Whether the jurisdiction exercised by the High Court under Section 622, Civil Procedure Code, is included in the expression “appellate jurisdiction” as used in Section 13 of the High Court Act (24 and 25 Vict. c. 104) and in Section 86 of the Letters Patent of 1866, and (2) Whether the right of appeal given by Section 15 of the Letters Patent against an order passed by a single Judge of the High Court is controlled and limited by Sections 588 and 591; Civil Procedure Code.
Madras High Court
Chakkara Chappan vs Moidin Kutti
Date : 28 October, 1898
JUDGMENT
H.H. Shephard, C.J.
1. The first question is whether any appeal lies under Clause 15 of the Letters Patent from orders passed under the provisions of Section 622 of the Civil Procedure Code. Considering this question with exclusive reference to the language used by the framers of the Letters Patent and the Charter Act, I should have great difficulty in holding that Clause 15, read as it must be with Section 13 of the statute, was intended to give a right of appeal in such matters. In order to hold that orders passed on revision come within the scope of Clause 13 it must be held that they are made by the High Court in the exercise of its appellate jurisdiction. But for the opinion expressed in Allahabad shortly after the passing of the statute and practically acquiesced in by all the High Courts since that time, I should have thought that the power of superintendence conferred on the High Courts by Section 15 of the statute stood quite apart and distinct from their appellate jurisdiction. So that it could not possibly be said that in passing orders of a revisional character the High-Court was exercising its appellate jurisdiction. I hesitate, however, to assert my opinion in contradiction to the opinion hitherto entertained and acted upon by this as well as by the other High Courts, especially when I find that cases have been brought before the Judicial Committee in which the present question might have been but was not raised.
2. Accordingly, I think it must be that the judgment of a single Judge acting under Section 622 of the Code is open to appeal, unless the right of appeal has been taken away by Section 588 of that Code. On that question I entirely agree with Mr. Justice Subrahmania Aiyar. The question is, in my opinion, concluded by authority which it is beyond our province to criticise.
3. The answer which I would give to the question is that, if the order appealed against amounts to a judgment, an appeal against it does lie.
Subrahmania Aiyar, J
4. The first question for consideration is whether the power of revision exercised by this Court under Section 622 of the Code of Civil Procedure is, within the meaning of the High . Courts Act and the Letters Patent constituting this Court, a part of the Court’s appellate jurisdiction.
5. Now, according to Webster’s Dictionary the first meaning in law of the noun appeal is “the removal of a cause or a suit from an inferior to a superior Judge or Court for re-examination or review.” The explanation of the term in Wharton’s Law Lexicon is only different in words. That explanation is ” the removal of a cause from an inferior to a superior Court for the purpose of testing the soundness of the decision of the inferior Court.” And in consonance with this broad meaning of the word, appellate jurisdiction means “the power of a superior Court to review the decision of an inferior Court.” (Ib). Here two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. This has been well put by Story. “The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted and acted upon by some other Court, whose judgments or proceedings are to be revised” (Section 1761, Commentaries on the Constitution of the United States). It was, however, argued that except where the superior Court is called upon to revise a decision of the inferior Court by a party entitled so to set it in motion, the exercise of the power of revision cannot be said to be an exercise of appellate jurisdiction. This argument clearly misses the true point which is intended to be conveyed and is conveyed by the term appellate jurisdiction. That point is the capital distinction between jurisdiction which is original and jurisdiction which is not original, irrespective of the circumstances and conditions in which the latter is to be exercised. Those circumstances and conditions are important, no doubt. But clearly they do not affect the abstract character of the jurisdiction but relate only to its application and practical working. An ‘appellate jurisdiction,’ as pointed out by Story in the passage immediately following that already quoted, “may be exercised in a variety of forms and indeed in any form which the Legislature may choose to prescribe.” Such jurisdiction may be exercisable only in certain specified classes of cases. Its exercise may be claimable by party as a matter of right or only subject to his obtaining the leave of the Court which passed the decision to be appealed against. Again, the power to review or revise may be confined to points of law or may extend to matters of fact also. Clearly legislative provisions as to such matters only lay down some of the limitations under’ which the jurisdiction is allowed to be exercised. Nor are the conditions prescribed by Section 622 for the exercise of the power of revision conferred by it, different in essence from the kind of limitations just above referred to and more commonly imposed by legislature’s on the exercise of appellate functions. But none of such limitations, however much they may circumscribe the exercise of the power, touches, as already remarked, the intrinsic quality of the power itself. Now as Section 622 in question gives in terms to this Court the power to revise decisions of Courts subordinate to it, it follows that the essential criterion of appellate jurisdiction, enunciated in the above quotation, is present in the case of proceedings held