different considerations prevail as regards the appealability of orders passed under the aforesaid situations which are merely illustrative and not exhaustive, that is to say, appealability might attach to some orders but might not attach to some Ors. , even if appealability attaches at all to any order.

"An appeal does not exist in the nature of things: a right to appeal from any decision of any tribunal must be given by express enactment",

observed Bramwell L.J., in - ''Sanback Charity Trustees v. North Staffordshire Railaway Co.'' (1877) 3 QB 1 at p. 4 (B). This principle is well established. See - "Jota Ram v. Ishur Das '' 9 All 445 (C); ''F.H. Percy v. J. Percy'' 18 All 375 (FB)(D); ''Rangoon Botatoung Co. v. Collector Rangoon'' 40 Cal 21 (PC) (E) and - ''Meenakshi Naidu v. Subramaniya Sastri'' 11 Mad 26(PC) (F). 7. Another principle equally well-established is that

when a question is stated to be referred to an established Court without more, it (in my opinion) imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches,

per Viscount Haldane L. C. in - ''National Telephone Co. Ltd. v. Postmaster-General'' 1913 AC 546 at p. 552 (G ). Lord Simonds expressed the rule in the following terms in - AIR 1948 12 (Privy Council) .

The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable theretp and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.

Two prior decisions of the Privy Council in - ''Secretary of State for India v. Chelikani Rama Rao'', AIR 1916 PC 21 (I ), and - AIR 1936 93 (Privy Council) were referred to and followed.

Does the Debt Relief Act (Travancore) refer a question to the general jurisdiction of an established Court and what, if any, are the general rules of the CPC whose application is attracted within the meaning of the aforesaid dictum of Lord Haldane? The definition of the term ''Court'' in the 4th. clause of the 16th Section and the provision in the 18th section that:

the Court shall take all steps necessary for the determination of any question raised in the case.

no doubt prima facie show that it is the ordinary jurisdiction of the Civil Court that is to be invoked and exercised: the precise forum being determined by the pecuniary jurisdiction of the Court. Regarding the procedure to be followed the last sentence in the 18th section which has been already read provides that:

the procedure prescribed in the Travancore Insolvency Act shall mutatis mutandis be applicable to such proceedings.

The Travancore Insolvency Act, 8 of 1108, by Section 5 in its turn provides that the Court "shall have the same powers and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction".

A special provision is made in Section 77 which enacts in Clause (1) that:

The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made by the Court under the provisions of this Regulation may appeal to the High Court and the decision or order shall for the purposes of the appeal be deemed to be a decree of the Court passed in the exercise of its original civil jurisdiction.

The contention urged on behalf of the Petitioner that the said provision for appeal contained in the Insolvency Act applies to proceedings under the Debt Relief Act must first be disposed of. The provision for the application of the procedure for trials in insolvency will not attract the provision for appeals because an appeal is not a part of the trial of the proceedings in insolvency. There are various statutes providing for the application of a procedure for trials in particular matters to be followed in the trial of other matters and it has been uniformly held that the provision for the application of the procedure will not attract the application'' of the provision contained in the particular statute for appeals, or other rights. The application of the procedure under the Revenue Recovery Act for recovery of other dues than revenue is the commonest instance.

Turning to the Code of Civil Procedure, appeals are provided from decrees and orders. Section 104 which provides for appeals against orders, mentions in itself and by reference (the rules under Order 43) to particular orders passed under particular provisions of the Code against which appeals are allowed. That section cannot avail the Petitioner because the orders in this case were passed not under any specific provision of the Code of Civil Procedure. but under the Debt Relief Act. Section 105(1) of the Code Civil Procedure. enacts that:

Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

It may be mentioned that Counsel for the Petitioner was not understood to contend that Section 104 will avail him to sustain the appeal. The provision that was mainly depended upon was that relating to appeals against decrees provided for by Section 96 which contains a general rule regarding appeals and which enacts as follows:

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

The contention urged was that the order passed by the Court u/s 18 of the Debt Relief Act is a decree within the meaning of the CPC and therefore it is appealable as appeals have been permitted against all decrees. The term ''decree'' is defined in Section 2, Clause (2) as follows:

(2) ''decree'' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 141, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

The definition of the term ''decree'' contained in the Code of Civil Procedureof 1882 was different and was as follows:

"decree" means the formal expression of an adjudication upon any right claimed, or defence- set up, in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit or appeal. An order rejecting a plaint, or directing accounts to be taken, or determining any question mentioned or referred to in Section 244, but not specified in Section 588, is within this definition; an order specified in Section 588, is not within this definition.

The importance of this difference in the definition of this term in the two Codes will appear hereafter in considering the applicability of certain decisions which were relied upon by the Petitioner. Turning to the definition of the term ''decree'' contained in the'' Code of 1908, we find that the first sentence refers to decrees properly so called and the second sentence provides that the term "shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144".

The remaining part of the definition states what the expression shall not include, which is not relevant for the purpose of this case. Turning to the first sentence in the definition, it is clear that an adjudication to constitute a ''decree'' should be one made in a ''suit''. The expression ''suit'' is not defined in the Code. Section 26 enacts that:

Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

No other manner of instituting a suit than by the presentation of a plaint has, up till now, been, prescribed. See -- ''Chandra Kanta v. Rajani Kanta'' 164 IndCas. 44 Cal (K). The corresponding provision in the Code of 1882 is contained in Section 48 of the Code. The necessity for a, plaint to institute a suit was insisted upon even in the Code of 1859 (VIII/1859), Section 25 of which, provided that:

All suits shall be commenced by a plaint, which, except when otherwise specially provided by this Act, shall be presented to the Court by the Plaintiff in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf.

Section 141 of the Code (Act v. of 1908) enacts that:

The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction.

The corresponding provision in the Code of 1882 is contained in Section 647 which reads as follows:

The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceeding''s in any Court of Civil Jurisdiction " other than suits and appeals.

The conflict of views that there was as to whether proceedings in execution were proceeding other than suits or appeals, was set at rest by Act 6 of 1892 which added an explanation to the section as follows:

Explanation: This section does not apply to applications for the execution of decrees which are proceedings in suits.

In - "Thakur Prasad v. Fakirrulla'' 17 All. 106 PC (L), the Judicial Committee held that the true meaning of the section was as mentioned in the aforesaid explanation and that the Act, 6 of 1892 "does nothing more than express the true meaning of the Code of Civil Procedure." The proceedings spoken of in Section 647 includes "original matter in the nature of suits such as proceedings in probates, guardianship, and so forth, and do not include "execution, (s.c. at p. 111).

This section deals with procedure alone. It does not confer any substantive right not expressly given by the Code. A right of appeal is a substantive right and cannot therefore be claimed on the strength of this section. See - ''Raja v. Srinivas'' 11 Mad 319 (M); - ''Parasurama Aiyar v. Seshier'', 27 Mad 504 (N ); - AIR 1942 8 (Nagpur)

The question then is whether the order passed in the case will be a decree within the meaning of the first or whether it can be deemed to be a decree within the meaning of the second sentence of the definition. If the order does come within the ambit of the definition of ''decree'', then the application of the general rule in the Code of Civil Procedure. embodied in Section 98 as regards appeals against decrees is attracted and the order will be subject to an appeal as also a second appeal. If, however, the order does not come within the ambit of the definition, then it is not appealable.

Before considering the appealability of the order in the present case, it would be convenient and advantageous to refer to some of the important cases wherein the one or the other of the aforesaid two principles has been applied.

In - ''1877-3 QB 1 at p. 4 (B)'', the question arose whether the Queen''s Bench Division had Jurisdiction to review the master''s taxation. The Queen''s Bench Division said that they had not, and that the view was confirmed by the Court of Appeal. Bramwell L. J. observed in that case as follows at p. 4:

If the legislature intended the Court to review the taxation, it ought to have conferred this power by express words. An appeal does not exist in the nature of things: a right to appeal from any decision of any tribunal must be given by express enactment.

With this view Brett, L.J. and Cotton L.J. ''concurred. In - ''11 Mad 26 (PC) (F)'', where the question of appealability of an order passed by the Civil Court appointing a person to fill up a vacancy among the members of a committee u/s 10 of Act 20 of 1863 (Madras Religious Endowment) called the Pagoda Act, arose, the Privy Council held that the Act in terms did not confer a right of appeal, that the right of appointing a member of the committee is placed in the civil Court not as a matter of ordinary civil jurisdiction but because the officer who constitutes the Civil Court is sure to be one of weight and thority and that it was the bestowing on the District Judge a right to exercise his discretion. The argument that though that Act did not give a right of appeal "yet a right of appeal must be found in the general law", relying upon Section 540 of Code of Civil Procedure(Act X of 1877) which gives a general right of appeal from decrees of Courts exercising original jurisdiction, was repelled by reference to the definition of the word ''decree'' as modified by Act 30 of 1879, according to which, ''decree'' means a formal expression of an adjudication upon any right, claim, or defence, set up in a Civil Court where such adjudication decides'' the suit or the appeal.

Their Lordships held that in their opinion:

There was no civil suit respecting the appointment and it would be impossible to bring an order made by the District Judge pursuant to Section 10 of the Pagoda Act within the definition of a decree as contained in the Code, and no other general law has been suggested. at Page 35.

Their Lordships held that:

In approaching the consideration of this question of appealability, they cannot assume that there is a right of appeal in every matter which comes under the consideration of a Judge; such right must be given by statute, or by some authority equivalent to a statute. (Page 34).

In - ''40 Cal 21 (PC) (E)'', where the question was whether an appeal lay to the Privy Council against a decision of the High Court given u/s 54 of the Land Acquisition Act, 1894, which provided that:

Subject to the provisions of the CPC applicable to appeals from original decrees, an appeal shall lie to the High Court from the award or from any part of the award of the Court in any proceedings under the Act.

Quoting the dictum of Lord Bramwell extracted above, Lord Macnaughten observed as follows:

Their Lordships cannot accept the argument or suggestion that when once the claimant is admitted to the High Court he has all the rights of an ordinary suitor, including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the High Court made in the course of its ordinary jurisdiction. (Page 20).

In - ''Bamachandra Rao v. Ramachandra Rao'' AIR 1922 PC 80 (P), this decision was considered by the Privy Council and it was pointed out by Lord Buckmaster delivering judgment of the Board that it is confined to the first of the two perfectly separate and distinct forms of procedure contemplated by the Land Acquisition Act which related to the fixing the amount of the compensation and which is described as being an award. By Section 54 of the Act an appeal from that award or of any part of the award is given to the High Court and in those circumstances it was held that the appeal so given was the only one open to parties and that even if appealed against, the award still retained its characteristics and was incapable of further appeal. Rama,Chandra''s case referred to the second stage after the award has become final when all questions as to the fixing of compensation are at an end. The duty of the Collector in case of dispute as to the compensation is to place the money under the control of the Court and the parties then can proceed to litigation in the ordinary way to determine what their right and title to the property may be.

Lord Buc.kmaster observed:

How the proceedings were commenced is a matter that is not material, provided that they were instituted in the manner that gave the Court jurisdiction, for they ended in a decree made by the High Court and appealable to this Board. (At p. 83 of AIR 1922 PC 80 (P

Before the decision of the Judicial Committee in - AIR 1922 PC 80 (P)'', which was in 1922 and after the decision of the Board in - 40 Cal 21 (E)'', the Legislature intervened and in 1921 amended Section 20 of the Land Acquisition Act by the addition of a Clause (2) to the effect that:

Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (2) and Section 2, Clause (9) respectively of the Code of Civil Procedure1908.

The result is as observed by the Judicial Committee in - AIR 1939 133 (Privy Council) that part of the judgment in - ''AIR 1922 PC 80 (P)'', to the effect that:

where the matter referred was not the adequacy of the amount of compensation awarded, but a dispute between the persons claiming compensation, involving, it may be difficult questions of title, the resultant decision was not an award but a decree." At p. 136, AIR 1939 133 (Privy Council)

has become academic. The question that, arose in Ramachandra''s case was only one of res judicata and not of appealability. The objection that the decision given in Land Acquisition proceedings which was set up as a bar was not given in a former suit, was answered by the Privy Council thus:

whether this were so or not makes no difference for it has been recently pointed out by the Board in - ''G.H. Hook v. Administrator General of Bengal'' AIR 1921 PC 11 (R), that the principle which prevents the same case being twice litigated is of general application, and is not limited by the specific words of the Code in this respect." (At p. 84, AIR 1922 PC 80 (P).

