- Bookmark
- Share
- CaseIQ
Champamani Bibi And Another v. Mohammad Yunus And Others
Structured Summary of the Opinion (D.Hs — Application for Leave under Section 110 CPC)
Factual and Procedural Background
This is an application by the decree-holders (referred to as "D.Hs") for leave to appeal to the Supreme Court from an appellate order dated 5-8-1948 of the Patna High Court which reversed the trial Court's decision and dismissed the application for execution of a mortgage decree as barred by limitation.
The leave application was filed on 4-10-1948 and therefore is governed by Section 110 of the Civil Procedure Code (as the Constitution of 1950 had not yet come into force). The original mortgage suit was instituted in 1916 and was valued at Rs. 5,783/12/6 at the time of institution. A final mortgage decree in appeal was passed by this Court on 21-9-1938 for Rs. 67,247/4/9. The appellate order now challenged held execution of that decree to be time-barred.
The immediate procedural question before the Court was whether the statutory value requirements in Section 110 CPC were satisfied so as to permit leave to appeal to the Supreme Court. The Court ultimately dismissed the application (without costs) because the value of the suit at institution did not meet the Rs. 10,000 threshold required by Section 110.
Legal Issues Presented
- Whether the requirements of Section 110 of the Civil Procedure Code as to pecuniary value are satisfied in this case so as to grant leave to appeal to the Supreme Court.
- Whether the second paragraph of Section 110 CPC (the clause permitting appeal where the decree or final order involves directly or indirectly some claim or question respecting property of like amount or value) can be read independently of the first paragraph, or must be read subject to the first paragraph's requirement that the subject-matter of the suit in the court of first instance be Rs. 10,000 or upwards.
- Whether the first paragraph of Section 110 applies to appeals arising out of execution proceedings (i.e., whether an appeal out of an execution proceeding can rely solely on the second paragraph).
Arguments of the Parties
Petitioners' Argument (as advanced by Mr. D. N. Verma)
- Mr. D. N. Verma contended that the first paragraph of Section 110 applies to appeals that arise out of suits, and does not apply to appeals which arise out of execution proceedings.
- Consequently, he argued that an appeal arising from an execution proceeding should be governed by the second paragraph of Section 110 (the clause concerning a decree or final order that involves directly or indirectly some claim or question respecting property of like amount or value), and should not be subject to the first paragraph's requirement that the original suit itself be valued at Rs. 10,000 or upwards.
The opinion contains no detailed account of contrary oral submissions from an opposing counsel in the body of the text; the Court's discussion principally considers statutory construction and precedents.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Motichand v. Ganga Prasad Singh, 29 IA 40 | Authority that the first paragraph's two conditions must both be fulfilled; the word "and" means "and" (not "or"). | Cited to support the conclusion that both value conditions in paragraph one of S.110 must be satisfied and that paragraph two cannot be read independently to circumvent paragraph one. |
| Mangamma v. Mahalakshmamma, 57 IA 56 | Privy Council approval that both conditions in the first paragraph must be separately fulfilled; supports reading paragraph two subject to paragraph one. | Relied on to show earlier high authority for treating paragraph two as not independent of paragraph one. |
| Rajendra Kumar v. Rash Behari, AIR (18) 1931 PC 125 | Privy Council case confirming that the value of the subject-matter of the suit at institution must meet the Rs.10,000 threshold. | Used to demonstrate that even where a High Court had certified S.110 requirements, the Privy Council refused to entertain appeal for failure of the original suit's value. |
| A. V. Subramania Aiyar v. Sellammal, 39 Mad 843 | Held that if paragraph two were read independently, paragraph one would become nugatory; rejected allowing leave merely because the appeal value exceeded Rs.10,000 by addition of mesne profits. | Quoted and approved by higher authorities; used as principal Madras authority supporting reading paragraph two subject to paragraph one. |