by this Court under that Section and that the power exercised in such proceedings is, therefore, a part of the Court’s appellate jurisdiction. It may not be out of place to add that to take the word “appellate” in the sense explained above is not opposed even to ordinary usage. In support of this remark it is perhaps sufficient to refer to the fact that such writers as Sir Frederick Pollock and Professor Maitland speak in their ‘History of English Law’ not only of the “process in error,” but also of the process known as “attaint,” “certification,” “prohibition,” “removal of actions” and “false judgment” as “processes which have about them more or less of an appellate character” (pages 661-665). It is scarcely necessary to say that there is nothing in any portion of the High Courts Act or the Letters Patent inconsistent with the construction put as above on the term ‘appellate jurisdiction,’ On the contrary, there are clear indications in some of the provisions that that is the meaning intended. In Clauses 19, 20 and 21 of the Letters Patent, while laying down what law is to be administered in civil cases by the High Court, its jurisdiction is for that purpose classified into Ordinary Original, Extraordinary Original and Appellate; from which it is clear that all the powers exercisable by the Court that are not included under Original, must come under Appellate jurisdiction–a classification which is adopted and recognised by the Judicial Committee in the case to be referred to hereafter relying on these very clauses.
6. It seems, therefore, to be clear that the term “appellate jurisdiction” is both grammatically and logically wide enough to comprehend the power exercisable under Section 622 referred to.
7. Turning now to the decisions on the point, Queen v. Nyn Sing (2 N. W. P. H. C. R., 117) is a direct authority in favor of the above construction; Morgan, C. J., Ross, Turner and Spankie, JJ., having therein unanimously held that the term “appellate” does include a High Court’s judicial functions as a Court of revison. The only other decision bearing on the point, so far as I am aware, is that of the Judicial Committee in the Bombay case of Navivaboo v. Turner (L. R., 16 I. A. 156). There, Counsel contended that under the High Courts Act and Charter the division of jurisdiction is fourfold, Ordinary Original, Extraordinary Original, Appellate, and those special matters which are the subject of special and separate provisions. Their Lordships, however, held that the last mentioned specially provided matters did not form a distinct head of jurisdiction and the real division is threefold: Ordinary, Extraordinary, and Appellate. This decision seems to go against the view that the power to revise exercisable under Section 622 is not a part of the appellate jurisdiction.
8. The power so to revise may be taken to be, so far as it goes, analogous to the power of superintendence, exercisable by the Court under Section 15 of the statute and under which the Privy Council held in Nilmoni Singh Deo v. Taranath Mukerjee (I. L. R., 9 C., 295), that a High Court is competent to revise certain decisions of the Courts subordinate to it. And the ruling of the Judicial Committee that the classification is threefold implies that the power of superintendence, though specially provided for, being obviously neither Original jurisdiction nor Extraordinary Original jurisdiction, within the meaning of the Statute and the Letters Patent as expounded by the Committee itself in the case cited, must come under the remaining head specified by their Lordships, viz., Appellate jurisdiction. Consequently, the analogous power to revise, exercisable under Section 622, mast likewise come under that head.
9. Before passing to the remaining question, I would briefly notice the suggestion that if the view taken above is correct, the powers of this Court exercisable as a Court of reference, under the chapter of the Civil Procedure Code, in which Section 622 is to be found, should also be held to come under appellate jurisdiction. This I admit, must be conceded. But that there is nothing anomalous in such a conclusion will be evident if the real character of the proceeding on a reference under the chapter is borne in mind. Such a reference is not merely consultative and is, therefore, unlike the case of exparte County Council of Kent and Council of Dover v. exparte County Council of Kent and Council of Sandwich (1891, 1 Q. B., 725); where the Court of Appeal held that, upon the application made to the Court under the Statute there in question, the Court was not even bound to hear the parties concerned, if any; that there was no actual determination of an existing dispute in which a private right was involved; that the application was, consequently, purely consultative and, therefore, that form of procedure did not involve a right of appeal (see also In re-Knight and Tabernacle Permanent Building Society (1892, 2. Q. B., 615). But in the case of references under the Code of Civil Procedure this Court must hear the parties and is expressly empowered to alter, cancel, or set aside any decree or order which the Court making the reference has passed in the case out of which the reference arose and make such order as it thinks fit; the lower Court being bound to give effect to the judgment or order so passed by this Court. Overseers of the Poor of Walsall v. London and North- Western Railway Company (L. R., 4 App. C, 30) is an authority (if authority were necessary with reference to such a plain point) for the view that the decision of this Court on a reference of the kind under consideration is judicial determination of the rights of the parties which, as Lord O’Hagan expressed it in the last mentioned case, is mandatory, or, as Lord Bowen put it in re-Knight and the Tabernacle Building Society, effective, and is, therefore, attended with the ordinary and usual incidents attaching to such determinations.