In - ''1913 AC 546 (G)'',

where a telephone company by an agreement under seal made in 1905 agreed to sell to the Postmaster General all the plant in use by the company on December 31, 1911, and any dispute as to the value of the plant was to be referred to the Railway and Canal Commission if they should be authorised to determine it. The Telegraph (Arbitration) Act, 1909, enacted (Section 1) that any difference between the Postmaster-General and any body or person under any agreement relating to telephones should, if the parties agreed, be referred to the Railway and Canal Commission, who were bound to determine it; and (Section 2) that all proceedings relating thereto should be conducted by the Commission in the same manner as any other proceeding was conducted by them under the Railway and Canal Traffic Acts, 1873 and 1888, and that any order of the Commission on any such difference should be enforceable as any other order of the Commission, provided (inter alia) that any such matter of difference might, in certain events, be heard. and determined by the two appointed commissioners. A difference having arisen as to the value of the plant, the Commission, at the request of the parties, fixed and determined the value. It was held that the reference to the Commission under the Telegraph (Arbitration) Act, 1909, was a reference to them as a Court of record and not as arbitrators, and that an appeal lay from their decision on a point of law to the Court of Appeal (Head Note). Viscount Haldane, L.C. said in the course of his speech that the 17th section of the Railway and Canal Traffic Act, 1888 which was applicable to the case gives right of appeal to a Court of Appeal excepting where the questions are of fact or of locus standi. (At page 551).

Lord Shaw in the course of his speech stated as follows:

I do not hesitate in adopting the language of Lord M''Laron in - ''North Eastern Ry. Co. v. North British Ry. Co.'', (1897) 25 R 333 (S), when that learned Judge said, "whether this is arbitration or jurisdiction, there lies, in my view, an appeal u/s 17 of this Act of 1888, because'' it is not said that an appeal shall lie from a legal decision of the Commissioners, or that an appeal shall lie under certain conditions, but that ''save as otherwise provided by this Act an appeal shall lie from the Commisioners'', that is, from every act of the Commissioners'', done under statutory authority, save as otherwise provided.

The contention urged that the reference to the Commission was as a body of arbitrators and not as a Court of record was repelled. The Court of Appeal dealt with the matter under powers conferred as per Section 17. An appeal to the House of Lords was made u/s 3 of the Appellate Jurisdiction Act of 1876 wherein the Appellants repeated their contention which had been repelled by the Court of Appeal. It was under these circumstances that Viscount Haldane said as follows:

If the reference is one on the same footing as a reference under the general Acts, that is, a. reference to the Commission as a Court of record, with a right of appeal expressly provided, this is decisive against the points raised in argument for the Appellants. And I find nothing in the Act of 1909 to cut down the effect of the words at the end of Section 1, which appear to me to provide for a reference to the Commission in its usual capacity. When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches. at Page 552.

(15a) The case in - AIR 1916 PC 21 (I)'', arose under the Madras Forest Act, 5 of 1882, Section 3 of the Act provided that:

the Governor in Council may constitute any land at the disposal of the Government a reserve forest.

A notification containing a declaration to that effect specifying the particulars of the property and appointing a forest settlement officer to inquire into and determine the existence, nature, and extent of any rights claimed by or alleged; to exist in favour of any person in or over, such. land is provided by Section 4 Sections 6 and 8 provide for the enquiry into and determination any claim so made. Section 10(1) enacted that:

the forest settlement officer shall pass an Order 1 specifying the particulars of such claim and admitting or rejecting the same wholly or in part.

Section 10 (2) provided that:

If such claim be rejected wholly or in part, the claimant may, within thirty days of the data of the order, prefer an appeal to the District Court in respect of such rejection only.

The Judicial Committee held that ("when, proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Code of Civil Procedure. apply"). They accepted the view held by a Full Bench of the Madras High Court in - ''Kamaraju v. Secy, of State for India'' 11 Mad 309 (T), a decision given in 1888 under the Madras Forest Act which had been acted upon in Madras ever since. The decision of the District Court of Godavari which was appealed against in the High Court was dated 27th July 1904. The case was therefore governed by the Code of Civil Procedure. of 1882, the definition of the term ''decree'' wherein (which has been already read) includes the decision in an appeal whether such appeal is against the decree in a suit or not. The decision of the District Court given in the appeal made thereto u/s 10(11) of the Madras Forest Act was therefore'' a decree against which an appeal lay to the High Court. The objection that the appeal to the High Court was itself incompetent was therefore repelled by the Judicial Committee.

The sentence from the judgment, extracted above, as regards the applicability of the ordinary rules of the CPC has reference to the rule of CPC permitting appeals to the High Court from decrees of the District Courts as also to the maintainability of appeals to the Privy Council. Sections 109 and 110 of the CPC of 1908 provide for appeals to the Privy Council against decrees of the High Court satisfying the conditions prescribed thereunder. These are also ordinary rules of the CPC After repelling the objections against the appealability as aforesaid, the Privy Council proceeded to distinguish the Rangoon case - 40 Cal 21 (PC) (E)'', on which reliance was placed, and observed: ("It was held that there was no right to carry an award made in an arbitration as to the value of land further than to the Court specifically set up by the statute for the determination of that value.") It has to be remembered that at that time no appeal to the Privy Council was provided by the Land Acquisition Act.

After distinguishing the - ''Rangoon Case (E)'', the Privy Council proceeded to observe as follows:

The merits of the present dispute are essentially different in character. The claim was the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation. at p. 23 of t AIR 1916 PC 21 (I).

The expression "ordinary incidents of litigation" obviously refers to the appealability of decisions of the District Court and of the High Court under the aforesaid provisions of the Code of Civil Procedure.

In - ''Canada Cement Co. v. La Ville De Montreal Est.'' AIR 1921 PC 219 (U), the question arose whether an appeal lay from a judgment of the Circuit Court, resort to which was permitted by the Canada Cities'' and Towns'' Act of Quebec, 1909, Article 5755, for the recovery of municipal taxes. That Act did not provide for an appeal. The contention that for that reason no appeal lay was repelled, relying upon - ''1913 AC 546 (G). Reference had therefore to be made to the Quebec Code of Civil Procedure. Sections 54, 55 and 52, which provided for appeals. On a true interpretation of those sections, the Privy Council took the view that no appeal was provided thereby against judgments of the Circuit Court and confirmed the conclusion reached by the Court of Kings Bench for the Province of Quebec that the judgment of the Circuit Court was final and was not susceptible of appeal.

AIR 1922 PC 80 (P)'', which has been already dealt with was the next case that came up before the Privy Council. As already stated it did not relate to appealability but only to res judicata. A few observations may have to be made about this matter and about this case hereafter.

In - ''Lord Strickland v. Giusepoo Crime'' AIR 1930 PC 227 (V), the Privy Council held that Section 33 of the Letters Patent (Malta) which provided that:

All questions which may arise as to the right of any person to be or remain a member of the Senate or the Legislative Assembly shall be referred to and decided by our Court of Appeal in Malta.

designated the "Court of Appeal in Malta finally to determine all these questions" and that an appeal to the Privy Council was not competent. Reliance was placed upon the fact that the authority to decide was not the "First Hall of the Civil Court or any Court of first instance, but by the Court of Appeal of Malta, the highest judicial tribunal of the island". Their Lordships quote a passage from - ''Theberge v. Laudry'', (1877) 2 AC 102 (W), ending with the following sentence:

Their Lordships have to consider not whether there are express words here, taking away prerogative, but whether there ever was the intention of creating this tribunal with the ordinary incident of an appeal to the Crown.

Reference is also made to the circumstances that the matter was one whose final decision had to be reached expeditiously as indicative of non-appealability. The election in that case was on 5th July 1928. The decision of the Court of Appeal was given in little more than a month on 14th August 1928 and it was more than a year later that the appeal to the Privy Council came up for hearing.

The next case that came up before the Privy Council was - AIR 1934 81 (Privy Council) . The question there was whether an appeal lay to the Privy Council from the decision, of the High Court given in an appeal presented u/s 75 of the Provincial Insolvency Act. Their Lordships did not deal with the question but disposed of the objection as follows, merely their earlier decision in - AIR 1916 PC 21 (I)'':

The Respondent raised a preliminary objection to the competency of the present appeal, maintaining that u/s 4(2), Provincial Insolvency Act, the decision of the District Court was final, subject only to a limited right of appeal to the High Court u/s 75 (2), any right of further appeal being thereby excluded. But, in Their Lordships'' opinion, this objection is not maintainable, in view of the decision of this Board in - AIR 1916 PC 21 (I). (at Page 82)

In - ''Chelikani Rama Rao''s case (I)'', in which a similar objection was taken in respect of a proceeding under the Madras Forest Act 5 of 1882, it was held (at page 23) that

when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country with regard to whose procedure, orders, and decrees the ordinary rules of the CPC apply:

The expression "ordinary rules of the CPC " obviously refer to the provisions of Sections 109 and 110, Code of Civil Procedure., permitting appeals to the Privy Council from decisions of the High Court.

The next case that came up before the Privy Council was - AIR 1936 93 (Privy Council) . It arose under the Punjab Sikh Gurdwaras Act (8 of 1925) and the question was whether an appeal lay to the Privy Council from the decision of the High Court, under Sections 109 and 110, CPC In overruling the preliminary objection against the maintainability of the appeal, their Lordships observed that:

the tribunal is given by Section 12(9) the same powers as are vested in a Court by the Code and by Section 12 (11) its proceedings ''so far as may be and subject to the provisions of this Act'', are to be conducted in accordance with the provisions of the Code. The formal expression of its decision is described by the Act as a decree or order. The matters which may be brought before the tribunal for decision include not only the question whether an institution is a Sikh Gurdwara within the meaning of Section 16, but includes also questions of the amount of compensation to be given to office-holders of Gurdwaras on their being superseded in office by the statutory authorities, and the decision of claims made to property which has been included in a list or lists as property belonging to a Sikh Gurdwara. The provision that appeals from the tribunal are to be heard by a Division Court and not by a Single Judge does not in their Lordships'' opinion indicate that the High Court in dealing with such matters would be exercising a special jurisdiction; nor should any such inference be drawn from the provisions of Section 37 which is consistent with the view that the jurisdiction conferred upon the High Court by Section 34 is intended to include the new subject matter as pari of the ordinary appellate jurisdiction of the High Court.

Following the earlier decisions in - ''AIR 1916 PC 21 (I)'' and - AIR 1934 81 (Privy Council) their Lordships held that:

having regard to the character, the veracity and the importance of the questions to be dealt with by a tribunal, and to the terms in which the right of appeal to the High Court is provided by the section, their Lordships are of opinion that the provisions of the CPC with reference to appeals to His Majesty apply to decrees of the High Court made u/s 34, Sikh Gurdwaras Act. at p. 96 of AIR 1936 93 (Privy Council) .

The judgment proceeded to say:

Their Lordships have not had the occasion to consider and do not pronounce upon the question whether the same conclusion could be reached in the case of appeals brought to the High Court under Sections 106 and 142 of the Act.

In - AIR 1939 133 (Privy Council) , it was held that:

If in a matter referred to him by the Collector in accordance with the provisions of the Land Acquisition Act, a Judge to whom it is referred has in a dispute as to their title to the land between two of the parties claiming compensation, determined that dispute, the matter is res judicata and binds the parties in any later suit involving that issue.

As already stated no question of appealability of any order arose in that case.

AIR 1948 12 (Privy Council) '', was a case that arose under the Madras Agriculturists'' Relief Act (IV of 1938). Section 8 of the Act provided that:

Debts incurred before the 1st October 1932, shall be scaled down in the manner mentioned hereunder, namely:

and the various Sub-sections which follow provided for the manner of scaling down Section 9- provided that:

(1) Debts incurred on or after the 1st October 1932, shall be scaled down in the manner mentioned hereunder, namely:

and the sub-clauses thereof provided for the manner of scaling down. Sections 18, 19 and 20 provided as follows:

(1) Where a decree is passed against an agriculturist in a suit filed on or after the 1st October, 1937, the Court shall allow only such costs as would have been allowable if the suit had been filed for the amount of the debt as scaled down in accordance with the provisions of this Act, and where in any such case a decree has been passed before the commencement of this Act, the Court shall, on application by the agriculturist, amend the decree accordingly.