| Satibaladasi v. Chotanagpur Banking Association Ltd., 27 Pat 237 | Followed A.V. Subramania Aiyar: rejected taking decretal amount (including post-litem interest) as satisfying S.110 where initial suit value was below Rs.10,000. | Invoked to support uniform view of this Court that the first paragraph's requirement cannot be bypassed by appeal valuation. |
| Ishwari Prasad Singh v. Kameshwar Singh, AIR (28) 1941 Pat 288 | Took a contrary view: leave was granted where suit and appeal value were below Rs.10,000 but the value of the property exceeded Rs.10,000; Privy Council not shown earlier authorities. | The opinion notes this decision as a contrary local view and explains contextual differences (earlier authorities were apparently not cited to Privy Council in that matter). |
| Nadir Hussain v. Municipal Board, Agra, ILR (1937) All 405 | Mentioned in connection with Ishwari Prasad Singh judgment; the appeal was later dismissed on merits and no objection to certificate was raised before Privy Council. | Referred to as the only case called in that judgment; the Court examined original records to note that the Privy Council ultimately dismissed the appeal on merits. |
| Bashir Md. Khan v. Md. K. A. Khan, AIR (35) 1948 Pat 372 | Patna High Court granted leave apparently on the basis of the second paragraph; Supreme Court overruled preliminary objection and allowed appeal on merits, observing the suit and appeal involved indirectly an amount exceeding Rs.10,000. | Considered as a recent example where leave was granted and the Supreme Court treated the matter as involving >Rs.10,000, not as an exclusive second-paragraph case. |
| Nurul Absar v. Haripada Biswas, 50 CWN 255 (Calcutta) | Held that a decree affecting the management of shares outside the subject-matter of the suit could be said to involve property in aggregate exceeding Rs.10,000 and thus come within paragraph two. | Referred to by the Patna Court and noted as difficult to reconcile with Privy Council authority; used to illustrate divergence in approach where courts have inferred that decree's effect on outside property may bring case within paragraph two. |
| Shevantibai v. Janardhan Raghunath, 71 IA 142 (Privy Council) | Privy Council refused contention that a question as to a plaintiff's share becomes a question respecting the whole joint estate merely because a successful claim would partition the estate; reserved whether paragraph two can refer to property outside the suit. | Quoted for the proposition that establishing title to a share does not automatically convert the dispute into one respecting the whole estate; the Court used it to show Privy Council's caution in reading paragraph two expansively. |
| Maung Thwe v. A. L. A. R. Chetty Firm, AIR (10) 1923 Rang 71 | Privy Council held paragraph two cannot be read independently of paragraph one; second para is an alternative to the second restriction in the earlier part of section; interpret to give effect to all provisions. | Adopted and expressly agreed with by the Court as authoritative support for reading paragraph two subject to paragraph one. |
| Gossain Bhaunath Gir v. Bihari Lai, 4 Pat LJ 415 | Execution proceeding: Court required that the subject-matter of the suit and the dispute on appeal be of Rs.10,000 or upwards; a judgment-debtor valuing his interest below Rs.10,000 meant leave was refused. | Relied on to reject the petitioners' contention that paragraph one does not apply to appeals arising out of execution proceedings; used as a direct answer to that argument. |
| Canada Sugar Refining Co. Ltd. v. The Queen, (1898) AC 735 | Statutory interpretation principle: clauses must be read in context so as to avoid rendering any clause superfluous; avoid literal construction leading to absurdity. | Cited by the concurring judge to support the approach of construing paragraph two in light of paragraph one to avoid repugnancy or making provisions nugatory. |
| The Queen v. The Bishop of Oxford, (1879) 4 QB 245 | Same interpretive principle as above—read statutory clauses in context and avoid constructions that produce inconsistency. | Used by the concurring judge to reinforce the interpretive methodology adopted in this judgment. |
Court's Reasoning and Analysis
The Court's reasoning proceeds in a structured sequence, limited to the arguments and authorities presented in the opinion:
- Governing law and procedural posture: Because the application for leave was filed before the Constitution of 1950 took effect, Section 110 CPC governs the matter. The relevant text contains two initial paragraphs (value requirements) separated by the word "or", followed by a third paragraph requiring a substantial question of law where the impugned order affirms the decision below.
