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Krishna Chandra Deb v. Rajendra Narayan Bhanj Deo And Another
Factual and Procedural Background
This opinion concerns an application for leave to appeal to His Majesty in Council from an order made by the High Court on 7 January 1936 in revision against an order of the Subordinate Judge of Cuttack dated 10 January 1934.
The narrow factual outline given in the opinion is: the respondent, the Raja of Kanika, purchased a certain property in 1931 while a suit brought by the petitioner on 29 March 1930 was pending. A decree in that suit was pronounced in favour of the petitioner in December 1933. An application for execution (delivery of possession) followed. The respondent anticipated that execution by making an application under Order 21, Rule 100 of the Code of Civil Procedure (CPC); that application was dismissed (the petitioner had no notice of it). A subsequent application by the respondent was considered by the Subordinate Judge under Order 21, who indicated the matter should be decided according to principles in Rules 99 or 101 of Order 21 and disposed of the matter in the respondent's favour. The petitioner sought revision in the High Court; the High Court (Saunders, J., with the Chief Justice concurring) refused revision, holding there was no failure of justice and the Subordinate Judge had not acted without jurisdiction.
The present application seeks a certificate and leave to appeal to His Majesty in Council under Section 109 of the CPC (various clauses were invoked by counsel). The High Court judges in the present opinion considered whether the order was a "final order passed on appeal" within Section 109 and whether the case was fit for leave under the clause addressing matters of wide public or great private importance.
Legal Issues Presented
- Whether the order of the High Court in revision is a "final order passed on appeal" within the meaning of Section 109, clause (a) of the Code of Civil Procedure, thus permitting leave to appeal to His Majesty in Council.
- Whether the case is fit for leave to appeal under Section 109, clause (c) — i.e., whether it raises a question of wide public importance or great private importance not susceptible of money valuation.
- Whether an order passed in revision (under Section 115 of the CPC) is of the same character as an order "passed on appeal" for the purposes of granting leave to appeal to His Majesty in Council.
Arguments of the Parties
Appellant's (Petitioner) Arguments
- Mr. P. B. Das, for the petitioner, relied on a decision reported at 13 CLJ 681 and argued that the order under challenge would, in effect, give delivery of possession to the respondent and thus would finally dispose of the rights of the parties.
- The petitioner contended that on that basis the order should be treated as a final order passed on appeal so as to permit leave to appeal to His Majesty in Council under Section 109.
The opinion does not contain a detailed account of the respondent's separate legal argumentation beyond the procedural facts and the Subordinate Judge's and High Court's reasoning noted in the judgment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 13 CLJ 681 (Calcutta High Court) | Used by petitioner (Mookerjee, J.) as authority discussing whether an order is a final order by reference to whether it was made in the appellate jurisdiction of the Court. | The court considered Mookerjee, J.'s test but rejected it as not being the final test; held that being made on the appellate side is not dispositive of being a final order passed on appeal. |
| 47 IA 124 (Privy Council; Lord Cave) | Statement that an order is final if it finally disposes of the rights of the parties. | The court accepted the final-disposition test as to what is a "final order" but distinguished that from whether an order is a final order "passed on appeal". |
| (1891) 1 QB 734; (1903) 1 KB 547; (1916) 2 KB 139 | English authorities treating an order as final if it finally disposes of rights (referred to by Lord Cave and discussed in relation to finality). | Used to support the proposition of what constitutes a "final order" but court observed that finality alone does not make an order one "passed on appeal". |
| 32 Bom 108 (Bombay High Court) | Holds that an order made on an application to admit an appeal after limitation is not an order or decree "passed on appeal". | Adopted as authority that an order may be made on the appellate side without being a final order passed on appeal; used to reject the petitioner's position. |
| 30 Cal 679 | Authority discussed regarding whether an order made by the High Court on an application to review its judgment in a case previously heard by Privy Council is an order made "on appeal". | Referred to in support of the distinction between orders "passed on appeal" and orders "made in the exercise of appellate jurisdiction". |
| 10 WR 1 | Contains reference to the 30 Cal 679 matter and the view that certain review orders are not orders made on appeal within the terms of the Charter. | Used to reinforce the distinction between different formulations (passed on appeal vs. exercised appellate jurisdiction) and to bolster the court's conclusion. |
| 41 Cal 323 | Considered whether the order was a "judgment" within a Letters Patent clause; the opinion in that case referred, in passing, to appellate reviewability under S.115. | The present court noted that the point in 41 Cal 323 was not necessary to decision there and treated that reference as of limited value for the present question. |
| 48 All 226 (Allahabad High Court) | Directly held that an order passed in revision is distinct from an order passed on appeal and does not come within the purview of Section 109 of the CPC. | The court regarded this decision as directly in point and followed its reasoning: revisional orders are not orders passed "on appeal" within Section 109. |
Court's Reasoning and Analysis
The court approached the application by examining the two possible routes under Section 109 of the CPC relied on by the petitioner: (a) that the order is a final order passed on appeal making it appealable under clause (a), and (b) that the case is fit for leave under clause (c) because it raises questions of wide public importance or great private importance.