(2) Nothing in Sub-section (1) shall apply to any suit instituted on or after the 1st October, 1937 and before the commencement of this Act in respect of a claim which would be barred by limitation before the 1st April 1938.

(1) Where before the commencement of this Act, a Court has passed a decree for the repayment of a debt, it shall, on the application of any judgment-debtor who is an agriculturist or in respect of a Hindu joint family debt, on the application of any member of the family whether or not he is the judgment- debtor or on the application of the decree- holder, apply the provisions of this Act to such, decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree accordingly or enter satisfaction, as the case may be:

Provided that all payments made or amounts recovered whether before or after the commencement of this Act, in respect of any such, decree shall first be applied in payment of all costs as originally decreed to the creditor.

(2) The provisions of subjection (1) shall also- apply to cases where, after the commencement, of this Act, a Court has passed a decree for the repayment of a debt payable at such commencement.

Every Court executing a decree passed against a person entitled to the benefits of this Act, shall on application, stay the proceedings until the Court which passed the decree has passed orders on an application made or to. 1 made u/s 19:

Provided that where within 60 days after the application for stay has been granted the judgsment-debtor does not apply to the Court which passed the decree for relief u/s 19 on where an application has been so made and is rejected the decree shall be executed as it stands, notwithstanding anything contained in this Act to the contrary.

Explanation: The expression ''the Court which passed the decree'' shall have the same meaning as in the Code of Civil Procedure, 1908.

On 15-9-1925 a final decree was passed in a mortgage suit (O.S. No. 5/1921) on the file of the Subordinate Judge of Ramnad at Madura. Execution proceeding No. 79/1933 was taken out to enforce the final decree but before sale, the aforesaid Act was passed in March 1939. On 8-7-1938 the judgment-debtor made, execution application No. 237 of 1938 which was instituted E. P. No. 237 of 1938 in E. P. 79 of 1933. and was expressed to be made under Sections 20, 19 and 18 of the Act and Sections 47 and 151, CPC |On 25-7-1938 E.A. 237 of 1938 was dismissed by the Subordinate Judge on the ground that the judgment-debtor was not an agriculturist. From that order an appeal was brought to the High Court of Madras and that Court directed the Subordinate Judge to submit a finding whether the judgment-debtor was an agriculturist and if so, to what relief lie was entitled under the Act. On 9-2-1939 the Subordinate Judge after taking evidence wrote a detailed judgment reaching the conclusion that the judgment-debtor was not an agriculturist and was not entitled to any relief.

Meanwhile on 3-8-1938 the judgment-debtor had made an independent application, I.A. No. 361 of 1938 in the aforesaid O.S. 5 of 1921 to the same Subordinate Judge asking that the preliminary and final decrees in the said mortgage suit be amended in accordance with the provisions of the Act and that the debt might be declared to have been fully discharged. On 9-2-1939, after recording his finding in E.A. 237 of 1938, the Subordinate Judge passed an order dismissing I.A. 361 of 1938, in view of his finding in E.A. 237 of 1938. The judgment-debtor presented an appeal from the order of 9-2-1939 made in I.A. 361/1938 and that appeal came before the Madras High Court at the same time as the appeal from the order of 25-7-1938 in E.A. 237/1938.

Relying upon a decision of a Full Bench of the Madras High Court in - A.S. Nagappa Chettiar and Another Vs. Annapoorani Achi alias Karuppayi Achi and Another, which held that no appeal lay from an order u/s 19 of the Act, (the order of 9th February 1939 had been made under that section) the appeal against the order of 9th February 1939 was held to be incompetent but the request made to convert the appeal into a C. R. P. was acceded to and in revision the said order of 9-2-1939 was set aside Nevertheless, the appeal against the order of 25-7-1938 was treated as an appeal and it was rected that that order be set aside and the application remanded to the Subordinate Judge to be dealt with afresh. The High Court found, disagreeing with the Subordinate Judge that the judgment-debtor was an agriculturist within the meaning of the Act and was entitled to reliefs thereunder.

Referring to the Full Bench decision, their Lordships observed that:

in that case there were no proceedings in execution of the decree such as exist in the present case but the Court expressed the view that the existence of execution proceedings would |not make any difference.

Their Lordships observed as follows:

the true rule is that where a legal right is in dispute and the ordinary Courts of the country s seized of such dispute the Courts are goverened by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.

They proceeded and stated:

The question therefore to be considered in the present case is whether a right of appeal from the orders in question was conferred by the Code of Civil Procedure. The order of 9th February 1939 was not made in execution proceedings but it was made ''in a suit'' and, in their Lordships'' opinion, it amounted to the formal expression of an adjudication which so far as regards the Court expressing" it, conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, namely whether the judgment-debtor was an agriculturist and entitled therefore to have his debt discharged or reduced under the Act. In their Lordships'' opinion the order was a decree within the meaning of Section 2 (2), CPC and an appeal lay u/s 96 of the Code. That being so, the High Court was wrong in entertaining an application in revision, since u/s 115 of the Code there is no jurisdiction in revision where an appeal lies. The order of the High Court setting aside the order of the Subordinate Judge of 9th February 1939, will have to be set aside, but this is not of any practical consequence since the application on which the order was made was redundant. The appeal against that order of 25th July 1938 was rightly entertained. That order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code and an appeal therefore, lay u/s 96.

In saying that the order of 9th February 1939 was not made in execution proceedings but it was made in a suit, their Lordships refer to the suit, O.S. 5 of 1921, in which I.A. No. 361/1938 was filed. They do not hold that the application, I.A. 361/1938 is itself or amounts to, a suit.

This decision was considered by the Madras High Court in - S.A. Seshadri Ayyangar Vs. A. Narayana Nair, wherein it is stated thus:

the order of the City Civil Judge dismissing the execution petition of the landlord attracted to itself the provisions of Sections 2 (2) and 47, CPC with the consequent right of appeal given by Section 96.

It is clear from, the examination of the aforesaid authorities that in order that a party may have a right of appeal under the Code of Civil Procedure. his case must be capable of being brought under some specific provisions therein and that no right of appeal can be claimed merely because the jurisdiction that is exercised is original civil jurisdiction of the Court. The question therefore reduces itself to this namely whether the general right of appeal granted u/s 96 is available to the Petitioner and that question depends upon the further question as to whether that order is a decree within the meaning of Section 2(2) of the Code. The order in question was not passed in or in connection with proceedings in execution nor was it passed by the Court executing the decree within the meaning of Section 47 of the Code. The second sentence of the definition of ''decree'' in Section 2(2) is therefore inapplicable. Does the order come within the first sentence of the definition is the question that remains. It will come only if the application presented by the debtor u/s 16 of the Debt ''Relief Act can be considered to be a suit within the meaning of the definition.

As already stated, the word ''suit'' has not been defined in the CPC The expression occurs in the Limitation Act also but no definition is given in that Act either. In a Full Bench of the Calcutta High Court in - ''Hurro Chunder Roy Chowdiiry v. Shoorodhones Debia'' 9 WR 402 (Zl), presided over by Sir Barnes Peacock, C.J., the question arose as regards the interpretation to be placed upon the word ''suit'' in the Limitation Act, 14 of 1859 which was styled as "An Act to provide for the limitation of suits" and the Preamble was:

Whereas it is expedient to amend and consolidate the laws relating to the institution of suits, it is enacted as follows.

The precise question that arose was whether the period of limitation provided in the Act would apply to proceedings in a suit where the claim made was for mesne profits. In that connection, the learned Chief Justice observed as follows:

The word ''suit'' does not necessarily mean an action, nor do the words ''cause of action'' and ''Defendant'' necessarily mean cause upon which an action has been brought, or a person against whom an action has been brought, in the ordinarily restricted sense of the words. Any proceeding in a Court of Justice to enforce a demand is a suit; the person who applies to the Court is a suitor for relief; the person who defends himself against the enforcement of the relief sought is a Defendant; and the claim if recoverable, is a cause of action.

It was held that the period of limitation prescribed by Section 14 of the Act will apply to those proceedings and that decision was rested on the following grounds:

The Legislature has clearly shown what it understood by the word ''suit'' for the Act which provides a period of limitation in the case of proceedings by process of execution to enforce judgments and decrees, as well as periods for the limitation of actions or suits in the ordinary acceptation of the words, is described merely as an ''act to provide for the limitation of suits'' and it recites that ''it is, expedient to amend the law relating to the limitation of suits''. We ought not, in my opinion, to fritter away the law by construing words according to a mere technical sense, instead of giving them a broad meaning, so as to embrace all cases intended by the Legislature to be provided for.

showing clearly that the decision was based on consideration specially applicable to the Limitation Act.

The later Limitation Acts are different as they provide for periods of limitation for suits, appeals and applications separately. In - ''Dhonessur Kooer v. Roy Gooder Sahay'' 2 Cal 336 (FB) (Z2), Peacock C. J.''s interpretation of the term ''suit'' was placed before their Lordships for acceptance. Sir Richard Garth, C.J. delivering judgment of the Full Bench answered by saying:

We think that the word ''suits'' in the Act of 1871 was not intended to include ''applications''. In the Act of 1859 the word might have had a more extended meaning; but in the Act of 1871 a distinction seems to have been carefully drawn between ''suits'', ''appeals'' and ''applications''; each of these subjects being separately dealt with, and in different divisions of the schedule.

In - ''Watkins v. Pox'', 22 Cal 943 (Z3), also, a case under the Limitation Act Justice Hill said at p. 948:

But numerous examples of litigious business might be mentioned, to which it would, without an obvious misapplication of language, be improper to apply the word ''suit'' and I think that the term ought to be confined to such proceedings as under that description are directly dealt with by the Code of Civil Procedure, or such as by the operation of the particular Acts which regulates them are treated as suits.

In - Abdullah Ashgar Ali v. Ganesh Das, AIR (20) 1933 PC 63 Lord Russel delivering the judgment of the Privy Council said as follows:

Unless the application which the liquidators made on 26th March 1928 was a ''suit instituted'' or an ''application made'', for which a period of limitation is prescribed by Schedule 1, no question of limitation in regard thereto can arise. There is no definition of suit in the Act, beyond the provision contained in Section 5 that unless there is anything repugnant in that subject or context, ''suit'' does not include an appeal or an application. The word ''suit'' ordinarily jneang, and apart from some context must be taken to mean, a civil proceeding instituted by tbg presentation of a plaint.

These cases related to the meaning of the word ''suit'' in and for purposes of the Limitation. Act and are really of no help in the matter of interpretation of the expression ''suit'' contained in Section 2 of the CPC Reference was made to these cases because of the fact that in - A. Mahalinga Kudumban and Others Vs. Theetharappa Mudaliar, on which great reliance was placed by the Petitioner, the aforesaid observations of Peacock. C. J. were depended upon as a guide to the interpretation of the word ''suit'' in Section 2 of the Code of Civil Procedure.

In - ''Venkata Chandrappa Nayanivaru v. Venkata Rama Reddi'' 22 Mad 256 (Z6), Subra monia Ayyar and Boddam, JJ., observed as follows:

No doubt there is authority for the view that the term suit is a very comprehensive one, that it is understood to apply to any proceeding in a Court of Justice by which an individual pursues that remedy in a Court of Justice which the law affords him, that the modes of proceedings may be various, but that if a right is litigated between parties in a Court of Justice the proceeding by which the decision of the Court is sought is a suit.

Their Lordships proceed to say;

A suit, according to Section 48 of the Code, must commence with a plaint, and a proceeding which is capable of terminating in a decree or an order having the force of a decree could not on that ground alone be deemed to be a suit within the meaning of the Code if it had not commenced with a plaint. Such a proceeding in strictness is only a proceeding in a suit. This is apparently the view of the Legislature, judging by the explanation added in 1892 to Section 647 of the Code. It would therefore, seem mora correct to hold that a proceeding u/s 244 is not a suit within the meaning of Section 12.

In this connection reference must be made to -''Muthuswami v. Official Assignee, Madras AIR 1936 Mad. 778 (FB) (Z7), where the rule of limitation applicable to suits was applied to be claimed by the Official Assignee representing the, insolvent''s estate to recover rents and profits by means of an application made by the sanction of the Court. It was held that the claim would be barred had the official assignee brought a sutt. It would equally be barred if the Official Assignee enforces the demand by means of an application which became possible on account of the sanction given by the Court. That decision has obviously no application in the present case, though great reliance was placed on it by Petitioner''s Counsel.