10. With reference to the remaining question in the case, I have but few observations to make. If I am right in the view that appellate jurisdiction includes revisional powers, it follows that against an order passed under Section 622 an appeal lies if it amounts to a judgment within the meaning of Clause 15 of the Letters Patent cannot be questioned unless the said clause has, as contended before us, been modified by Section 588 of the Code of Civil Procedure. This contention is, however, opposed to the ruling of the Judicial Committee in Hurrishchander Chowdhry v. Kali Sundari Delia (L. R., 10. I. A. 4) in which their Lordships laid down that that Section does not apply to a case such as the present where the appeal is from one of the Judges of the Court to the Full Court. I am unable to persuade myself, as I have already stated on a previous occasion, that the observations of the Committee on the point are mere obiter dicta. The contention that Section 588 modified Clause 15 was not only distinctly raised but was also strongly pressed by Counsel in the argument (Ib, pp. 9 and 10). Their Lordships had, therefore, to give a decision upon the soundness or unsoundness of the contention. That, it appears to me, they did in unmistakable terms.
11. I, therefore, hold that an appeal does lie against an order passed by a single Judge of this Court under Section 622 of the Code of Civil Procedure when such an order is a judgment within the meaning of Clause 15 of the Letters Patent.
Davies, J.
12. The question referred to us is “does an appeal lie from an order passed by a single Judge of the High Court under Section 622 of the Code of Civil Procedure”. The said Section 622 empowers the High Court to pass orders in cases in which no appeal lies when any Civil Court subordinate to it as (1) exercised a jurisdiction not vested in it by law, or (2) has failed to exercise a jurisdiction so vested, or (3) has acted in the exercise of its jurisdiction illegally or with material irregularity. The power exercised by the High Court is, therefore, one exercised in its revisional capacity. The chapter 46 of the Code under which Section 622 appears indeed describes the power as one of revision. Now, under the rules of this Court of the 6th of November 1879, the only order which a single Judge of this Court can pass in relation to the revision of the proceedings of a Civil Court is to admit an application for such revision or to reject it in limine. (vide Rule I Clause 4). When such application has been admitted by a single Judge it must be heard and determined by a Bench of two Judges under Rule II, Clause 3, In the present case the order of a single Judge was not one of admission or rejection but was passed on the merits after hearing the parties.
13. My answer to the reference, therefore, is that an appeal doth lie against the order passed in the present case but on the sole ground that it was passed without jurisdiction, a single Judge not being empowered to pass it and an appeal being the only remedy for cancelling the order which must have full force and effect and be binding on the lower Court so long as it remains uncancelled. But in cases where the order is one admitting or rejecting the application for revision which can be legally passed by a single Judge no appeal under Clause 15 of the Letters Patent in my opinion lies. I consisder that the right of appeal given by-Clause 15 of the Letters Patent from the judgment of one Judge of this Court extends only to, cases falling within the original or appellate jurisdiction of the High Court, and that the phrase “appellate jurisdiction” does not include its revisional jurisdiction under Section 622 of the Code of Civil Procedure.