Step 1 — Clause (c): The court first rejected clause (c). It explicitly held that the case did not raise any question of wide public importance nor any question of great private importance not susceptible of money valuation. The contest was characterized as ultimately turning on a tactical litigation move (the dropping of certain parties), not a question of broad importance.
Step 2 — Final Order Test: The court acknowledged the Privy Council authority (47 IA 124) — the test that an order is final if it finally disposes of rights — and noted that Mr. Das argued the order would, in effect, give delivery of possession to the respondent and thus be final in that sense.
Step 3 — "Passed on Appeal" Distinction: The court then examined whether the order was a final order "passed on appeal." It rejected the approach (attributed to Mookerjee, J. in 13 CLJ 681) of determining finality simply by whether the order was made in the appellate jurisdiction. The court explained that an order may be made on the appellate side without being a final order passed on appeal. The court relied on decisions such as 32 Bom 108 and the authorities discussed in 30 Cal 679 and 10 WR 1 to demonstrate the accepted distinction in prior case law between an order "passed on appeal" and an order made in the exercise of appellate jurisdiction.
Step 4 — Revisional Jurisdiction and Section 115: The court referred to Section 115 of the CPC and emphasized that an order made under Section 115 arises where there is no appeal and that the revisional jurisdiction is distinct in character from appellate jurisdiction. The court cited the Allahabad decision in 48 All 226 as directly supporting the proposition that an order passed in revision is distinct from an order passed on appeal and does not come within Section 109.
Conclusion of Analysis: The court concluded that, although the order might be a final order in the sense of finally disposing of the parties' rights, it was not a final order "passed on appeal." Therefore, the court held it had no jurisdiction to give leave to appeal to His Majesty in Council under Section 109(a) (i.e., the clause for final orders passed on appeal). Having already concluded the case was not fit for leave under clause (c), the application for leave to appeal was refused.
Additional procedural notes recorded in the opinion: Saunders, J.'s judgment (which the present court summarises) had earlier held there was no ground for interference by way of revision unless the order was without jurisdiction or there was a failure of justice; Saunders, J. found neither. Dhavle, J. agreed with the reasoning and outcome.
Holding and Implications
Holding: Application for leave to appeal to His Majesty in Council dismissed.
Direct consequences for the parties:
- The application for a certificate under Section 109 (either clause (a) or clause (c)) was refused.
- The order of the High Court in revision (which had affirmed the Subordinate Judge's disposal in favour of the respondent) stands.
- The petitioner was ordered to pay costs: hearing fee ten gold mohurs (and costs awarded to the respondent as recorded).
Broader legal implication as stated in the opinion:
- The court reiterated and applied a distinction found in prior authorities: an order may be "final" (in that it finally disposes of rights) without being an order "passed on appeal" for the purposes of Section 109. In particular, an order made in revision under Section 115 of the CPC is, by its nature and statutory context, distinct from an order passed on appeal and therefore generally does not qualify for leave to appeal under Section 109(a).
- The court also made clear that absence of wide public importance or great private importance precludes grant of leave under Section 109(c) in this case.
The opinion does not purport to announce a novel rule beyond the application of the distinctions drawn from precedent and Section 115; it resolves the application on the statutory and authority-based grounds set out above.
Wort, A.C.J:— This is an application for leave to appeal to His Majesty in Council from an order made by this Court on 7th January, 1936, in an application in revision against the order of the Subordinate Judge of Cuttack made on 10th January, 1934. It is unnecessary to state elaborately the facts of the case; it is sufficient to say that the respondent (the Raja of Kanika) in this application purchased a certain property in the year 1931, that is during the pendency of a suit brought by the petitioner on 29th March, 1930, in which suit a decree was pronounced in his favour in December 1933.