The only case in which a proceeding not commenced by the presentation of a plaint was regarded as a suit within the meaning of Section 2(2) of the CPC is -''22 Mad. 256 (Z6)\\ In that case, Devadoss and Jackson, JJ. considered the question whether a decision in a reference u/s 30 of the Land Acquisition Act is a decree Within the meaning of Section 2(2) of the CPC appealable u/s 96. The learned Judges observe as follows:

It is urged for the Respondent that there must be a suit so that the definition of the word ''decree'' may be applied to the land acquisition proceedings. The word ''suit'' is not defined in the Code and it is difficult to see why the word should not be applied to any contentious proceedings in a civil Court in which the rights of parties are in question and in which the Court is asked to determine them.

Their Lordships relied upon Sir Barnes Peacock C. J.''s interpretation of the word ''suit'' quoted above. This decision was considered by a Full Bench of the Madras High Court consisting of Madhavan Nair J., as he then was, Jackson and Lakshmana Rao, JJ., in - (Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, The question that arose in that case related to the appealability of an order of the District Judge, Nagapatam, u/s 84(2) of the Madras Hindu Religious Endowments Act (II of 1927) on an application to set aside the decision of the Board u/s 84 (1), in other words whether such an order was or was not a decree within Section 2(2) of the CPC Madhavan Nair, J. after a very elaborate consideration of the provisions of the CPC and the authorities, reached the conclusion that it is not a ; decree and is not appealable as such. With this view Lakshmana Rao J. concurred.

Jackson J. who was a party to the previous decision, stated:

The only reason for not calling it a plaint is that it is called a petition. (O. P. No. 31 of 1931). So the question reduces itself to a very narrow compass. Can a pleading be considered in law a plaint in spite of the fact that by the local statute it is styled an application? This may be arguable either way (for the difficulty in defining a suit, of -"22 Mad. 256 (Z6))'', and in these circumstances it seems better ''stare decisis'' and to affirm the decision in Appeal 44, 1931.

The view of the learned Judge is far from clear.

The contention urged on the ground that the contents of an application u/s 84 (2) are the same as the contents of a plaint as required by the CPC was repelled by Madhavan Nair, J. The arguments based on the fact that an application u/s 84 (2) Court-fee was payable as on a plaint and that such an application has been described as analogous to a regular suit(sic) were all repelled by Madhavan Nair, J. and concluded the discussion as follows:

But however much it may approximate to a suit it cannot be said for the reasons given above that under the Code of Civil Procedure. a proceeding commenced on such an application will fall within the meaning of the term ''suit''; if so, an order on an application made to the District. Court u/s 84 (2), Hindu Religious Endowment Act, cannot be called a decree and is not therefore appealable to the High Court.

The decisions of the Privy Council in -''11 Mad. 26 (P. C.) (F)'', -''AIR 1916 P. C. 21 (I)'', and -''AIR 1922 P. C. 80 (P)'', were considered and explained by Madhavan Nair, J. as has been done in this judgment.

A. Mahalinga Kudumban and Others Vs. Theetharappa Mudaliar, has in effect been overruled by this Full Bench decision. The question was again considered by Madhavan Nair and Stone, JJ. in - T.S. Krishnamoorthi Ayyar Vs. Special Deputy Collector of Land Acquisition, Madhavan Nair J. reiterated, the view that he took in the Full Bench, - (Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, '', distinguishing and explaining the decision of the Privy Council in - ''AIR 1922 PC 80 (P)''; - ''AIR 1916 PC 21 (I)'' and in - AIR 1934 81 (Privy Council) ''.

In a later Full Bench decision of the Madras High Court in - Chikkanna Chettiar alias V.S. Nanjappa Chettiar Vs. V.S. Perumal Chettiar and Another, (Z10), presided over by Leach, C. J. where the question as to the appealability of a decision given by a Subordinate Judge on a reference made u/s 30 of the Land Acquisition Act arose, it was said that they would have been bound, to follow the Full Bench decision in - (Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, '', had it not been for a later decision of the Privy Council in. - AIR 1939 133 (Privy Council) ;That decision, however, did not consider or decide the question of appealability of any decision but was concerned merely with the question whether a decision given in a land acquisition proceeding would bar the consideration of the matter decided therein, in a subsequent proceeding between the same parties relating to title to the property, on the principle of res judicata.

Leach, C. J., however, considered that the question of appealability was also decided by the Judicial Committer in - ''Bhagwati''s case (Q)'', because the earlier decision of the Board in - ''AIR 1922 PC 80 (P)'', which was affirmed, and. in support of his position the learned Chief Justice quotes the following passage from what Lord Porter said in - ''Bhagwati''s case (Q):

In order successfully to establish a plea of res judicata or estoppel by record, it is necessary to show that in a previous case a Court having jurisdiction to try the question came to a decision necessarily and substantially involving the determination of the matter in issue in the later case.

It was at one time a matter of doubt in India, whether the determination of a Court to which a matter has been referred by the Collector u/s 18, Land Acquisition Act, was such a decision. That doubt was resolved by the judgment of this Board in - ''AIR 1922 PC 80 (P)'', which decided that where a dispute as to the title to receive the compensation has been referred to the Court, a decree thereon not appealed from renders the question of title res judicata in a suit between the parties to the dispute. In that case some question arose as to whether any appeal lay to His Majesty in Council in a case where the determination of the Judge ended in an award and not in a decree. The Board took the view that where the matter referred was not the adequacy of the amount of compensation awarded, but a dispute between the persons claiming compensation, involving, it may be, difficult questions of title, the resultant decision was not an award but a decree. at p. 475 of Chikkanna Chettiar alias V.S. Nanjappa Chettiar Vs. V.S. Perumal Chettiar and Another,

This extract is a part of a paragraph of the judgment of Lord Porter, the remaining part of which is as follows:

This particular part of the judgment has, however, become academic, since an appeal to His Majesty in Council is now given by Section 26, Sub-section 2 of the Land Acquisition Act, which was added by amendment in 1921 and enacts. ''Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (2) and Section 2, Clause (9) of the Code of Civil Procedure, 1908.

Madhavan Nair J.''s explanation of - ''AIR 1922 PC 80 (P);based upon the definition of the term ''decree'' contained in the Code of 1882, was not found acceptable by Leach, C. J. because the Privy Council was taken to have affirmed the -decision in - ''Ramachandra''s case (P)'' in - AIR 1939 133 (Privy Council) , which arose under the Code of 1908. It is clear from the above extract that this particular aspect of the question was not considered in - ''Bhagwati''s case (Q)'', as it had by that time become academic.

Leach, C. J. expressed himself as follows:

(Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, '', was decided by a Full Bench consisting of Madhavan Nair, Jackson and Lakshmana Rao, JJ. and the case had reference to the question whether there was appeal to the High Court, either under the Madras Hindu Religious Endowments Act, 1926, or under the Code of Civil Procedure, from an order passed by the District Judge u/s 84(2), Madras Hindu Religious Endowments Act. The provisions of that Act have nothing really in common with the provisions of the Land Acquisition Act, but in - (Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, the effect of the judgment of the Privy Council in - ''AIR 1922 PC 80 (P)'', was discussed at length, and the, Respondent places great reliance on the observations made by Madhavan Nair, J. as they are to the effect that the Privy Council was only considering whether the order of this Court on appeal constituted a decree within the meaning of the CPC of 1882. Under the Code of 1882 the word "decree" was defined as:

the formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court when such adjudication so far as regards the Court expressing it, decides the suit or appeal.

The words ''or appeal'' have been omitted from "the present Code and the Full Bench considered that the presence of these words made all the difference. If the Court had to decide the present petition in the light of the interpretation in - ''AIR 1922 PC 80 (P)'', in - (Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, we should be bound to hold that an appeal does not lie in a case like the present one. But the matter does not rest there, because in - AIR 1939 133 (Privy Council) the Privy Council considered its decision in - AIR 1922 PC 80 (P) in a case which arose after the Code of 1908 came into force, and it has reaffirmed it T.S. Krishnamoorthi Ayyar Vs. Special Deputy Collector of Land Acquisition, was decided by Madhavan Nair and Stone, JJ., and the same view of the effect of the decision in - AIR 1922 PC 80 (P)'', was taken. The fact that this opinion was expressed in a case relating to the decision of a special judicial officer appointed u/s 3 (d), "Land Acquisition Act, led to the conclusion of the Court below that it was binding in the present case.

The latest decision of this Court is that of King J. in - Raghunatha v. Karuppdah'' AIR 1939 Mad 716 (Zll) and was decided after the District Judge had dismissed. the Petitioner''s appeal. This was a reference to the Subordinate Judge u/s 30, Land Acquisition Act, relating to dispute between a Zamindar and a number of ryots with regard to the distribution of compensation awarded in respect of land which had been acquired. My learned brother King considered that the case was governed by the decision of the Privy Council in - ''AIR 1922 PC 80 (P)'' and held that an appeal lay, an opinion which I share, although had it not been for the decision of the Privy Council in -''AIR. 1939 PC 133 (Q)'', I should have felt constrained to hold that the interpretation of -''AIR 1922 PC 80 (P)'', by the Full Bench in - (Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, was binding on us. In my opinion, all controversy is set at rest by the judgment of the Privy Council in - AIR 1939 133 (Privy Council) The opinion expressed in - ''AIR 1922 PC 80 (P)'', was there reaffirmed, notwithstanding the alteration made by the present Code in the definition of the word decree''. In the light of the recent pronouncement of the Privy Council - ''AIR 1922 PC 80 (P)'', must be taken to decide that an order, not merely the order on appeal but an order determining a reference u/s 18 or u/s 30 - it is admitted that there is difference in principles between the two Sections - is to be regarded as a decree and not as an award. It follows that the interpretation to - ''AIR 1922 PC 80 (P)'', given by the Full Bench in - (Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, can no longer be regarded as being authoritative." At Pages 476 and 477 of Chikkanna Chettiar alias V.S. Nanjappa Chettiar Vs. V.S. Perumal Chettiar and Another,

In this view - A. Mahalinga Kudumban and Others Vs. Theetharappa Mudaliar, ; was considered to be good law by Leach, C. J.

The ''ratio decidendi'' of this Full Bench decision is, therefore, as held in - A. Mahalinga Kudumban and Others Vs. Theetharappa Mudaliar, '', by Devadoss and Jackson, JJ., that a reference to the Court u/s 30 of the land Acquisition Act is a suit and the decision thereon, a decree u/s 2 (2), CPC The controversy on this question was set at rest by the decision of the Supreme Court in - Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, , where the question arose whether a previous decision of the Privy Council in - AIR 1938 254 (Privy Council) given in Land Acquisition proceedings would bar the consideration of the question of title therein decided, in a subsequent suit. It is necessary''to read the following extract from the judgment:

Mr. Panchanan Ghose for the Sens made valiant effort to escape from the effect of the Privy Council judgment in - AIR 1938 254 (Privy Council) '', on a number of grounds. None of his arguments, however, was convincing and might well have been summarily rejected but we think that it is due to Mr. Ghose and his long standing at the Bar that the arguments are nottic ed and met.

The first contention raised by him was the judgment of the Privy Council could operate as res judicata against the present contention of the Sens and the mortgagees, about the title to the four-anna share of Raj Ballav''s estate, because the subject-matter of those proceedings was the compensation money, a sum of Rs. 900, and not the property that is the subject-matter of the present suit. He argued that when the plea of res judicata is founded on general principles of law, that plea can only prevail provided the subject-matter in the two cases is identical. It was conceded that such contention could not be sustained under the provisions of Section 11 of the Code.

In our opinion, this argument is untenable and was negatived by their Lordships of the Privy Council in - AIR 1939 133 (Privy Council) cited above, in clear and emphatic terms. In that case, in a regular suit which concerned the rest of the property the plea of res judicata was upheld by reason of the decision in the land acquisition case which concerned Anr. part of the property which had been acquired and for which compensation was payable. The quotation already cited earlier from this decision brings out that point clearly. The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases.

It was then argued by Mr. Ghose that the Judge who decided the apportionment issue in the land acquisition proceedings of 1928 was a Special Judge appointed under the Land Acquisition Act and not being a District Judge, the two decisions of the Privy Council, i.e., ''AIR 1922 PC 80 (P)'' and - AIR 1939 133 (Privy Council) had no application, as the Special Judge had no jurisdiction to hear the present suit, while the District Judge in those cases would have jurisdiction to hear the regular suits. It was urged that to substantiate the pica of res judicata even on general principles of law it was necessary that the Court that heard and decided the former case should be a Court competent to hear the subsequent case. This contention was based on the language of Section 11.