14. Section 622 of the Civil Procedure Code which may be compared with Section 35 of Act XXIII of 1861, under which a limited power of revision was given to the Sadr Court, may be said to be a development of the provision, contained in Section 15 of the Statute 24 and 25 Vict. c. 104. That Section declares that each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its appellate jurisdiction, and then goes on to give other powers, the power of calling for returns, directing transfer of cases, making rules of practice, and the like. In the original Letters Patent it is clear that orders passed by the High Court in the exercise of its powers of superintendence were not judgments in respect to which an appeal could be brought under Clause 14 of those Letters Patent corresponding to Clause 50 of the amended Letters Patent: because Clause 14 of the Letters Patent of 1862 mentions only judgments in causes of original civil jurisdiction. Clause 15 of the amended Letters is, however, expressed in wider terms. An appeal is given from the judgment “of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 13 of the said recited Act.” This clause and Section 13 of the Statute must therefore be read together. Section 13 of the Statute provides for the exercise of the original or appellate jurisdiction vested in the High Court. Reading the Section with the clause of the Letters Patent it could not have been intended to give an appeal in any matters other than those arising in the exercise of the original or appellate jurisdiction of the High Court. Clause 36 of the Letters Patent when considered with Clause 15 and with Section 13 of the Statute puts the matters in a still clearer light. Clause 36 is founded on Section 13 of the Act and like Clause 15 refers to it expressly. Section 13 having provided for the exercise of the original and appellate jurisdiction by one or more Judges or by Division Courts, Clause 36 declares that “any function which is hereby directed to be performed by the said High Court in the exercise of its original or appellate jurisdiction” may be performed by any Judge or by any Division Court constituted under the provision of the 13th Section of the Act. It goes on to provide that in the event of a difference of opinion among the Judges of a Division Court the opinion of the majority or of the senior Judge shall prevail. This provision is supplemented by that contained in the latter part of Clause 15 which in the case of an equal division of opinion in a Division Court gives the right of appeal to the High Court. It can hardly be doubted that the two clauses thus related to each other and both .expressly referring to Section 13 of the statute refer to the same jurisdiction of the High Court and that, if the provision for a difference of opinion made in Clause 36 refers only to matters arising under the original or appellate jurisdiction of the Court, the provision in Clause 15 refers to no other matters. The language of Clause 36 is clear. It refers to the functions hereby directed to be performed in the exercise of the original or appellate jurisdiction of the Court, and the language indicates that the appellate jurisdiction does not include revisional jurisdiction, for the mention of functions hereby directed to be performed in the exercise of original or appellate jurisdiction cannot include the function of superintendence, because that is not a function directed by the Letters Patent to be performed. The power of superintendence conferred by Section 15 of the statute is not controlled by anything in the Letters Patent.
15. Further, it does not seem possible to identify the appellate jurisdiction with the power of superintendence given under Section 622 of the Code. So far from it being correct to say that the two powers are indentical, it would be more correct to say that the one is exclusive of the other. The power of revision or superintendence is invoke d when there is no right of appeal and its existence may be attributed to the absence of that right. There is no necessary connection between the one jurisdiction and the other. A jurisdiction similar to that which may be exercised under Section 15 of the Statute or under Section 622 of the Code was exercised by the Court of Queen’s Bench over inferior Courts which were not subject to its appellate jurisdiction. The writ of certiorari serves the purpose for which the power of transferring suits or appeals is given by Section 15 of the statute, and there is the writ of mandamus the object of which is to compel the inferior Courts to exercise their jurisdiction and there is the writ of prohibition devised to restrain the inferior Courts from acting beyond the bounds of their jurisdiction. In view of the same objects, namely, that of compelling Courts to exercise their jurisdiction and that of keeping them within their jurisdiction a power of superintendence was given to the High Court by Section 15 of the Statute, and Section 622 of the Code Civil Procedure refers solely to questions of jurisdiction. An appeal involves a re-hearing of the case–an entire re-hearing or a re-hearing limited to questions of law. It involves a possibility of a new decree or a judgment substituted in the place of that passed by the lower Court. The power of super-intendence involves neither a re-hearing nor fresh decree. It extends only to ordering a thing to be done, or not to be done, or to be undone and done over again. It is in the interests of the public as much as in those of the individual that this power of control is given, and the Court may, therefore, act of its own motion-under Section 622 which’ it cannot do in appellate matters. Again, the connection in which the power of superintendence is given under Section 15 of the Statute shows that it is something distinct from appellate jurisdiction. It appears as one of a group of powers conferred on the High Court. In the same sentence the Section says the High Court shall have superintendence over all Courts which may be subject to its appellate jurisdiction and shall have power to call for returns and to direct the transfer of any suit or appeal and shall ‘ have power to make rules of practice and to prescribe forms. If the term “appellate jurisdiction” be taken to denote the first-mentioned power, it would be difficult to say why it should not equally denote all the other powers mentioned in the Section. Yet it could hardly be argued that the power of making rules is one of the. functions for which provision is made in Clause 36 of the Letters Patent. It seems to me, therefore, that it would involve a strain on the plain language of the Statute and of the Letters Patent to hold that an order passed in revision is a judgment passed in the exercise of the appellate jurisdiction of the Court. Such are my reasons for holding that when a single Judge of this Court has passed an order admitting or rejecting an application for revision made under Section 622 of the Code, which he may lawfully do under our rules, no appeal lies against that order.
