Shaik Abdul Nabhi Saheb vs Marti Ramalakshmammah

Frederick William Gentle, C.J.—This is an appeal by leave from the decision of Rajamannar, J., pursuant to Clause 15 of the Letters Patent

of this Court.

The relevant facts can shortly be stated. The plaintiff, appellant here, instituted a suit in the Court of the District Munsiff of Guntur. At the trial, it

was dismissed as being not maintainable on some preliminary objection, the merits not having been considered. That dismissal was set aside upon

appeal by the plaintiff to the learned Subordinate Judge of Guntur who, on the 31st January, 1947, directed the suit to be remanded for disposal

by the learned District Munsiff. Shortly thereafter, the 7th defendant, respondent before us, preferred an application for review to the learned

Subordinate Judge. The grounds of review manifest clearly and unequivocally that the application was for the purpose of setting aside the whole of

the previous order and decree of the Subordinate Judge directing the suit to be tried. No other relief is found to be contained in the application. It

was disposed of by the learned Subordinate Judge on the 31st March, 1947, when the previous order or decree remanding the suit for trial was

not interfered with; but the learned Judge directed two very minor and, I would have thought, entirely unnecessary textual alterations to the wording

of the former decree. In place of the words "" is entitled to "" he directed the word "" can "" to be substituted and the words "" and in the light of the

observations contained herein "" to be deleted from paragraph 8 of his judgment.

In regard to the first alteration, the new wording, it would seem, has identical effect as the old wording. With regard to the second alteration,

whenever the trial Court is directed to hear and determine the suit it does so always having regard to the observations contained in the judgment of

the appellate Court making such a direction. The 7th defendant preferred an appeal to this Court by way of second appeal against the decree and

order of the learned Subordinate Judge directing the District Munsiff to try the suit. In respect of that second appeal an application was made to

Rajamannar, J., to grant a stay of the order of the learned Subordinate Judge so that until disposal of the second appeal, the learned District

Munsiff, would not try the suit on the merits. The learned Judge acceded to the application and granted a stay. It is to be observed that the order,

apart from the questions which are hereafter discussed was perfectly proper. If the appellant 7th defendant in the suit is successful in the second

appeal, then it will be entirely un-necessary for the learned District Munsiff to hear and determine the suit upon its merits and if he does so, in those

circumstances, it would be waste of judicial time and occasion an entirely unnecessary expenditure of litigant''s money.

At the outset a preliminary point was taken on behalf of the 7th defendant-respondent that no appeal lies in the present instance. It was argued

that the order of Rajamannar, J., granting a stay, is not a ""judgment"" within the contem-plation of that word in Clause 15 of the Letters Patent.

Consequently no appeal lies. The relevant wording of the Letters Patent which was added by an amendment made in 1929 is the following:

An appeal shall lie to the said High Court from a judgment of one Judge of the said High Court...made in the exercise of appellate jurisdiction in

respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court.

The application made to Rajamannar, J., was referable to a second appeal then pending before this Court and in dealing with it, there is no

doubt, the learned Judge was exercising appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by the

Subordinate Judge''s Court of Guntur, which is subject to the superintendence of this Court.

In my view this matter is covered by a decision of a Full Bench of this Court in Tuljaram v. Alagappa Chettiar 21 M.L.J. 1 : ILR 35 Mad. 1.

There, Sir Arnold White, C.J., observed at page 7 as follows:

I think, too, an order on an independent proceeding which is ancillary to the suit...but with a view to rendering the judgment effective if obtained,

e.g., an order on an application for an interim injunction, or for the appointment of a receiver is a ""judgment"" within the meaning of the clause.

Later on the same page he observed:

I think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or proceeding and does not

determine any question of right raised in the suit or proceeding.

Here, the order which Rajamannar, J., made was one in an application the subject-matter of which had the view of rendering the judgment

effective if obtained. By judgment, in this case, is meant the judgment in second appeal. If the appellant, the seventh defendant in the suit is

successful, then an investigation of the merits of the suit becomes unnecessary in the District Munsiff''s Court and to that end a stay of the hearing of

the suit would render the judgment effective. For the reasons given, the preliminary objection, in my opinion, should fail.

Now coming to the merits. The sole argument in support of the appeal was this. After the learned Subordinate Judge had delivered judgment

and a decree in accordance with it was passed directing a trial of the suit by the District Munsiff, the 7th defendant made an application to the

learned Subordinate Judge for review; that review was allowed. Consequently, there was a fresh decree passed in the appeal to the learned

Subordinate Judge and, therefore, the present appeal pending in this Court is incompetent and there should have been an appeal against the order

made in review.

In support of the contention, reference was made to Vadilal v. Fulchand ILR (1905) Bom. 56 and particularly to the observations of Sir

Lawrence Jenkins, C.J., at page 60 where it is observed that, in effect, if a review application is heard and is allowed on the merits and the original

decree even may be repeated, nevertheless, there is a new decree and no appeal lies against the earlier decree. The decision in Kanhaiya Lal v.

Baldeo Prasad ILR (1905) All. 240 was also cited; there, upon review of a judgment in appeal, the decree was modified in important particulars

and a new decree was passed and it was held that an appeal lay against the second decree but none against the first. In my opinion those cases are

not in point in the present instance. The review sought one object and one end only, viz., to have set aside the previous decree and order of the

learned Subordinate Judge directing the District Munsiff to hear and determine the suit. There are some five grounds for review each of which was

for the purpose already stated. Ground (e) is in express language and states that the appeal to the learned Subordinate Judge should have been

dismissed. Whilst in his judgment, the learned Judge makes two very minor and it would seem unnecessary textual alterations to the decree, the

prayer sought by the review was not granted. The learned Judge does observe that he allowed the application for review and substituted the words

mentioned in place of the existing words and ordered a deletion but that does not, to my mind, correctly express what in fact took place. What

took place was a dismissal or rejection of the review application but some unasked and unsought and I would add, quite unnecessary, textual

alterations were made to the wording of the original decree. Further it would appear that there is no other decree in the Court and there is no

amended decree on record.

The only ground urged in support of the appeal was the one above mentioned, and its correctness I am unable to accept. In my view, the order

which the learned Judge made was correct and it follows that this appeal should be dismissed with costs.

Bell, J.

I agree.