The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata, by Section 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decidcd the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction, like Revenue Courts, Land Acquisition Courts, Administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute. We have not been able to appreciate the distinction sought to be made out by Mr. Ghose that had this matter been decided by a District Judge, then the decision of the Privy Council would have been res judicata but as it was decided by a Special Judge the effect was different. The District Judge when exercising powers of a Court under the Land Acquisition Act, in that capacity is not entitled to try a regular suit and his jurisdiction under the Land Acquisition. Act is quite diiferent from the jurisdiction he exercises on the regular civil side.

The decisions in - A. Mahalinga Kudumban and Others Vs. Theetharappa Mudaliar, in - Chikkanna Chettiar alias V.S. Nanjappa Chettiar Vs. V.S. Perumal Chettiar and Another, and in whichever other case, if any, taking the viev that a civil Court in trying a reference under the Land Acquisition Act is exercising jurisdiction or the regular civil side and the proceeding could therefore, be regarded as a suit and the decision therein, a decree within the meaning of Section 2 (2), Code of Civil Procedure., stand impliedly overruled by this decision of the Supreme Court which has clearly laid down that the jurisdiction exercised by the civil Courts in proceedings in land acquisition is a special jurisdiction conferred on them by the statute and is quite different from the jurisdiction that the Judge exercises on the regular civil side.

The solitary decision in - A. Mahalinga Kudumban and Others Vs. Theetharappa Mudaliar, which took the view that what is not a plaint under the CPC and is not directed to be regarded as such by any statute can be so regarded as to constitute the decision thereon a decree u/s 2 (2), Code of Civil Procedure., which, though effectually overruled by the Full Bench decision in - (Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, was sought to be re-suscitated in the later Full Bench decision in - Chikkanna Chettiar alias V.S. Nanjappa Chettiar Vs. V.S. Perumal Chettiar and Another, is no longer law. Neither that case nor any other case taking a similar view can, therefore, be relied upon or followed.

A decision in land acquisition proceedings is as observed by the Supreme Court, res judicata not u/s 11, Code of Civil Procedure., but under general principles. The rales of res judicata and appealability are not interdependent. A decision if appealable and has not been appealed against, would operate to bar a subsequent consideration of the matter decided as res judicata. The converse does not however follow, that is to say, all matters that constitute res judicata are not matters that become such on account of a prior decision not having been appealed against. A decision by a Tribunal with exclusive jurisdiction is an instance. The decisions of the Privy Council in - ''AIR 1922 PC 80 (P)'', and - AIR 1939 133 (Privy Council) were followed by the Supreme" Court in the above case on the question of res judicata. Those decisions of the Privy Council are, as stated above in this judgment, authorities only on the question of res judicata and not upon appealability and they have been so regarded and accepted by the Supreme Court.

Appealability would attach to a decision rendered by a tribunal by wrongly usurping jurisdiction. Viscount Haldane remarked in - ''1913 AC 546 at p. 552 (G) as follows:

If the Court of appeal wrongly usurped jurisdiction surely there must be an appeal to this House on that point.

See also - ''11 Cochin 38 (Z14);

In the present case, however, no question of usurpation of jurisdiction arises.

An application u/s 16, Debt Relief Act cannot be regarded as a plaint nor can the proceeding be regarded as a suit under the Code of Civil Procedure. Similarity in the contents does not aid its being so regarded nor can the payment of Court-fee be a claim to its being so regarded. If a proceeding under a statute is to be regarded as a suit, a direction in that behalf has to be contained in the statute itself. Section 295, Indian Succession Act which enacts that:

In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which, the Petitioner for probate or letters of administration, as the case may be, shall be the Plaintiff, and the person who has appeared to oppose the grant shall be the Defendant,

is an instance. In the CPC itself certain proceedings which are not suits are directed to be regarded as such. (See Section 331,'' Code of 1882. See also Section 47 (2). There are provisions in the Code for interpleader suits (Order 35) and administration suits (Order 20, Rule 13). The Travancore Debt Relief Act by Section 23 amended Section 44, Code of Civil Procedure.

The scheme of the Debt Relief Act is, as already stated, to grant two kinds of reliefs to debtors. In respect of debts incurred before 23-5- 1112 deferred instalmental payments of a portion as specified in Section 9 secure full discharge. Disputes regarding the amount so payable are directed to be decided by the Court u/s 15, the 4th Clause of which makes Section 105 of the Travancore Code of Civil Procedure. (Section 141 of the Indian Code), applicable and the 6th clause provides for an appeal. The 7th clause enacts that there shall be no second appeal. Matters coming u/s 47 (1). CPC and within the second part of the definition of ''decree'' in Section 2 (2) can be made the subject-matter of an application u/s 15. But for the provisions contained in the aforesaid clauses of Section 15, the orders passed on such a matter would be decrees within the meaning of the definition and as such subject to appeal and second appeal under the CPC Even such matters are, however, taken out of the operation of the ordinary rules of the CPC and brought u/s 105 with special provisions regarding one appeal without a second.

The second kind of relief that is granted by the Act is to a debtor owing at least one debt incurred before 23-5-1112. See - ''1947 Trav L R 563 (Z15)'' and - ''C. R. P. No. 490 of 1125 (Trav-C) (Z16)''. But in respect of all his debts whether inaurred before, on or after that date the manner of relief granted is by securing to him a fourth of his assets subject to a maximum of Rs. 3,000/- including his residential house wherever possible, and constituting himself and all his unsecured creditors co-owners of his assets, the quantum of the share of the debtor being as-aforesaid and the shares of the unsecured creditors being in proportion to the quantum of their claims subject to the payment of the paramount cnarges and the satisfaction of the claims of secured creditors. The debtor is given an option to approach the Court for this kind of relief. The idea would appear to be to secure the debtor prompt immunity from liability and the enjoyment of his share.

The provisions contained in Section 17 (2) regarding issue of notices of the application by Anchal or Post is for securing quick service as the ordinary mode of service under the CPC would take a longer time. Along with the application the debtor should leave all his assets in the control of the Court and he has to await the determination of the amount of the claims against him and the settlement of his liabilities by distributing the assets among himself and his creditors, to get his share as Section 19 envisages but one distribution. The debtor cannot claim that he be given his one-fourth or Rs. 3,000/- forthwith or in the first instance leaving the determination of the claims against him and the distribution of the remaining assets among the claimants to be made by the Court afterwards.

The procedure prescribed in the Insolvency Act is directed to be applied in the determination of the admissibility and amount of the claims. Under the Insolvency Act the mode of proof of claims is by affidavits. All these provisions alike indicate the intention of the Legislature for as speedy a disposal of the matter as possible. The Court to which all the debtor''s assets are surrendered holds them on behalf of the debtor and, his creditors, to be distributed among them That Court is directed to determine the amount of the claims and of any question raised in the case.

The resort to the Court by a debtor u/s 16 need not necessarily be on account of the insufficiency of his assets to discharge his liabilities, that is to say, it need not be, in every case, on account of pauperism that resort to an application u/s 16 is made by a debtor. He may have enough property but not cash to pay up his debts. The intervention of the presiding officer of a civil Court would facilitate an amicable and speedy settlement of debts. It may be for that reason that the Legislature directed resort to Court. The presiding officer may therefore be regarded as a sort of arbitrator holding properties pending distribution among the various sharers according to his. decision. The position of the presiding officer in this case would appear to be like that of the presiding officer of the Court u/s 10 of the Madras Religious Endowments Act, 1863, dealing with which the Privy Council said in - ''11 Mad 26 (PC) (F)'', a case already cited, as follows:

In the opinion of their Lordships the tenth section places the right of appointing a member of the committee in the Civil Court not as a matter of ordinary civil jurisdiction, but because the officer who constitutes the Civil Court is sure to be one of weight and authority, and with the best means of knowing the movements of local opinion and feeling and one can hardly imagine a case in which it would be more desirable that the discretion should be exercised by a person acquainted with the district and with all the surroundings. The exercise of the discretion being so placed in the District Judge, their Lordships are unable to find anything in the tenth section which confers a right of appeal.

If the position of the Munsiff or the Judge presiding over the Court before which the application u/s 16 is presented is, as aforesaid, then the absence of a provision for appeal is appropriate. Even the limited right of appeal that is given to orders made u/s 15 is not given to orders made on an application u/s 16. An application u/s 16 may raise questions of execution, discharge and satisfaction of a decree arising between the judgment-debtor and the decree-holder. Clause (1) of Section 47 may nevertheless not be attracted because, the question is not being considered by the Court executing the decree. The substance of the matter, however, is there and yet no right of appeal is conferred. The proceeding started u/s 16 approximates to an interpleader suit under Order 35 of the CPC The applicant has no claim except for his share and he is not concerned as to between whom the remaining assets are distributed. He is not interested in that matter.

A distribution of the remaining assets between the creditors ascertained u/s 18 would absolve him from all liability until the date of the application. It would be as though he is given an order of absolute discharge by an insolvency Court which would secure him his person free, with the additional advantage here of getting a share of his assets also free from liabilities. Questions of importance involving large sums might arise and it might have been proper if a right of appeal be given to the party aggrieved. It might be a case of ''casus omissus''. If so, the remedy lies with the Legislature and it is beyond the competence of the Court to legislate in the guise of interpreting the provisions of a statute. It appears rather that the Legislature did not provide for an appeal deliberately, with a view to secure a speedy settlement of debts. This is the conclusion reached by a reference to the scheme of the Act.

In - ''Attorney General v. Sillem'' (1863-64) 10 HLC 705 (Z17), where the question arose regarding the jurisdiction of the Court of Exchequer, which had the power to regulate the "process, practice, and mode of pleading" under the 26th section of the Queen''s Remembrancer''s Act, (22 and 23 "Vict. C. 21) and to provide for a right of appeal by Rules, the Lord Chancellor (Lord Westbury) in his speech stated as follows:

The creation of a new right of appeal is plainly an act which requires legislative authority. The Court from which the appeal is given, and the Court to which it is given, must both be bound, and that must be the act of some higher power. (at p. 720)

Referring to the scheme of the Act as also to the Common Law Procedure Act of 1854, the Lord Chancellor observed thus:

Suits therefore between the Crown and the subject on the revenue side of the Exchequer are by these express enactments put on the same tooting with respect to proceedings in error as suits between subject and subject in the Courts of common law, with the exception only of the right of appeal from interlocutory orders given by the 34th and 35th Sections of the Act of 1854. It is difficult to resist the impression that these last-mentioned rights of appeal were intentionally omitted by the Legislature as not being expedient in revenue cases; but it is much more difficult to accept the proposition of the Crown that these rights were left by the Legislature to be conferred or not, at the pleasure of the Chief Baron and two or more Barons of the Court of Exchequer. These improbabilities and difficulties must of course yield to any enactment expressly declaring that such is the intention of the Legislature, but they are of sufficient weight to render it necessary that the, language of such alleged enactment shall be clear and unequivocal, and not admit of any other reasonable construction. (at pp. 722 and 723).

The intention of the Legislature was gathered from the scheme and purpose of the particular Act. See - ''AIR 1930 PC 227 (V)'', already cited.

The conclusion to which all the aforesaid considerations converge is that orders on applications presented by a debtor u/s 16 are not appealable whichever be the stage, at which the orders are passed, whatever be the nature of the questions involved, and whoever be the persons between whom the questions arise. This is the view taken by the erstwhile Travancore High Court in - ''21 Trav LT 506 (A)'', as also by this . Court in - ''1950 (5) Dom LR 419 and in - ''1951,(6) Dom LR 416'', though those decisions do not contain any lengthy discussion of'' the question.

The Travancore Debt Relief Act was passed In the year 1116, after which 12 years have now elapsed and when it is found that the view taken in -- ''21 Trav LT 506 (A)'', within six years of the Act was not merely not seriously canvassed hitherto but on the other hand in the two cases that came up before this Court, learned Counsel readily agreed to convert the appeals preferred by them into revisions, is perhaps confirmatory of the conclusion reached herein against the appealability of orders on applications u/s 16. The situation created by Section 16 is ''suigeneris''.