Benson, J.
16. The question referred for our decision involves two other questions, viz:
(1) Whether the jurisdiction exercised by the High Court under Section 622, Civil Procedure Code, is included in the expression “appellate jurisdiction” as used in Section 13 of the High Court Act (24 and 25 Vict. c. 104) and in Section 86 of the Letters Patent of 1866, and (2) Whether the right of appeal given by Section 15 of the Letters Patent against an order passed by a single Judge of the High Court is controlled and limited by Sections 588 and 591; Civil Procedure Code.
17. I am of opinion that both of these questions must be answered in the affirmative, the first for the reasons stated by my learned colleague Mr. Justice Subrahmania Aiyar in the judgment, which he has just delivered, and the second for the reasons stated at length in the judgment which I recently delivered in the case of Vasudeva Upadhyaya v. Visvaraja Thirthasami (I. L. R., 20 M. 407).
18. As to. the first question I think that in considering what was the intention of the Legislature, we may well look to the consequences that would follow from our adoption of any interpretation that is urged upon us for acceptance. Now if we accept the view that the term ” appellate jurisdiction” refers only to appeals properly so called, but does not include the powers which the High Court possesses as a Court of reference and revision under chapter 46 of the Civil Procedure Code (which are essentially similar to the powers in regard to reference and revision possessed by the High Court under Act XXXII of 1861 before the High Court Act was passed) –if we accept this view, it follows that every reference to, and every act of revision by, the High Court must be dealt with by the whole Court consisting of the Chief Justice and five Judges. More than this, even the transfer of a suit or appeal under Section 15 of the High Court Act will require to be made by the whole Court. Again, Section 25 of the Provincial Small Cause Courts Act empowers the High Court to call for the records in order to satisfy itself that any decree or order of a Small Cause Court is according to law, and pass such order thereon as it thinks fit. Is it possible to suppose that the Legislature required that such comparatively small matters should be dealt with by the whole Court, while it allowed the largest interests civil and criminal, original and appellate, including even life and death to be dealt with by one or two Judges of the High Court under rules made by the High Court in that behalf? The jurisdiction of the High Court on a reference made under chapter 46 is essentially appellate in its character. The reference may be originated by either party moving through the lower Court, and the High Court is obliged to hear the parties in person or by pleader. Is it not a greater strain on language to hold that this function of the High Court is included in the general power of “superintendence” under Section 15 rather than in the term “appellate jurisdiction” in Section 13 of the High Court Act, and can it be supposed that the Legislature intended the whole Court to sit and hear parties or their pleaders in each of these references? In applications for reference under Section 622 and under the Small Cause Courts Act and for transfer of suits it is also the practice, founded on obvious convenience, to hear the parties by their pleaders. The procedure is of an essentially appellate character as invoking the interference of a superior Court, and I am of opinion that all these acts were intended to be included in the term “appellate”, as opposed to “original” jurisdiction in Section 13 of the High” Court Act and in Section 36 of the Letters Patent founded thereon.
19. As to the second question, every argument urged before us in the present case has been fully dealt with in my judgment already referred to. The reasons I have there set forth would, I think, be regarded as absolutely conclusive but for an observation of their Lordships of the Privy Council in Harish Chunder Chowdhry v. Kali Sundar Debia (I. L. R., 9 C., 482). I have, however, given reasons for thinking that that observation was not intended to lay down a general interpretation of the law applicable to all cases in which an appeal is sought to be made to the Full Court under Section 15 of the Letters Patent against an order of a single Judge, but was made with reference to a particular case then before their Lordships. If I am right in this view it is open to us, notwithstanding that observation, to consider what the general law is. Reading Sections 632 and 638 of the Civil Procedure Code with Sections 588 and 591, it seems to me impossible not to hold that the Legislature intended thereby to restrict, and did, in fact, restrict in certain particulars the general right of appeal against the orders of a single Judge given by Section 15 of the Letters Patent.
20. I would, therefore, give an answer in the negative to the reference made to us.
Boddam, J.
21. The question to be decided on this reference is ” Does an appeal lie from an order passed by a single Judge of the High Court under Section 622, Code of Civil Procedure?”
22. Section 622 of the Civil Procedure Code is as follows:
The High Court may call for the record of any case in which no appeal lies to the High Court if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, and may pass such order in the case as the High Court thinks fit.