- Construction of Section 110: The Court examined whether the second paragraph is an independent alternative to the first paragraph. At first glance the paragraphs might appear independent; however, the Court concluded, after analysis and reference to authority, that the second paragraph must be read subject to the first paragraph. Reading the second paragraph independently would render the first paragraph's requirement (that the subject-matter of the suit in the first instance be Rs.10,000 or upwards) nugatory.
- Precedent analysis: The Court relied on a body of authorities (including Privy Council rulings and High Court decisions) that uniformly support the requirement that the first paragraph's conditions be fulfilled. It analyzed contrary decisions and explained contextual reasons why those decisions do not govern here (for example, the absence of citation of earlier authorities to the Privy Council, or the Supreme Court having treated the case as involving the requisite amount).
-
Application to execution proceedings: The Court considered the petitioners' contention that paragraph one applies only to appeals arising out of suits and not to appeals from execution proceedings, and that appeals from execution proceedings should be governed by paragraph two alone. The Court rejected that contention for several reasons:
- Paragraph two itself refers to "decree or final order" and therefore applies to appeals arising out of suits as well as execution proceedings; but it must still be read subject to paragraph one.
- Reading paragraph two independently for execution appeals would produce an inconsistent and impermissible result (paragraph one would be rendered a dead letter in one class of appeals but not another).
- The Court relied on the decision in Gossain Bhaunath Gir v. Bihari Lai (an execution proceeding) where the Court required compliance with paragraph one, demonstrating that execution proceedings are not exempt from paragraph one requirements.
- Definition of "suit": The Court rejected the suggestion that an execution application should be treated as a "suit" for the purpose of paragraph one by broad dictionary definition. It relied on procedural provisions of the Code (Sections 26 and Order IV, Rule 1, and Order XXI dealing with execution) to conclude that execution applications are distinct from suits and so a special construction was not warranted to alter the operation of Section 110.
- Factual application: The Court applied the statutory test to the facts of the case. The original suit's valuation was Rs. 5,783/12/6, which is below the Rs. 10,000 threshold required by paragraph one of S.110. Because that first requirement was not fulfilled, the application for leave to appeal must be dismissed.
- Relief and related matters: The Court dismissed the application but ordered dismissal without costs in the specific circumstances. The Court also stated that the same order governs a related Supreme Court Appeal No. 70 of 1948 arising out of the same judgment insofar as it set aside the trial court's order allowing review.
- Concurrence and interpretive reinforcement: The concurring judge (Lakshmikanta Jha, C.J.) agreed and emphasized established interpretive rules—statutory clauses must be construed so as to give effect to each provision and avoid constructions rendering any clause superfluous—to support reading paragraph two as only an alternative to the second part of paragraph one.
Holding and Implications
Holding: APPLICATION DISMISSED
The Court held that the requirements of Section 110 CPC as to pecuniary value were not satisfied because the value of the suit at the date of institution (Rs. 5,783/12/6) was below the statutory threshold of Rs. 10,000. Accordingly, leave to appeal to the Supreme Court was refused and the application dismissed, but in the circumstances without costs. The order also governs Supreme Court Appeal No. 70 of 1948 insofar as it arises from the same judgment.
Implications:
- The direct effect is that the decree-holders are not granted leave to appeal to the Supreme Court in this matter because the statutory precondition (first paragraph of S.110) is not met.
- The decision reiterates and applies existing precedent on the construction of Section 110 CPC, affirming that paragraph two must be read subject to paragraph one and cannot be used to bypass the original-suit value requirement.