The debtor is given the liberty to decide his rights and those of his creditors as well. If the debtor chooses to present an application properly u/s 16, there is an automatic statutory conversion of all his assets into co-ownership property to be held by the Court and liable to be distributed by it among the co-owners who are the Petitioner-debtor, and his unsecured creditors, subject to the payment of the paramount liabilities and the satisfaction of the claims of secured creditors u/s 19.

The Petitioner invites the Court to regard the application u/s 16 as a suit, the determination of questions arising therein as a decree, and to regard that determination appealable as a decree under the provisions of the CPC If the invitation is accepted and an application u/s 16 be regarded as a suit, the following among Ors. would be the result.

(1)The consequence of a proper presentation of an application by a debtor u/s 16 being, as already stated to statutorily convert the assets of the debtor into co-ownership property of himself and of all his unsecured creditors, the rights of the latter under the ordinary law to pursue their remedies by a suit and/or execution of a decree and recover the moneys due are extinguished and in their stead is substituted a right to get a distributive share in the assets of the debtor. These parties would have a decree extinguishing their existing rights and creating new rights instead, without anything done or any order passed by the Court.

(2)The applicant-debtor would be a plaintifl who is ordinarily the ''dominus litis'' without a right to withdraw his suit. When on presentation of the application which is to be regarded as a suit, rights are created in favour of the Respondents, the application cannot therefore be withdrawn. Every Plaintiff under the CPC has an absolute right to withdraw his plaint though he may subject himself to liability for the costs and render Anr. suit for the same relief incompetent. But withdraw he can and the Court cannot reject the prayer for withdrawal. (Order 23, Rules 1 and 2). See - ''Thuppan Namboothiri v. Suryanarayana'' 1123 Cochin LR 680 (Z18). Permission of the Court is needed only if the Plaintiff desires to reserve liberty to bring Anr. .

(3) There will be a Defendant or Defendants without a right to defend. The main purpose of, and the object sought by, an application u/s 16 is to obtain immunity for the debtor personally and for a part of his property from the ordinary process of the law available to his creditors for the recovery of debts. This immunity is obtained at the choice of the debtor by properly presenting an application u/s 16 which serves to extinguish all the debtor''s liabilities and the rights of creditors in lieu of which they get a right to share in the assets of the debtor.

There is no defence possible in this regard as the conversion of the debtor''s assets into co-ownership property, the consequent extinction of the ordinary rights of the creditors & the liability of the debtor arise automatically on presentation of the application. The notice of action, that is the summons, in the. so-called suit would be not an invitation to come and defend on a particular day or else the case will be dealt with in their absence but an intimation that their rights have been lost and new rights created instead. This consequence rises even, before the Respondents have even notice about the presentation of the petition.

These features appurtenant to and arising out of an application u/s 16 are inconsistent with and obnoxious to the provisions of the CPC relating to suits. It would, therefore, apart from other reasons, appear to be improper, nay impossible, to regard an application u/s 16 as a suit under the Code of Civil Procedure.

A special situation is brought into existence by the statute and special provisions are made to deal with that situation, albeit the ordinary civil Court is entrusted with it. The jurisdiction of the Court that is invoked in this regard is not therefore the ordinary civil jurisdiction of the Court but a special jurisdiction wherein the Court has to hold the properties, determine the qraality and quantum of interest of the several parties therein, and distribute the assets to the various sharers according to their rights as determined by it.

It is not merely persons who are parties eonomine on record or constructively so under Order 1, Rule 8 of the Code of Civil Procedure. or some other law under which one or more persons may represent the Ors. , that are bound; but, apart from any right to represent, the distribution of the assets before which, by notification, claims cf creditors are called for, would bind not merely persons to whom assets are distributed but also those who might in response to the notice have appeared and claimed but failed to do so. No fresh claim at their instance is permitted. (See Kissondas Premchand Vs. Jivatlal Pratapshi and Co., a case of an administration suit). This is Anr. feature which is foreign to suits under the CPC except cases of judgments in rem to which other considerations apply.

The Petitioner relied upon the decision in ''Balram Sinp;h v. Dudh Nath'' AIR 1949 All 100 (Z19). That was a case under the United Provinces Agriculturists'' Relief Act and the question that arose was whether there could be a reference to arbitration of a matter under Chapter 3 of the Act. Malik, C. J. reached the conclusion in favour of the reference on various considerations including the one that though Section 89, CPC contemplates a reference to arbitration only in suits, in the absence of a definition of the word ''suit'' either in the CPC or in the General Clauses Act, proceedings under the Agriculturists'' Relief Act could be brought within the ambit "of that expression.

Bind Basni Prasad, J. who was the other party to the judgment referred to Section 27, U.P. Agriculturists'' Relief Act, 1934, which provides that:

The provisions in the Code of Civil Procedure, 1908, in regard to suits shall be followed, so far as they can be made applicable, to all proceedings under this chapter, and all orders passed under this chapter shall be executed in the manner prescribed for execution of Civil Court decrees.

and remarked that

it applies the entire Code to proceedings u/s 12 except only in so far as the provisions of the Code may be inconsistent with the provisions of the Agriculturists'' Relief Act. As already shown above, there is nothing in the Act inconsistent with the provisions of the Code so far as the provisions in respect of arbitration are concerned.

The learned Judge opined that this was conclusive on the point raised in the revision which they were considering. The teamed Judge''s.view appears to be correct and if so, the other considerations referred to by Malik, C. J. are unnecessary for the decision and they are mere obiter.

The judgment of the District Judge expressing the view that the appeal presented before him was incompetent is, therefore, right and the petition for its revision should be dismissed with costs.

Sankaran, J.

The main question for decision in this revision petition is whether the parties to an application filed u/s 16, Travancore Debt Relief Act (Act 2 of 1116, as amended by Act 3 of 1116) have a right of appeal against orders passed under Sections 18 and 19 on such applications by the Court entertaining such applications. Debt Relief Petition No. 2 of 1121 on the file of the Ettumanoor District. Munsiff''s Court is such an application filed by the debtor who is the first Respondent in this Revision Petition. Counter Petitioners 1 to 6 in the Debt Relief Petition are stated to be the creditors to whom money is due from the debtor-Petitioner. The second of, these; c counter-Petitioners is the revision Petitioner in this Court.

He questioned the sustainability of the debtor''s petition on several grounds, the more important of them being that the debts stated to be due to counter-Petitioners 1 and 3 to 6 are not real debts, but are only fictitious ones, not entitled to be recognised and provided for and that all the assets of the debtor have not been disclosed by him and surrendered to the Court, as required by Section 16 of the Act. These contentions were repelled by the first Court which passed an order allowing the petition and directing distribution of 3/4 of the assets as shown in the petition among counter-Petitioners 1 to 6, after setting apart the remaining 1/4 to the debtor himself free of all encumbrances.

It was also directed that the 1st counter-Petitioner, who was found to be a secured debtor, will have priority over the Ors. and that only after satisfying his claim in full, the balance amount that may be available out of the assets will be ''pro rata'' distributed among the other counter- Petitioners. Against that order the second counter-Petitioner filed A.S. No. 255 of 1123 fore the lower appellate Court. That Court disk- missed the appeal as unsustainable for the reason that there is no provision in the Debt Relief Act authorising the entertainment of such an appeal. The Appellant-2nd counter-Petitioner has preferred this Revision Petition against the lower Court''s order dismissing the appeal and he has. challenged the correctness of the view taken by that Court that no appeal lies against the first Court''s order on the debtor''s petition.

In view of the fact that the question raised is an important question of law affecting quite a large number of petitions which have already been filed under the Debt Relief Act, the Division Bench before which the Revision Petition came up for hearing has referred this case for decision by a Full Bench after a definite pronouncement'' on the question already adverted to. Accordingly the Revision Petition has come up before this Full Bench.

Clause (1) of Section 16, Debt Relief Act confers a right on an individual debtor who is unable to pay his debts under the foregoing provisions of the Act to present an application to the Court within whose jurisdiction he resides or ordinarilly carries on business, for a full settlement of his debts. Clause (2) states that every such application shall be in writing and shall be signed by the applicant and verified in the manner prescribed by the CPC (Travancore 1100), for signing and verifying plaints. Clause (3) specifies the particulars to be stated in the application. Section 17 of the Act makes provision for the filing of the application in Court and for the service of notice of the application on the opposite parties. Section 18 empowers the Court to take all the steps necessary for a determination of the admissibility or the amount of the several claims that may be put forward by the creditors. Section 19 prescribes the mode in which the assets of the debtor have to be distributed after settling his liabilities.

Section 20 states that all alienations made by the debtor during the pendency of an application u/s 16 shall be void as against every creditor to whom a debt was due on the date of the presentation of the application. Section 21 empowers the Court to stay execution of any decree against the applicant or his properties during the pendency of an application u/s 16. These are the only express provisions contained in the Act in relation to an application u/s 16. There is no provision in the Act expressly conferring a right of appeal against an order passed on an application filed u/s 16. There is also nothing in the Act indicating that if''such a right is otherwise available it has been taken away.

It is argued on behalf of the Respondent that the Debt Relief Act is a special statute and that a special Court has been created under it for exercising the jurisdiction conferred under it and that therefore there can be no right of appeal against the orders passed by such special Courts unless specially provided for in the Act itself. The position contended for by him would have to prevail if the assumption made by him that a special Court or tribunal has been created by the Debt Relief Act for exercising the jurisdiction conferred by it, is sustainable. But the relevant provisions of the Act are clearly against the sustainability of such an assumption.

The earlier portion of the Act contains provisions regarding the discharge of debts by payments in instalments under Sections 8 and 9. In the Explanation to Clause (5) of Section 9 it is stated that the Court to deal with that matter shall be Court competent to entertain a suit for the recovery of such debts. Coming to the next part dealing with a settlement of the liabilities of the debtor under Sections 16 to 19 also, the jurisdiction has been expressly conferred on the ordinary civil Courts of the land. In Clause (4) of Section 16 it is stated that "the Court for the purposes of this section shall be the District Munsiff''s Court if the total of the debt does not ex- ceed Rs. 2000/- and in all other cases the District Court". In view of these provisions, it cannot be said that any special Court or tribunal has been created for exercising the jurisdiction conferred by the Debt Relief Act. On the other hand, such additional jurisdiction also has been conferred on the ordinary civil Courts.

The next aspect to be considered is whether the exercise by ordinary civil Courts of the special jurisdiction vested in them by the Debt Relief Act, is regulated by the general law, i.e., by the Code of Civil Procedure, or whether the exercise of such special jurisdiction is regulated exclusively by the provisions of the special statute, The general rule is that all suits and proceedings before a civil Court are regulated by the procedure as laid down in the Code of Civil Procedure.

This is also made clear by the express provisions contained in Section 12, Travancore-Cochin Civil Courts Act (Act 22 of 1951). It is stated that the jurisdiction of a District Judge, of a Suberdinate Judge and of a District Munsiff extends, subject to the rules contained in the Code of Civil Procedure, to all original suits and proceedings of a civil nature. The jurisdiction of the Distract, Munsiff has been restricted to the pecuniary limit(sic) specified in the Act. This jurisdiction will fog available to all Courts, unless otherwise exempled(sic) in particular cases by the provisions of special(sic) statutes that may be enacted from time to time. This idea is indicated by Section 9 of the Code of ''Civil Procedure which lays down that "the Courts shall (subject to the provisions herein contained) ''have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred". It is further.. laid down in Section 141 of the Code that "the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. There is nothing in the Debt Relief Act to suggest that the provisions of the Code of Civil Prorat-l dure are made inapplicable to the proceeding contemplated by the Act.

On the other hand, there are provisions indicating a contrary intention. Clause 4 of Section 16 of the Act states that a proceeding under the section shall for purposes of inquiry and disposal be deemed to be a proceeding to which Section 105 of the Code of Civil Procedure, 1100, (corresponding to Section 141 of the Indian Code) applies. Coming to Section 16 itself, there is the express provision m Clause (2) that every application shall be ia writing and shall be signed by the applicant ami verified in the manner prescribed by the CPC for signing and verifying plainte. In respect of certain matters alone a special procedure other than that prescribed by the Code at CPC is prescribed by the Debt Relief Act. One such special procedure relates to ttei maimer in which notice of an application u/s 16 is to be served on the opposite party. By Clause (2) of Section 17 it is directed that the notice of the order fixing the date for appearance tor hearing of the application u/s 16 shall be served by registered anchal or post acknowledgment due, as well as in such other manner if m prescribed, to all parties to the proceedings. 1W this extent a modification is made in the rules prescribed under Order 5, Code Civil Procedure for the service of summons and notices. In the matter (r)f determination of the admissibility and amount of the claims as contemplated by Section 8 of the Debt Relief Act, a special procedure has been directed to be followed.