2. Now there appears to have been an application for execution, that is to say for delivery of possession to the petitioner and this was anticipated by an application by the respondent under O. 21, R. 100 of the CPC. This application, however, it appears was dismissed but on what grounds it is immaterial to state; the fact is that the petitioner had no notice of the application. A subsequent application was made by the respondent, the Raja, after an application had been made and a writ of delivery of possession issued to the petitioner. The learned Subordinate Judge dealt with the matter under O. 21. He expressed himself in these terms:
I think the case should be decided according to the principles laid down in R. 99 or R. 101 of O. 21 of the CPC, although the present miscellaneous case does not strictly fall under either of these rules.
3. I understand him to have meant by those words that the case did not strictly come under O. 21, R. 100 by reason of the fact that possession had not actually been delivered to the petitioner: at any rate that is the meaning attached to it by the parties to this application. Now the learned Judge disposed of the application of the respondent in the respondent's favour, hence the application to this Court in revision. Saunders, J. who delivered the judgment of this Court made this statement:
It is argued that the Raja ought to have-waited until an attempt was made to deliver possession to the petitioner and then to have resisted the delivery of possession, leaving it to the petitioner to make an application under O. 21, R. 97. The Court, however, merely anticipated a situation which would afterwards, arise on the application that presumably would be made by the petitioner under R. 97.
4. The learned Judge then stated that? there was no ground for interference by way of revision unless the order was without jurisdiction or it was the case of a failure of justice. The learned Judge in his judgment, in which the learned Chief Justice concurred, came to the conclusion that there was no cause of any failure of justice, and as I understand the judgment, he came also to the conclusion that the learned Subordinate Judge did not act without jurisdiction.
5. Now the application to this Court is made under Section 109 of the CPC and it is-suggested that it comes either under-sub-cl. (a), S. 109 or sub-cl. (a). Dealing with the latter clause first, I am quite clearly of the opinion that it is not a case in which we should give a certificate of fitness to appeal to His Majesty in Council under Cl. (c), that is to say the most that can be said with regard to the order of the learned Subordinate Judge is that he did in fact anticipate a state of affairs which would have obtained had the writ of delivery of possession been given effect to on behalf of the petitioner. Strictly as the learned Subordinate Judge points out the matter did not come under O. 21, R. 100 of the CPC, but that, in my judgment, would not entitle us to hold that, the case was of such importance that we should give leave to appeal under Cl. (c), S. 109. But it remains to be considered, whether the order of this Court is a final order passed on appeal by the High Court under Cl. (a). Mr. P.B Das, appearing on behalf of the petitioner, has relied upon a decision of the Calcutta High Court in 13 CLJ 681(1). There Mookerjee, J. discussed the question of whether the order there being considered was a final order. As I have already indicated two questions arise: first whether it was a final order and secondly whether it was order passed on appeal. Mookerjee, J. in the course of his judgment appears to take this view that the question is to be determined upon a consideration of the question of whether the order was made in the appellate jurisdiction of the Court. Before dealing with that matter, reference should be made to a decision of their Lordships of the Judicial Committee of the Privy Council in 47 IA 124(2). Their Lordships in that case were considering the question of what was a final order, and Lord Cave, who delivered the opinion of their Lordships of the Judicial Committee of the Privy Council expressed himself in these terms:
The question as to what is a final order was considered by the Court of appeal in (1891) 1 QB 734(3), (1903) 1 KB 547(4) and (1916) 2 KB 139(5). The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties.
6. Mr. Das in this case contends that this order would in effect give delivery of possession to the respondent and thus finally dispose of the rights of the parties. But assuming that to be so for the moment, we have, as I have already stated, to consider the question of whether this order was passed on appeal. I come back to the judgment of Mookerjee, J., in the case reported in 13 CLJ 681. There the learned Judge, as I have already stated, appears to have decided the question on the footing of whether the order was made in the appellate jurisdiction of the Court or on its original side, having stated that Letters Patent nowhere spoke of any revisional jurisdiction in contradistinction to appellate jurisdiction. But with great respect to that very distinguished Judge, it seems to me that the test which the learned Judge was there applying is not a final test in the matter. An order may be made on the appellate side of the Court without its being a final order passed on appeal. In this connexion I propose to refer to a decision of the Bombay High Court in 32 Bom 108(6). There the matter under consideration was an application to admit an appeal after the period of limitation prescribed by the Limitation Act; and it was there decided that an order made on such an application was not an order or decree passed on appeal. Sir Lawrence Jenkins, C.J in the course of his judgment made this observation:
The meaning of the expression ‘passed on appeal’ has been settled by a line of authorities, which it is right that we should follow: see 30 Cal 679(7) and the cases there cited and applying that interpretation to the circumstances of this case, it cannot (in my opinion) be said that there is here a decree passed on appeal by a High Court.
