Umamaheswaram, J.:— The question that arises for consideration is as to whether an appeal lies under Class 15 of the Letters Patent as against the judgment of Mr. Justice Jaganmohan Reddy in G.M.P No. 7751 of 1951. The appellant herein filed C.M.P No. 7781 of 1961 to excuse the delay in filing an application under Order XLVII Rule 1 C.P.C to review the judgment and decree of Subba Rao C.J and Jaganmohan Reddy J. in Appeal No. 182 of 1953. The learned Judge held that there were no sufficient reasons to excuse the delay in filing the review application, consequently dismissed the application. As against this Judgment of Jaganmohan Reddy, J. the Letters Patent. Appeal is filed to this Court.
2. Two objections were taken by the office as to the maintainability of the appeal. The first objection was that under the provisions of Order XLVII Rule 7 C.P.C the order of the Court rejecting the review application is not appealable. The second objection was that as the order was passed by Jaganmohan Reddy J, under Order XLVII Rule 5 C.P.C on behalf of the Bench of which he was a member, the order is not open to appeal. Having carefully heard the arguments of Sri M. Kesava Rao on behalf of the appellant and Sri T. Veerabhadrayya on behalf of the respondent, we are quite clear that the second objection should prevail. Order XLVII Rule 5 C.P.C runs as follows:
“Where the Judge or Judges or any of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any, of them shall hear the application, and no other Judge or Judges of the Court shall hear the same,”
3. As Subba Rao C.J baa been appointed as a Supreme Court Judge, the application was rightly posted under the terms of Order XLVII Rule 5 C.P.C be fore Jaganmohan Reddy J. Order XLVII Rule 7 C.P.C enacts that an order of the Court rejecting the application shall not be appealable. The order dismissing the application passed by Jaganmohan Reddy J, it on behalf of the Court or the bench that originally beard the appeal. As against the judgment of the Bench or the Court, there can be no further appeal to another Division Bench of this Curt. This view is supported by the decision of the Calcutta High Court in Kailash Chandra Samadar v. Rebati Mohan Ray 21 Cal. W.N 652.. The appeal was originally heard by Mr. Justice Tennon and Mr. Justice Smither, The review application was heard by Mr. Justice Tennon and it was rejected by him sitting alone. As against his judgment, an appeal under clause 15 of the Letters Patent was filed. Mr. Justice Woodrffe delivering the judgment on behalf of the Division Bench held that no appeal lay. The learned Judge observed as follows:—
“The intention of the Legislature was that an application for review should be entertained by the Judges or Judge who heard the case and no one else. If we were to give effect to the argument before us, the result would be this:— It is admitted by the learned vakil who appeared before us that we should be invited to say that Mr. Justice Tennon erred in not granting the application for review, and that he ought to have granted the application and should have made the Rule absoulte. In other words, we should have to consider not merely the judgment of one Judge of this court but the judgment of two Judges of this Court of which review was sought by the application before Mr. Justice Tennon.”
4. Following this judgment, we hold that the appeal is not maintainable under Clause 15 of the Letters Patent to a Division Bench. If the contention of Sri Kesava Rao is accepted, it amounts to this Viz. that we are entitled to review the judgment of another Bench Viz. the judgment pronounced by Subba Rao C.J and Jaganmohan Reddy J. That is what is prohibited under the terms of Order XLVII Rule 5 C.P.C The decision in Anayal purath v. Cheekiladeu Ahmed Indian Cases 204. Maraud Mahi v. Secretary of State 9 Indian Cases 532., J.N Surty v. T.S Chettyar Firm A.I.R 1927 Ran. 20., and In re, Chenna Reddi5 have no bearing on this question. What those decisions lay down is that if the review application is allowed by a single Judge, the appeal should be posted before a Division Bench for being finally disposed of.
5. So far as the first objection that the provisions of Order XLVII Rule 7 C.P.C override the provisions of Clause 15 of the Letters Patent is concerned reliance was placed on the decision of the Madras High Court in Chinnadorai v. Deraisundaram 1954-I M.L.J 100.. It is no doubt a direct decision supporting the contention of Sri Veerabhadrayya. Rajamannar C.J relied on an earlier decision of the Madras High Court in Achaya v. Ratnavelu I.L.R 9. Mad. 253. as supporting this view. Sri Kesava Rao the learned Advocate for the appellant, contended that the decision in Achaya v. Ratnavelu has been over ruled by a Full Bench of the Madras High Court in Chappan v. Moidin Kutti. In the order of reference to the Full Bench, reference is made expressly to the decision in Achaya v. Ratnavelu. The majority view is to the effect that the provisions of Clause 15 of the Letters Patent prevail over the provisions of Section 538 of the Civil Procedure Code. The Full Bench was constituted inasmuch as the learned Judges in Achaya v. R??? did not refer to the direct observations of the Privy Council in Herrish Chunder Chowdary v. Kali Sundari Debi at page 494. The relevant passage is in the following terms.
“It only remains to observe that their Lordships do not think that Section 598 of Act X of 1877, which has the effect of restricting certain appeals, applied to such a case as this where, the appeal is from one of the Judges of the High Court to the Full Court.”
6. The Full Bench decision of the Madras High Court in Chappan v. Moidin Kutti was followed in Paramasivan v. Ramasami. The High Courts of Bombay and Nagpur have taken the view that Clause 15 of the Letter Patent overrides the provisions contained in Section 104 C.P.C Our attention was also drawn to a recent decision of the Supreme Court in Union Of India v. Mohindra Supply Co. , which takes the view that the decision in Achaya v. Ratnavelu is erroneous and that the decision in Chappan v. Moidin Kutti is correct. Having regard to the Privy Council decision in Hurrith Chunder Chowdary v. Kali Sundari Debi the Supreme Court decision in Union Of India v. Mohindra Supply Co. and the Full Bench decision in Chappan v. Moidin Kutti the decision of the Madras High Court in Chinnadorai v. Doraisundaram requires reconsideration.
7. The decision in Ram prasad v. Dagdulal directly arose under the provisions of Order XLVII Rule 7 G.P.G and is opposed to the view taken in Chinnadorai v. Doraisundaram. As we uphold objection No. 2 and hold that no appeal lies, we feel it unnecessary to refer the question in this case to a Full Bench as to whether the decision in Chinnadorai v. Doraisundaram on which reliance is placed by Sri T. Veerabhdrayya, requires reconsideration.
8. In the result, we uphold the objection of the office that the appeal is not maintainable.
9. Appeal held not maintainable.