It is stated in that section that the procedure prescribed in the Travancore Insolvency Act shall ''mutatis mutandis'' be applicable to such proceedings i.e., to proceedings to the determination of the admissibility and the amount of the claims u/s 8. Under the Insolvency Act also there is no total exclusion of the procedure prescribed by the Code of Civil Procedure. The special procedure prescribed under the Insolvency Act is only made to qualify and supplement the general procedure prescribed by the Code of Civil Procedure. Section 5 of the Insolvency Act states that.

Subject to the provisions of this Act, the Couit, in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction.

The same rule is to govern the proceedings under the Debt Relief Act also, particularly in view of the fact that the special procedure to be followed has been expressly made mention of in Sections. 17 and 18 and the general procedure is indicated by Clause (2) of Section 16 and Clause (4) of Section 15. Thus it is clear that except to the extent of the special procedure indicated in Sections. 17and 18, the provisions of the CPC are to govern proceedings under the Debt Relief Act. This view is perfectly in consonance with the rule that the general law of procedure as contained in the CPC is applicable to all proceedings before the ordinary civil Courts of the land.

The law on this point has been laid down by Lord Haldane in - ''1913 AC 546 (G);in the following words:

When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decision likewise attaches.

This principle has been affirmed and followed by the Judicial Committee of the Privy Council in a series of casts. In - ''AIR 1916 PC 21 (I)'', the question that had to be decided was that where the Madras Forest Act (Act 5 of 1882) provided only for an appeal to the District Court against the decision of the Forest Settlement Officer, the party aggrieved by the decision of the District Judge had any further right of appeal. The Privy Council answered the,question in the affirmative and pointed out that when an appeal has been preferred to the District Court against the decision of the Forest Settlement Officer, a District Court is appealed to as one of the ordinary Courts of the country, with. regard to whose procedure, orders and decrees, the ordinary rules of the CPC apply. The earlier decision of the Board in-''40 Cal 21 (PC) (E)'', which appears to lay down a contrary proposition, was also explained and distinguished in this case by pointing out that the proceedings in the Rangoon case were from beginning to end ostensibly and actually arbitration proceedings and hence the decision in that case cannot be taken to lay down any general proposition of law.

In - AIR 1934 81 (Privy Council) the dictum laid down in - ''AIR 1916 PC 21 (I)'', was followed and. it was again ruled that when a right of appeal is given to any ordinary civil Court of the country, the procedure, orders and decrees of that Court will be governed by the ordinary rules of the CPC and that a second appeal as provided in the Code is competent.

A similar question again arose for consideration In - AIR 1936 93 (Privy Council) ''. That was a case which arose under the Punjab Sikh Gurdwaras Act (Act 8 of 1925) which contained provision only for first appeal to the High Court. The Privy Council rules that the provisions of the CPC with reference to appeals to His Majesty apply to the decrees of the High Court and as such there was a right of appeal to the Privy Council against such decrees. No doubt in all these cases there was a provision for one appeal and the question considered was whether the right of a second appeal would not be available in the absence: of a specific provision to that effect in the special statutes concerned.

All the same it is seen from the decisions of these cases that in upholding the availability of the right of a further appeal the principle that was followed is that if the ordinary Courts of.the country are seized of a dispute it would require speolflo(sic) limitation to exclude the ordinary.

Incidents(sic) of litigation and that in the absence ''of any specific limitation, the proceedings, orders and decrees of such ordinary Courts will be governed by the ordinary rules of the Code of Civil Procedure.

To the same effect the decision by a Full Bench of the Madras High Court in - Chikkanna Chettiar alias V.S. Nanjappa Chettiar Vs. V.S. Perumal Chettiar and Another, ;The principle underlying these decisions was further amplified and explained in the still later decision of the Privy Council in - AIR 1948 12 (Privy Council) ;where it was expressly ruled that

Where a legal right is in dispute, and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules ''notwithstanding that the legal right'' claimed arises under a special statute which does not in terms confer a right of appeal.

53 On behalf of the Revision Petitioner it is contended that the question raised in this revision petition is fully covered by the decision of the Judicial Committee of the Privy Council .in - AIR 1948 12 (Privy Council) . Before proceeding to examine this question in detail, the more ambi- tious contention urged on behalf of the revision Petitioner that the general right of appeal conferred by Section 77, Travancore Insolvency Act (corresponding to Section 75, Provincial Insolvency Act) is also available to the parties to a petition filed u/s 16, Debt Relief Act may be disposed of. In support of this contention it is pointed out that Section 18 of the Debt Relief Act makes the procedure prescribed by the Travancore Insolvency Act applicable to proceedings in relation to the determination of the admissibility and amount of the several claims against the debtor.

No doubt Section 77 of the Insolvency Act states that the debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made by the High Court under the provisions of the Insolvency Act may appeal to the High Court and the decision or order shall for purposes of the appeal be deemed to be a decree of the Court passed in the exercise of its original civil jurisdiction. This right is undoubtedly a very much larger right than the right of appeal conferred by Section 96, CPC u/s 77 of. the Insolvency Act all decisions and orders passed under that Act are made appealable. This general right could be availed of by the parties to aa application u/s 16 of the Debt Relief Act only if the provisions of the Insolvency Act had been bodily made applicable to proceedings In relation to an application .under Section 16. But what is stated in Section 18 of the Debt Relief Act is that "the procedure prescribed in the Travancore Insolvency Act shall ''mutatis mutandis'' be applicable" to proceedings for the determination of the admissibility and amount of the several claims; It is thus clear that only for that specified limited purpose the procedure prescribed by the Travancore Insolvency Act has been made applicable ''mutatis mutandis''. Such being the limited scope'' of the applicability of the provisions of the Insolvency Act to proceedings in respect of Section 16 of the Debt Relief Act, it cannot be said that the general right of appeal conferred by Section 77 of the Insolvency Act can be invoked in respect of orders passed in proceedings u/s 16 of the Debt Relief Act. Section 77 of the Insolvency Act cannot therefore come to the aid of the Petitioner in support of his contention that he has a right of appeal against the order passed in this case by the first Court.

It now remains to be seen how far a right of appeal allowed by the general law as embodied in the CPC can be availed of by the parties to an application u/s 16 of the Debt Relief Act. This question has to be considered in the light of the rule as laid down in - AIR 1948 12 (Privy Council) According to this decision the conditions to be satisfied for attracting the provision in the CPC regarding the right of appeal to a party are (1) there must have been a legal right in dispute, (2) an ordinary civil Court of the country must have become seized of such dispute, (3) such Court must generally be governed by the ordinary rules of procedure as prescribed by the CPC and (4) an appeal against the decision relating to such dispute must be authorised by such rules.

So far as the present case is concerned there was dispute between the parties as to the existence and validity of the debts alleged to be due to counter-Petitioners 1 and 3 to 6 in the first Court. The Court seized of such dispute was the District Munsiff''s Court which is undoubtedly an ordinary civil Court. The Court is governed by the rules contained in the Code of Civil Procedure. It has also been found that except to the limited extent specified in Sections. 17 and 18 of the Debt Relief Act, the Court in dealing with an application u/s 16 of the Act was governed by the ordinary rules as contained in the CPC in the matter of dealing with that application. The provision for appeal is contained in Section 96 of the Code which runs as follows:

Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

In Clause (2) of Section 2 of the Code the word ''decren'' has been defined as follows:

''Decree'' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

Even though reference is made in this definition to matters in controversy in the suit, the word ''suit'' itself has not been defined in the Code.

In Section 26 of the Code it is stated that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. The particulars to be contained in a plaint are specified in Rule 1 of Order 7 of the Code. Even if it is to be taken that the suit referred '' to in the definition of the word ''decree'' should satisfy these requirements, it is clear that an application u/s 16 of the Debt Relief Act would come under the category of suits. As already pointed out, there is the express provision in Clause (2) of the section that every such application shall be in writing and shall be signed by the applicant and verified in the manner prescribed by the CPC for signing and verifying plaints. Rule 6 of the rules framed under the Act has made provision for the levy of the Court-fee due on such an application, at the rate specified in that rule.

It has also to be pointed out that the word suit has been used in defining a ''decree'' in a wide and general sense so as to include within its scope all civil proceedings before a civil Court. This is the view taken in - A. Mahalinga Kudumban and Others Vs. Theetharappa Mudaliar, where it was ruled as follows:

When there is a litigation in Court in which the civil rights of parties are determined, such litigation, though not called a suit, yet is a civil proceeding and as the CPC is made applicable to such proceedings, unless the right of appeal given under the CPC is taken away expressly, it cannot be held that the right of appeal does not exist.

It was further pointed out that a decision by a Court in such a civil proceeding will be a decree within the meaning of Section 2 Clause (2) of the Code so as to attract Section 96 providing for an appeal against a decree. In - ''AIR 1936 Madras 778 (FB) (Z7)''. it was held that an application u/s 7 of the Presidency Towns Insolvency Act was equivalent to a suit. In - Chikkanna Chettiar alias V.S. Nanjappa Chettiar Vs. V.S. Perumal Chettiar and Another, , also it was held that references under the Land Acquisition Act would come under the category of suits and the decisions in such references would amount to decrees appealable u/s 96 of the Code of Civil Procedure.

In - ''AIR 1949 All 100 (Z19) the question whether an application u/s 12, U.P. Agriculturists'' Relief Act can be deemed to be a suit arose for consideration and it was ruled that the expression ''in such other manner as may be prescribed'' used in Section 26, CPC is wide enough to include such an application and that the proceedings u/s 12, U.P. Agriculturists'' Relief Act is a proceeding in a suit before a civil Court. Tested in the light of the principle underlying these decisions also, it is clear that an application u/s 16, Debt Relief Act would amount to a suit. In the present case the rights of the parties in respect of the existence of the debts to be satisfied out of the assets of the debtor Petitioner were undoubtedly in controversy and by the decision of the Court such rights were conclusively determined by that Court. That decision was a formal expression of an adjudication determining the rights of the parties in respect of the matters which were in controversy in the proceeding in question. The decision is one which vitally affected the rights of. all the parties to the proceeding. Thus the decision satisfies all the elements of a decree as defined in the CPC and as such the right of appeal provided by Section 96 of the Code is available to the party aggrieved by such decision. Since the decision was by the District Munsiff, the appeal lay to the District Court having the appellate jurisdiction over the Munsiff''s Court and as such the appeal filed before the lower appellate Court was competent.

The facts of the present case are similar to those in the case reported in - AIR 1948 12 (Privy Council) That case arose out of certain orders passed on an application filed u/s 19 of the Madras Agriculturists'' Relief Act (Act 4 of 1938) for a declaration that the decree debt in that case was wholly discharged by virtue of Section 8 of that Act. By an order passed on 9-2-1939 the Subordinate Judge held that the applicant was not an agriculturist as defined in the Act and was not therefore entitled to a scaling down of the debt u/s 8. The applicant filed an appeal against that order to the High Court of Madras.

A Full Bench of that Court held that an order passed under the Madras Agriculturists'' Relief Act was not appealable. Vide - A.S. Nagappa Chettiar and Another Vs. Annapoorani Achi alias Karuppayi Achi and Another, This decision was reversed by the Privy Council in - AIR 1948 12 (Privy Council) and in examining the correctness of the view taken by the Madras High Court that the appeal was incompetent, the Privy Council observed as follows, in paragraph 8 of the report:

The question therefore to be considered in the present case is whether a right of appeal from the orders in question was conferred by the Code of Civil Procedure. The order of 9th February 1939 was not made in execution proceedings but it was made in a suit and, in their Lordships'' opinion, it amounted to the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, namely, whether the judgment-debtor was an agriculturist and entitled therefore'' to have his debt discharged or reduced under the Act. In their Lordships'' opinion the order was a decree within the meaning of Section 2 (2), CPC and an appeal lay u/s 96 of the Code.

It is stated in Rule 10, Madras Agriculturists'' Relief Act that the Courts having jurisdiction under these rules shall be the Courts which would have jurisdiction to entertain suits for the recovery of the debts as unsealed. It was by virtue of this provision that the application was filed u/s 19 of the Act. Rule 3 of the rules framed under that Act contains a provision similar to that contained in Clause (2) of Section 16 of the Debt Relief Act. Rule 3 states that every application under Rule 2 shall be in writing and shail be signed and verified in the manner prescribed by the Code of Civil Procedure, 1908, for signing and verifying plaints.