- The Court did not purport to create a new broad precedent expanding paragraph two; rather, it followed prior Privy Council and High Court authorities to construe Section 110 consistently. The opinion contains no statement that it establishes a novel rule beyond applying established authorities and interpretive principles.
Additional procedural note: The concurring opinion by Lakshmikanta Jha, C.J., expressly endorsed the interpretive approach and agreed with the order dismissing the application.
Chatterji, J.:— This is an application by the D.Hs for leave to appeal to the Supreme Court from an appellate order dated 5-8-1948, of this Court which reversed the decision of the trial Court & dismissed the application for execution of a mortgage decree as barred by time.
2. The application for leave to appeal was filed on 4-10-1948, that is, before the Constitution of 1950 came into force & will, therefore, be governed by Section 110 of the CPC. This section provides:
“In each of the cases mentioned in Cls. (a) & (b) of S. 109, the amount or value of the subject matter of the suit in the Court of first instance must be ten thousand rupees or upwards, & the amount or value of the subject-matter in dispute on appeal to His Majesty in Council must be the same sum or upwards,
or the decree or final, order must involve-directly or indirectly, some claim or question to or respecting property of like amount or value,
& where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law.”
The words “His Majesty in Council” must now be read as “The Supreme Court”.
3. The order sought to be appealed from being one of reversal, the only question for consideration is whether the requirements of S. 110 as to value are satisfied. The original-mortgage suit which was instituted as far back as in 1916 was valued at Rs. 5,783/12/6 but the final mortgage decree which was passed in appeal by this Court on 21-9-1938, was for Rs. 67,247/4/9. The execution of this decree was held to be barred by limitation by the order of this Court now sought to be appealed from. The amount or value of the subject matter in dispute on appeal, therefore, is considerably over Rs. 10,000/-. The provisions of S. 110 as to value are-contained in the first two paragraphs. The two paragraphs are separated by the word ‘or’, & upon a plain grammatical construction, they appear, at first sight, to be independent of each other; in other words, the second para appears to be an alternative to the whole of the first. But on a closer examination, the true position seems to be otherwise, as I will presently snow.
4. The first para imposes two conditions (1) as to the value of the subject-matter of the suit & (2) as to value of the subject-matter in dispute on appeal. Both these conditions must be fulfilled, as held by their Lordships of the Privy Council in ‘Motichand v. Ganga Prasad Singh’, 29 IA 40; ‘Mangamma v. Mahalakshmamma’, 57 IA 56 & ‘Rajendra Kumar v. Rash Behari’, AIR (18) 1931 PC 125. In these cases their Lordships pointed out that the word “and” meant “and” & not “or”, so that each of the two conditions had to be separately fulfilled. With regard to the last case, it may be further mentioned that though the High Court had granted a certificate that the requirements of S. 110 were fulfilled, the Board, on the preliminary objection taken by the respondent, refused to entertain the appeal on the ground that the value of the subject matter of the suit, at the date of its institution, was below Rs. 10,000/- &, therefore, the requirements of S. 110 were not fulfilled.
5. The question then arises whether the second para, can be read independently of the first, in other words, whether it is an alternative to the whole of the first paragraph. In the second para, the words ‘involve directly’ are wide enough to cover the actual subject matter in dispute. If, therefore, this para, is taken to be independent of the first, the result will be that an appeal will lie to the Supreme Court, subject, of course to the provisions of the third para, of the section, in every case where the value of the subject-matter in dispute on appeal is not less than Rs. 10,000/-, no matter what the value of the subject matter of the suit was. In that case, not only the first condition in the first para, would be rendered wholly nugatory, but this para, itself would have to be treated as a complete superfluity.
