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Shaik Abdul Nabhi Saheb v. Marti Ramalakshmammah
Factual and Procedural Background
The plaintiff (appellant) instituted a suit in the Court of the District Munsiff of Guntur, which was initially dismissed on a preliminary objection without consideration of the merits. On appeal, the learned Subordinate Judge of Guntur set aside that dismissal on 31st January 1947 and remanded the suit for trial. Subsequently, the 7th defendant (respondent) applied for a review of this order before the Subordinate Judge, seeking to set aside the entire previous order and decree directing the suit to be tried. The review application was disposed of on 31st March 1947, with the original order remanding the suit not being interfered with, except for minor textual amendments to the decree's wording. The 7th defendant then filed a second appeal to this Court against the Subordinate Judge’s order directing the trial. Rajamannar, J., granted a stay of the trial pending disposal of the second appeal, which was challenged by the appellant by way of an appeal by leave from that decision.
Legal Issues Presented
- Whether the order of Rajamannar, J., granting a stay of the trial is a "judgment" within the meaning of Clause 15 of the Letters Patent, thus permitting an appeal by leave from that order.
- Whether the appeal pending before this Court is competent given that the Subordinate Judge allowed a review application and passed a fresh decree.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the appeal before this Court was incompetent because after the Subordinate Judge allowed the review application, a fresh decree was passed. Therefore, the proper course was to appeal against the review order and not the earlier decree.
- Reliance was placed on precedents (Vadilal v. Fulchand and Kanhaiya Lal v. Baldeo Prasad) which held that a review resulting in a fresh decree precludes appeal against the original decree, and appeal lies only against the new decree.
Respondent's Arguments
- The respondent argued that the review application was solely aimed at setting aside the earlier order directing the trial and did not seek any other relief.
- The review was effectively dismissed, with only minor and unnecessary textual changes made to the decree, and no fresh or amended decree was on record.
- The order granting stay was a valid "judgment" under Clause 15 of the Letters Patent, permitting appeal by leave.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tuljaram v. Alagappa Chettiar (1910) 21 M.L.J. 1 (F.B.) | Definition of "judgment" under Clause 15 of the Letters Patent includes orders ancillary to the suit that render the judgment effective, such as interim injunctions or receivership. | The Court applied this principle to hold that the stay order by Rajamannar, J., was a "judgment" permitting appeal, as it aimed to render the second appeal judgment effective by preventing unnecessary trial. |
| Vadilal v. Fulchand (1905) I.L.R. 30 Bom. 56 | Where a review application is allowed on merits resulting in a fresh decree, appeal lies only against the fresh decree and not the original. | The Court distinguished this case, holding it not applicable as the review in the present matter was effectively dismissed and no fresh decree was passed. |
| Kanhaiya Lal v. Baldeo Prasad (1905) I.L.R. 28 All. 240 | Appeal lies against a modified decree passed on review, but not against the original decree. | The Court found this precedent inapplicable because no modified decree was passed in the present case, only minor textual changes were made without granting the review relief sought. |
Court's Reasoning and Analysis
The Court first addressed the preliminary objection that no appeal lies against the order of Rajamannar, J., granting a stay. Citing the Full Bench decision in Tuljaram v. Alagappa Chettiar, the Court held that an order ancillary to a suit which aims to render a later judgment effective qualifies as a "judgment" under Clause 15 of the Letters Patent, permitting appeal. The stay order was intended to prevent unnecessary trial if the second appeal succeeded, thus conserving judicial resources and litigants' expenses.
On the merits, the Court examined the review application made by the 7th defendant to the Subordinate Judge. Although the Judge noted minor textual alterations to the decree, these changes were unnecessary and did not constitute a fresh decree. The review application, which sought to set aside the entire order remanding the suit for trial, was effectively dismissed. Therefore, the appeal pending before this Court was competent and correctly filed against the original order. The appellant's reliance on precedents concerning fresh decrees passed on review was found misplaced.
Consequently, the Court upheld the correctness of the order granting the stay and dismissed the appeal with costs.
Holding and Implications
The Court's final decision is DISMISSED WITH COSTS.
The direct effect of this ruling is the affirmation of the stay order granted by Rajamannar, J., thereby allowing the second appeal process to proceed without the suit being tried prematurely. No fresh decree was recognized on review, validating the competence of the appeal by leave before this Court. The decision does not establish any new precedent beyond the application of existing principles concerning the definition of "judgment" under the Letters Patent and the nature of review orders.
1. This is an appeal by leave from the decision of Rajamannar, J., pursuant to Clause 15 of the Letters Patent of this Court.
2. 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.
3. 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.
4. 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.
5. 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.
6. In my view this matter is covered by a decision of a Full Bench of this Court in Tuljaram v. Alagappa Chettiar (1910) 21 M.L.J. 1 : I.L.R. 35 Mad. 1 (F.B.). 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.
7. 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.
8. 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.
9. 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.
10. In support of the contention, reference was made to Vadilal v. Fulchand (1905) I.L.R. 30 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 (1905) I.L.R. 28 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.
11. 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.
12. I agree.
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