It was after a due consideration of the significance of all these provisions in the Madras Agriculturists'' Relief Act and also the rules framed under that Act that it was ruled that an appeal lay against the order dated 9th February 1939, passed on the debtor''s application and the rule was enunciated in the following terms:

The true rule is that where a legal right is in. dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.

On behalf of the Respondent an attempt was made to extinguish this ruling on the ground that it arose out of proceedings in execution of a decree. No such distinction is passible because the application in question was entertained and disposed of by the Court in the exercise of its original jurisdiction as contemplated by the Agriculturists Relief Act itself. It was also expressly pointed out by their Lordships of the ''Privy Council that the order of 9th February 1939 was not made in execution proceedings, but was made in a suit.

Another argument advanced on behalf of the Respondent is that the ruling in - AIR 1948 12 (Privy Council) , has to be confined to the facts of that case, and in support of that position the ruling in - (1940) 8 ITR 635 (Privy Council) , was relied on. In the latter case it has been laid down as follows:

Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions, which may be found there are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found.

Even by following this rule, there can be no doubt that the decision in - AIR 1948 12 (Privy Council) can be made applicable to cases where the facts are similar or at least analogous.

The principles laid down in - AIR 1948 12 (Privy Council) were accepted and followed in - S.A. Seshadri Ayyangar Vs. A. Narayana Nair, while considering the appealability of an prder passed under the Madras Nonresidential Buildings Control Order, 1945, which did not expressly provide for an appeal against such orders. It is also clear that the dictum laid down in - AIR 1948 12 (Privy Council) ; is meant to govern cases of that category. As already stated, the facts of the present case are such that the rule laid down in - ''Adaikappa v. Chandra- sekhara (H)'' can undoubtedly be made applicable to it.

The question of the appealability of orders passed in an application u/s 16 of the Debt Relief Act incidentally arose for consideration in - ''V.M. Itticheriya v. Chacko Ouseph'' 1950-5 Dom LR (TC) 419 and in -''Raghavan v. Mathew'' 1951 Dom LR (TC) 416. In both these cases the question was not discussed at length and a decision'' given. On the other hand, it was assumed that no appeal lay against such orders and accordingly the appeals were treated as revision petitions. In - ''21 Trav LT 506 (A)'', also this question came up for consideration and there it was ruled that such orders are not appealable. It was pointed out in that decision that a right of appeal is not to be assumed in every matter which comes before a Court, such rights must be given by Statute or by some authority equivalent to a statute. This principle so far as it goes is not open to objection.

But it has to be pointed out that the error committed in - ''21 Trav LT 506 (A)'', was in the application of this principle. The principle is that a right of appeal must be given by statute or by some authority equivalent to a statute. This does not mean that the right of appeal must be given by the special statute itself that Is under consideration. It is enough if such right is available under the General Law which may govern the matter at hand.

This view gains strength from the ruling of the Privy Council in - ''11 Mad 26 (F)''. There also it was pointed out that it is not to be assumed that there is a right of appeal in every matter which comes under the consideration of a Judge; such rights must be given by enacted law or equivalent authority. On a consideration of the facte of that case, it was found that the order in question was not made appfealable by the provisions of the Religious Endowments Act under which it was passed. It was further found that the proceedings in that case were not governed by tlie provisions of the Code of Civil Procedure.

Accordingly it was ruled as follows:

Neither that Act, nor the general law, gives any right of appeal, which therefore does not . exist, from such an order.

It follows, therefore, that it is sufficient if the general law applicable to particular proceedings;: makes provision for an appeal even though, the special statute does not provide for any such appeal. The provision for appeal under the general law will under. such circumstances be sufficient to sustain an appeal unless such right is expressly Excluded by the provisions of the special statute. So far as proceedings u/s 16 of the Debt Relief Act are concerned, there has been no such exclusion of the right of appeal available under the general law as contained in the Code of Civil Procedure. On the other hand, it is seen that to respect of proceedings u/s 15 of the Act the Legislature thought it fit to provide only for a first appeal against orders passed under that Section. Accordingly it was expressly stated in Clause (7) of Section 15 that

there shall be no second appeal against any order passed by the appellate Court or authority under Sub-section (6).

Thus on a consideration of all the aspects of the question, I am definitely of opinion that the general right of appeal provided u/s 98 of the CPC is available to the parties to proceedings u/s 16 of the Debt Relief Act and that orders passed in respect of such proceedings are appealable under that section. That is my answer to the question referred to the Full Bench.

In view of the above answer given to the question referred to the Full Bench, it is clear that the lower appellate Court was wrong in dismissing A.S. 255 of 1123 on its file on the ground that the appeal is incompetent. The revision petition is therefore allowed and the lower appellate Court is directed to re-admit the appeal to its file and to hear and dispose of it on its merits. In the circumstances of this case, there will be no order as to costs. Before pronouncing this judgment in open Court, I have had the advantage of reading through the judgment of my learned brother, Subramania Iyer, J. in which he has taken a contrary view on the question referred to the Full Bench. In that view my learned brother, Govinda Filial, J., has concurred. Normally I should have been disinclined to add to the judgment which I had already prepared and finalised. But in this particular instance, I feel that it is necessary to make a few observations on certain points dealt with by Subramonia Iyer, J, In the course of the exhaustive review of the case law dealing with the conditions required for attracting the provision contained in Section 96, Civil P. C., he has come to the conclusion that the earlier decisions laying down that decision given by an ordinary civil Court in the exercise of the Jurisdiction conferred on it by special statutes in respect of contentious proceedings commenced by means of applications of references made under such special statutes would also amount to decrees as contemplated by Section 96, Code of Civil Procedure., can no longer be held to be good law in view of the ruling of the Supreme Court in - Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, According to my learned brother, all the decisions which have taken the view that a preference made to a civil Court under the Land Acquisition Act could be regarded as a suit and " s decision given thereon as a decree within the meaning of Clause (2) of Section 2, CPC " stand impliedly overruled by the decision of the Supreme Court in - ''AIR 1953 SO 33 (Z12)''.

On carefully going through that decision, I do not find anything in it to support this view. In that case the Supreme Court had no occasion to consider the question whether a reference made under the Land Acquisition Act or an application flied under other statutes conferring a special jurisdiction on the ordinary civil Courts to decide the questions raised in such reference or application, could be deemed to be a suit and the decision thereon could be deemed to be a decree so as to attract Section 96 of the Code, and naturally therefore the Supreme Court has not given any decision on this question. The only point that was considered and decided 4 was whether the decision given by the Court on a question of title involved in a land acquisition reference would operate as res judicata when the same question of title is raised in a subsequent suit between the same parties. That question was answered, in the affirmative and in doing so the decisions, of the Privy Council in - ''AIR 1922 PC 80 (P) and AIR 1939 133 (Privy Council) '', were approved and followed.

Incidentally it was observed that the District Judge when exercising the powers of a Court under the Land Acquisition Act, in that capacity; is not entitled to try a regular suit and his jurisdiction under the Land Acquisition Act is quite different from the jurisdiction which he exercises- on the regular civil side. All the same it has not been held that the decision given by the District Judge in the exercise of his jurisdiction under the Land Acquisition Act would not have the force of a decree. On the other hand, the ruling in - ''AIR 1922 PC 80 (P)'', to the effect that the decision given by the Court in the exercise of its jurisdiction under the Land Acquisition Act amount to a decree which will operate as res judicata in a subsequent suit between the same parties, is seen to have been approved by the Supreme Court.

Thus the implication, if at all, is in favour of the view that even apart from a regular suit, as contemplated by the Code of Civil Procedure, there could be contentious civil proceedings before such Courts and the decision given by the Courts in such proceedings would also amount to ''decree'' as defined in Clause (2) of Section 2 CPC and that the right of appeal conferred by Section 96 of the Code attaches to such decrees also.

The decision to that effect reaffirmed in Chikkanna Chettiar alias V.S. Nanjappa Chettiar Vs. V.S. Perumal Chettiar and Another, '', cannot, therefore, be deemed to have been expressly or even impliedly overruled by the Supreme Court. The rulings in - ''AIR 1916 PC 21 (I)''; - AIR 1936 93 (Privy Council) ''; - AIR 1948 12 (Privy Council) ; - ''AIR 1949 All 100 (Z19)'' and in - S.A. Seshadri Ayyangar Vs. A. Narayana Nair, '', which held that the decisions given by the Courts in contentious proceedings started by applications filed under special statutes like the Madras Forests Act, Punjab Sikh Gurdwaras Act, Madras Agriculturists'' Relief Act, the U.P. Agriculturists'' Relief Act and the Madras Buildings Rent Control Order, could be held to be decrees which could be appealed against u/s 96, Code of Civil Procedure., hold the field even now and such decisions have to be accepted as laying down the correct law.

As already pointed out by me, an application u/s 16 of the Debt Relief Act stands on a much stronger footing. Excepting for the fact that such an application is not called a suit, it satisfied all the conceived requirements of a suit, as contemplated by the Code of Civil Procedure. As required by Clause (2) of Section 16 of the Debt Relief Act, an application under that section has to be in writing and it shall be signed and verified in the manner prescribed by the CPC for signing and verifying plaints. The requisite Court-fee is also levied on such an application. The contentious matters raised in that application are decided by the Court by its order on that application. When all these essential requirements of a suit and a decree are satisfied by an application u/s 16 of the Debt Relief Act and by the order thereon, there is no justification for holding that the order would not amount to a decree attracting the provision contained in Section 96, Code of Civil Procedure., on account of the mere accidental circumstance that the application is not expressly styled a suit.

With all respect to my learned brother Subramonia Iyer, J., I feel that in the course of his judgment he has dealt with certain other questions which, according to me, are not strictly relevant to the question before this Full Bench. I do not wish to commit myself to the opinion expressed by him on such questions. I reserve my opinion on those questions for a more appropriate occasion.

Govinda Pillai, J.

I had the benefit of perusing the orders proposed by Sankaran and Subramonia Iyer JJ., and I agree to the conclusion arrived at by Subramonia Iyer, J.

The question is whether any of the orders passed under Sections 16 to 20, Debt Relief Act 2 of 1116 (Tr.) is appealable. The Debt Relief Act contemplated the mode of discharge of the debts. Sections 8, 9 and 15 contemplated the discharge of the entire debt by instalment payment of a definite percentage of the same. If the debtor was not able to do so then he was given a further discretion to surrender all his properties to the custody of the Court with a prayer for a fair settlement of Iris liabilities and to give back one- fourth of his properties not exceeding Rs. 3000 in value free of all encumbrance. As regards the first mode of discharge, the legislature had provided for an appeal against the orders passed u/s 15 (5) of the Act.

But no such appeal was provided against any order passed under Sections 16 to 20. Section 16 laid down how the application in the case of persons unable to pay their debts under the preceding sections had to be filed. Section 17 directed the Court to fix a date for hearing and how notice of the petition was to be sent. Section 18 provided for the procedure to be followed to determine the admissibility and the amount of each debt. Section 19 laid down how the settlement of the liabilities of the debtor was made and Section 20 as regards the effect of alienations made by the debtor pending application, u/s 16. These provisions by themselves are self-contained and no appeal is provided against any order passed under these sections.

In a similar enactment in Madras, that is, the Madras Agriculturists'' Relief Act 4 of 1938, there was no provision for any appeal against orders passed u/s 19 of that Act. But in - AIR 1948 12 (Privy Council) it was held that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. The rules framed under the Madras Agriculturists'' Relief Act relating to application to civil Courts for scaling down of non-decreed debts, it was provided in Rule 10 that the Courts having jurisdiction under those rules shall be the Courts which would have jurisdiction to entertain suits for recovery of the debts as unsealed.

Thus, without any restriction or qualification, the civil Courts were given complete jurisdiction to dispose of the matters arising in those proceedings. It was by virtue of these provisions that the civil Courts were invested with jurisdiction to try certain matters. Necessarily the CPC had to be applied in the disposal of these matters. Appeals were therefore allowed to be filed against the decisions passed in those cases. That is not the case here mentioned already. The provisions in the Debt Relief Act are self-contained. Since there is no provision for an appeal in the Act I agree to the order proposed by Subramonia Iyer J.

The decision of the Court is that the Civil Revision Petition should be dismissed with Costs.