6. In ‘A.V Subrammania Aiyar v. Sellammal’, 39 Mad 843, leave to appeal was sought in a case where the value of the subject-matter of the suit in the Court of first instance was below Rs. 10,000/-, but the value of the appeal to His Majesty in Council exceeded that amount by reason of the addition of mesne profits for the period from the institution of the suit to the date of the petition for leave to appeal. It was contended that the case fell within the second para, of S. 110 &, therefore, leave should be granted. This contention was over-ruled in these words:
“If this contention be accepted, a certificate must be granted in any case in which the amount or value of the subject-matter in dispute on appeal to His Majesty in Council is not less than Rs. 10,000/- whether or not the amount or value of the subject-matter of the suit in the Court of the first instance fell below Rs. 10,000/- & this provision becomes wholly nugatory.”
This reasoning was approved by their Lordships of the Privy Council in the case of ‘Mangamma v. Mahalakshmamma’, 57 IA 56, already cited.
7. The same view was taken by this Court in ‘Satibaladasi v. Chotanagpur Banking Association Ltd.’, 27 Pat 237, in which the value of the subject-matter of the suit in the Court of first instance was below Rs. 10,000/-, but the value of the subject matter in dispute on appeal was more than Rs. 10,000/- as there was a mortgage decree including post-litem interest. It was contended that the decretal amount should be taken to be the value for the purpose of the second para, of S. 110. This contention was negatived in these words:
“If this were the proper construction of the section, the first requirement of paragraph 1 would be rendered nugatory.”
The learned Judge followed the aforesaid decisions in ‘A.V Subramania Aiyar v. Sellammal’, 39 Mad 843.
8. A contrary view, however, appears to have been taken by this Court in ‘Ishwari Prasad Singh v. Kameshwar Singh’, AIR (28) 1941 Pat 288, decided by Harries, C.J & Fazl Ali, J. (as he then was). There a suit was brought by the auction-purchasers of the disputed property in execution of a mortgage decree for a declaration that the property could not be attached & sold in execution of the certificate in a certain certificate case. The suit was decreed by the trial Court, but was dismissed on appeal by the High Court. The pltfs. then applied for leave to appeal to His Majesty in Council. The value of the suit as well as of the appeal was Rs. 7693 odd, being the amount for which the certificate was issued. But the value of the property was considerably over Rs. 10,000/-. It was contended on behalf of the petitioner that they were entitled to leave as a matter of right, because the case fell under the second para, of S. 110. Their Lordships acceded to this contention & granted leave. It appears from the report that the said Madras decision in ‘39 Mad 843’, & the ‘Privy Council decision in ‘57 IA 56’, were not brought to their Lordships' notice. The only case referred to in their judgment is ‘Nadir Hussain v. Municipal Board, Agra’, ILR (1937) All 405. We examined the original records of that case & found that the appeal was eventually dismissed on 25-2-1943, by the Privy Council on the merits. Apparently, no objection to the validity of the certificate given by this Court under S. 110 was raised before the Privy Council.
9. Again, in the recent case of ‘Bashir Md. Khan v. Md. K.A Khan*’, AIR (35) 1948 Pat 372, this Court granted leave to appeal apparently, on the basis of the second para, of S. 110. There the suit was brought by one of the heirs of a deceased Mohammadan lady for recovery of his share of the dower due to her which, he alleged, was Rs. 40,000/-. It is not clear from the report as to what the value of the suit was, but on examination of the records of that case, it appears that the suit was valued at Rs. 6,668/8/8, being the pltfs.' share. The trial Court dismissed the suit. On appeal to this Court, it was decreed for Rs. 6666/8/8, being the pltfs. admitted share, on the finding that the dower was Rs. 40,000/-. The principal deft, then applied for leave to appeal to His Majesty in Council. It was contended on his behalf that the decree directly or indirectly involved a claim or question to or respecting property of above Rs. 10,000/- in value. This contention was accepted. Manohar Lall, J., who delivered the judgment to which Mukherji, J. agreed, referred to a large number of cases & at the end followed the view taken by the Calcutta High Court in ‘Nurul Absar v. Haripada Biswas’, 50 CWN 255, which will be presently dealt with. It appears that the leave granted by this Court was challenged, at the hearing of the appeal before the Supreme Court, on the ground that the requirements of Section 110 of the CPC were not satisfied as the value of the appellant's claim was below Rs. 10,000/-. This objection was overruled in these words:
“This matter was fully dealt with by the High Court & we agree with their view that the suit as well as the appeal involves at least indirectly a question relating to an amount exceeding Rs. 10,000.”