7. The case to which Sir Lawrence Jenkins referred is the case reported in 30 Cal 679. Now reference was made to the case in 10 WR 1(8). This case was referred by Jackson, J. to a Full Bench and the reference was made in these words:
It was held that an order made by the High Court on an application to review its judgment in a case of appeal to the Privy Council previously heard is not an order made on appeal within the terms of Cl. 89 of the Court's Charter, so as to enable the Court to admit an appeal against such order to Her Majesty in Council.
8. In that case Sir Barnes Peacock, C.J drew attention to the language used in the Charter “which is practically identical with that in S. 595 of the Code” and to the difference between words “made or passed on appeal” and “made in exercise of its appellate jurisdiction.” In S. 595 of the Code the language used is “passed on appeal” and not ‘passed in the exercise of its appellate jurisdiction.” In my judgment there is a vast difference between an order made or a judgment passed on the appellate side of a Court and the final order passed on appeal. The latter may be included in the former but the former is necessarily not the same as the latter. Mr. Das in this connexion has referred to a decision of the Calcutta High Court in 41 Cal 323(9). The matter there before the learned Judges was whether the order which was under discussion was a judgment within the meaning of Cl. 15, Letters Patent. They decided it was, but in the course of the judgment reference was made to a matter which is under discussion in this case and there the learned Judge stated that it had been decided in the Calcutta High Court that an appeal lay from an order made under Section 115 of the CPC. With very great respect to that most distinguished Judge the point there was not necessary for the decision but perhaps the value of it is none the less having regard to the fact that the learned Judge there stated that it had been decided in the Calcutta High Court that an order made under S. 115 of the Code was appealable to His Majesty in Council. There is one decision however, a decision of the Allahabad High Court in 48 All 226(10), which is directly in point in this matter. There the effect of the judgment of the learned Judges was this, that an order passed in revision is entirely distinct in its nature from an order passed on appeal and does not come within the purview of Section 109 of the CPC. The learned Judges in deciding that case made this observation:
We are not prepared to take the view that an order passed by this Court in the exercise of its revisional jurisdiction is an order passed ‘on appeal.’ There is a substantial difference between the powers of this Court when exercised in appeal and when exercised in re visional jurisdiction. As was properly pointed out, the jurisdiction of this Court under S. 115 is a discretional jurisdiction and the Court is not bound to interfere even if it is satisfied that an error of law has been committed by the Court below.
9. In this connexion I would make reference to S. 115 itself. In my opinion with great respect to the decision upon which reliance is placed I hold the view that S. 115 is, conclusive of the matter and that an order made under this section can be made only when there is no appeal and it necessarily implies that an order made under the section is not an order made on appeal. S. 115 in my judgment quite clearly distinguishes between an order made under the revisional powers of the Court and an order made on appeal. It is true, as I have already stated and repeat, that an order made under Section 115 of the CPC may well be an order made on the appellate side of the Court but it by no means follows that it is an order on appeal. In my judgment that it is not. I come clearly to the conclusion that although it may be a final order, it was not a final order passed on appeal and therefore we have no jurisdiction to give leave to appeal to His Majesty in Council under S. 109(c). For the reasons which I have already stated, I think also it is not a fit case for appeal to His Majesty in Council. Saunders, J., in delivering the judgment of this Court referred to the fact that there was right of action in the plaintiff under Section 103 of the CPC, although I do not hold that finally decided the matter or that it is a matter which ought to be taken into consideration in coming to a conclusion in the case. For the reasons I have given this case should be rejected. The application for leave to appeal is dismissed with costs; hearing fee ten gold mohurs.
10. Dhavle, J.:— I agree. The course of decision in Calcutta is by no means uniform, and it is impossible to distinguish the case before us from that of 48 All 226. My Lord the Chief Justice has pointed out a further reason for holding that the order under consideration was not an order passed on appeal within the meaning of Cl. (a), Section 109 of the CPC in that the revisional jurisdiction of this Court is only invoked, as S. 115 of the Code expressly provides, in cases where no appeal lies to this Court.
11. As regards Cl. (c), S. 109, it is clear that the case does not raise any question of wide public importance nor any question of great private importance to which it is impossible to give a money value. The contest between the parties seems ultimately to have reduced to the question whether the applicant is to get the better of the other side by reason of the tactical move he adopted in dropping the mortgagee and the objector from his suit.
D.S/R.K
12. Application dismissed.
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