Overruling the preliminary objection, their Lordships allowed the appeal on the merits. From the above quoted observation it is apparent that their Lordships did not treat the case as falling exclusively under the second para, of S. 110.
10. In the aforesaid Calcutta case ‘50 CWN 255, there was an estate of which there was a common manager appointed under Section 95 of the Bengal Tenancy Act. The purchaser of a four-anna share in the estate brought a suit against the common manager, impleading all the co-sharers as parties, for recovery of possession of the purchased share on a declaration that the appointment of the common manager was illegal. The suit was valued at Rs. 2,900/-, being the value of the right of the common manager to the four anna share, though it was stated in the plaint that the value of the pltfs. share was Rs. 10,020/-. The trial Court decreed the suit, but on appeal, it was dismissed by the District Court. On second appeal, the High Court restored the decree of the trial Court, holding that the appointment of the common manager was illegal. The deft, then applied for leave to appeal to His Majesty in Council. It was admitted that the value of the right of management of the four anna share claimed by the pltf. could be taken to be about Rs. 2,900/-. The learned Judges, therefore, said:
“The subject of the suit in the Court of first instance & of the appeal to His Majesty in Council is, therefore, below Rs. 10,000/-. So the case does not fulfil the requirements of the first para of Section 110 of the CPC”
Next they proceeded to consider whether the case came within the second para, of S. 110. They were of opinion that the effect of the decree in question was that the deft. could no longer manage as common manager not only the pltf's share, but also the shares of the remaining owners which were outside the subject-matter of the suit, & therefore, the decree directly involved the question of the management of their shares also which were admittedly over Rs. 10,000/- in value. Consequently it was held that the case came within the second para, of S. 110. The value of the subject-matter of the suit being Rs. 2900/- only, it is difficult to reconcile this decision with the Privy Council case in ‘57 IA 56’, cited above. This Privy Council decision was actually referred to by the learned Judges, but they were apparently of the opinion that their Lordships' decision had no reference to the first para, of S. 110. But from the judgment of their Lordships it will appear that they approved the reasons given by the Madras High Court in ‘39 Mad 843’. Both Wallis, C.J & Srinivasa Aiyangar, J., who decided that Madras case, definitely held that if the second para, were to be considered independently of the first, the condition as to the value of the subject-matter of the suit prescribed in the first para, would be wholly nugatory. They further held that “property” in the second para, contemplated property additional to the subject matter in dispute. On this latter point, however, their Lordships of the Privy Council reserved their opinion in the recent case of ‘Shevantibai v. Janardhan Raghunath’, 71 IA 142.
11. The last mentioned Privy Council case ‘71 IA 142’, arose out of a suit brought by an assignee of the share of a member of a joint family for partition of the joint family property. The total value of the joint family property exceeded Rs. 10,000/-, but the value of the pltf's share was about 3,000 only. Both the trial Court & the appellate Court dismissed the claim for partition on the ground of limitation. The pltf. applied for leave to appeal to His Majesty in Council which was refused by the High Court. The pltf., then applied for special leave which was granted, reserving liberty to the respondent to contest it at the hearing of the appeal. When the appeal came up for hearing, the respondent took the preliminary objection that leave to appeal should not have been granted. The appellant, on the other hand, contended that the High Court should have granted leave on the second clause in S. 110, as the decree involved directly or indirectly a question respecting the whole of the joint family property, admittedly of a value exceeding Rs. 10,000/-. Their Lordships rejected this contention in these words:
“It is enough for the purposes of the present case to say that their Lordships feel no doubt that a question as to the title of the pltf. to the share which she claims in the joint property does not become a question respecting the whole of the joint family estate merely because if her title is established it will result in the joint family estate being partitioned.”
Their Lordships also stated
“Their Lordships do not find it necessary to decide whether the words of the second clause in S. 110 can be on their true construction ever refer to any property but that outside the suit.”
Their Lordships, however, made no reference to the requirements of the first para, of S. 110. But from this, it by no means follows that their Lordships intended to hold that the second para, was quite independent of the first, which would be contrary to the view taken in the case in 57 Indian Appeals 56. It is obvious that their Lordships gave reason which, in their opinion, was just necessary to meet the appellant's contention. If their Lordships had accepted the contention, the position, of course, might have been quite different.
12. In ‘Maung Thwe v. A.L.A.R Chetty Firm’, AIR (10) 1923 Rang 71, the value of the subject matter of the suit in the Court of first instance was less than Rs. 10,000/-, but the value of the subject matter in appeal exceeded that amount, as it included the interest which accrued till the date of the decree. The requirements of the first para, of S. 110 were, therefore, not satisfied. It was, however, contended that the case came under the second para. Their Lordships disposed of this contention as follows:
“It is urged that the decree involves, directly or indirectly, some claim or question to or respecting property of like amount or value. In the first place it is claimed that this provision is to be read alone & not subject in any way to the requirements of the first para, of the section. We are quite unable to accept this view. It is based apparently on the spacing & quasi-separation into a separate para. We do not consider that it was intended to make it a separate provision. What the section requires is that the subject-matter in the Court of first instance must be Rs. 10,000/- or upwards, & in addition that the amount or value of the subject-matter on appeal must be the same or the decree must involve, directly or indirectly, some claim or question to or respecting property of like amount or value. This latter provision is to be read as an alternative to the second restriction in the earlier part of the section. To read it otherwise would render the provision as to the value of the subject matter in the Court of first instance a dead letter. It is not open to us so to interpret the section. We are bound so to interpret it that effect may be given to all its provisions if we can reasonably do so.”
Then their Lordships referred to the aforesaid Madras decision in ‘39 Mad 843’. I entirely agree with the view so taken.
13. It, therefore, follows that the second para, of S. 110 cannot be read independently of the first para.
14. Mr. D.N Verma on behalf of the petitioners contends that the first para, is applicable where the appeal arises out of a suit & cannot apply to an appeal which arises out of an execution proceeding. It is said that so far as the matters in controversy in the suit were concerned, they were settled at rest by the decree passed in the suit, & the questions arising in the execution proceeding relate to the execution of the decree & have no relation to the subject-matter of the suit. Consequently, it is contended, an appeal arising out of an execution proceeding will be governed, not by the first, but by the second para. If this contention is to be accepted, it will have to be assumed that though for the purpose of an appeal arising out of a suit, the second para, cannot be read independently of the first, as shown above, still in the case of an appeal arising out of an execution proceeding, it may be taken by itself. Such inconsistent position is not permissible. Further, it will be noticed that there are the words “decree or final order” in the second para. Obviously, therefore, this para, will apply equally to an appeal arising out of a suit as also to an appeal arising out of an execution proceeding. But in either case, it will have to be read subject to the provisions of the first para. It is true that the questions arising in an execution proceeding may have no relation to the matters that were in controversy in the original suit. But for the purpose of S. 110 this is immaterial. The whole object of this section is to fix a pecuniary limit below which there could be no appeal to His Majesty in Council. The section, as it stands, has to be interpreted & effect must be given to all its provisions.
15. In this connection the case of ‘Gossain Bhaunath Gir v. Bihari Lai’, 4 Pat LJ 415, is in point. It arose out of an execution proceeding in which the mortgaged property was sold in execution of a mortgage decree. One of the judgment-debtors who was interested in a share only of the mortgaged property applied for setting aside the sale of the property in which he was interested. His application was dismissed by the trial Court & its decision was affirmed on appeal by this Court. The, J.D then applied for leave to appeal to His Majesty in Council. The judgment was one of affirmance, but before considering the question whether it involved any substantial question of law, as required by the third para, of S. 110, Dawson-Miller, C.J who delivered the judgment (Coutts, J. agreeing) said:
“But before it becomes necessary to consider that question the petitioner must make out that the subject matter of the suit in the court of first instance & the subject matter of the dispute on appeal to His Majesty in Council is of the sum of Rs. 10,000/- or upwards.”
His Lordship then proceeded to consider the question of valuation, & was of opinion that though the mortgaged property sold was over Rs. 10,000 in value, the, J.D, himself valued his interest at Rs. 4000/-. His Lordship, therefore, concluded:
“In the present case I think that the appellant has failed to show that the subject matter of the suit or dispute in appeal is of Rs. 10,000/- or upwards, & this application must be dismissed with costs.”
It thus appears that in his Lordship's view the requirements of the first para of S. 110 were to be satisfied, even though that was a case arising out of an execution proceeding. It is true that the question whether the case could come under the second para of S. 110 was not raised or decided. Nevertheless, their Lordships did consider that the requirements of the first para of S. 110 had to be satisfied. This decision is a complete answer to Mr. Verma's contention that the first para, does not apply to an appeal arising out of an execution proceeding.
16. It has been faintly suggested that a suit, as defined in Wharton's Law Lexicon, includes a petition to court &, therefore, an execution application may be treated as a suit for the purpose of the first para, of S. 110. But having regard to the various provisions of the Code of Civil Procedure, it is not permissible to use the word ‘suit’ in such wide sense. S. 26 of the Code provides:
“Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.”
O. 4, R. 1 of the Code then provides:—
“(1) Every suit shall be instituted by presenting a plaint to the court or such officer as it appoints in this behalf.”
(2) Every plaint shall comply with the rules contained in Orders VI & VII so far as they are applicable.”
The provisions for application for execution which can be found in O. 21 of the Code are quite distinct. Consequently, an execution application can on no account be regarded as a suit.
17. As already stated, the value of the original suit in the present case was Rs. 5783/12/6. Consequently, the first requirement of the first para, of S. 110 is not satisfied. The application, therefore, must be dismissed, but in the circumstances, without costs.
18. This order will govern Supreme Court Appeal No. 70 of 1948 which is also by the D.Hs & arises out of the same judgment of this court, in so far as it set aside the order of the trial court allowing the decree-holders' application for review of its previous order dismissing their application for execution as not maintainable.
19. Lakshmikanta Jha, C.J:— I fully concur in the order proposed.
20. It is a well-settled rule of interpretation that every clause of a statute should be construed with reference to the context & the other clauses of the Act, & so far as possible, no clause, sentence or word should be considered superfluous, void or insignificant: ‘Canada Sugar Refining Co. Ltd. v. The Queen’, ((1898) AC 735 at 741). ‘The Queen v. The Bishop of Oxford’ ((1879) 4 QB 245 at 261). A grammatical & literal construction is, therefore, to be avoided if such construction leads to absurdity, repugnancy, or inconsistency with the rest of the construction. If para. 2 of S. 110 be read independently of para. 1 by adopting a grammatical rule of construction, the provision for the compliance of the first requirement of para. 1 would become nugatory & shall stand repealed by the second clause. An interpretation, therefore, of the second para, ought not to depend on the spacing or punctuation. It is logically proper, & indeed imperative, to construe the second para in the light of the provision of the first para, to avoid repugnancy, & if so construed there is no escape from the conclusion that the second para, is only an alternative to the second part of the first para.
21. With these observations, I entirely agree with the reasons given by my learned brother.
D.R.R
22. Application dismissed.
Alert