23. The practice under this “Section has for many years been for one or other of the parties to the proceeding in the Court below who thinks that that Court has acted so as to come within this Section to file a Civil Revision Petition before the High Court and this comes on before a single Judge who either acts or declines to act in the matter for the High Court and passes his order accordingly.
24. It is urged that under Section 15 of the amended Letters Patent whatever order the single Judge makes, whether he dismisses the petition or remits the case with an intimation that the Court below has acted wrongly–there is an appeal from that order to a Bench of the High Court and thence possibly to the Privy Council.
25. If this is so, it appears obvious that there is no case in which there is not an appeal (limited it may be in its extent but still an appeal) and that to the High Court, thence to a Bench of the High Court and thence possibly to the Privy Council. I feel satisfied that this is not the intention.
26. Here there is no question referred as to whether the particular order amounts to a judgment or not, because the reference is as to an “order” alone, nor do I imagine that it was the intention of the Court referring the question that the answer to the reference should amount to nothing more than that it depends upon what the order, is (e.g., whether it amounts to a judgment or not and is final or otherwise): for in that case the particular Order should have been set out in the reference.
27. It must, therefore, in the first place, be assumed that the question is confined to an order in its limited sense. The argument was that as the Civil Procedure Code did not in so many words repeal any part of Clause 15 of the Letters Patent, in every case where a single Judge sat his decision was appealable to a Bench of two Judges under that clause even when it resulted only in an order and no more as distinct from a judgment. This argument has been carefully and exhaustively refuted by Mr. Justice Benson in his judgment in Vasudeva Upadyaya v. Visvaraja Thirthasami, I. L. R. 20, M. 407. He says inter alia, and I adopt his words.
Section 44 of the Letters Patent expressly contemplates the Governor-General in Council passing laws which shall have the effect of amending or altering the provisions of the Letters Patent and declares that all the provisions of the Letters Patent are subject to such laws and may be in all respects amended and altered thereby. When the Governor-General in Council enacted the Procedure Code, he deliberately restricted the right of appeal in regard to certain specified orders and distinctly declared that those restrictions applied to the High Court, &c.
28. Chapter 43 of the Civil Procedure Code (Sections 588 to 591 inclusive) deals with appeals from orders. Section 588 sets out the orders that are appealable. It says “an appeal shall lie from the following orders under this Code and from no other such orders.” In the list of orders following, orders under Section 622 are not included ; and Section 591 says “except as provided in this chapter no appeal shall lie from any order passed by any Court in the exercise of its original or appellate jurisdiction.”
29. Assuming that when an order is passed under Section 622 it is passed by a Court in the exercise of its appellate jurisdiction, as was held to be the case in Bhagirath v. Naubat Singh I. L. R., 2 A. 117, by two of the Judges no appeal lies from an order under Section 622 unless the order is ejusdem generis with the orders specified in Section 588.
30. The words of Section 588 are “from no other such order,” and I have no doubt that it is in reference to these words that their Lordships of the Privy Council in their judgment in Hurrish Chunder Chowdhry v. Kalisunderi Delia, I. L. R., 9 C. 482, say “it only remains to observe that, their Lordships do not think that Section 588, Act X of 1877, which has the effect of restricting appeals applies to such a case as this where the appeal is from one of the Judges of the High Court to the Full. Court.” On this reference I conceive that it is no part of our duty to consider the particular order out of which the reference to the Pull Bench is made, and without doing so it is, in my opinion, impossible to say whether the order in question is appealable or not.
31. The result of this judgment (so far as it applies to the question before us) appears to me to come to this, that if the order made by a single Judge only amounts to an order such as is intended by chapter 43 of the Code, it is not appealable unless it is within Section 538, but if it amounts to more and is a judgment then it is appealable; in other words, that the right given by Section 15 of the Letters Patent to appeal from the order of a single Judge is only limited by the Code to such orders as do not amount to a judgment whereby the rights of the parties are concluded but, where this is the case, the order amounts to a judgment within the meaning of Section 15 of the Letters Patent (3. M. H. C. R. 384), and an appeal lies.
32. If the question before us were whether the particular order passed out of which this reference arose is appealable under Section 15 of the Letters Patent (and I was responsible for the order), I should have no hesitation in holding that the answer should be in the affirmative as it amounts to a judgment; but, as I have said before, that is not the question referred and, indeed, the Vakil supporting the affirmative proposition distinctly stated in answer to a question put to him from the Bench when the question was first argued that ho contended all orders made under Section 622 were appealable so that if the High Court calls for the records of a case or declines to do so, in either case, according to this contention, the order is appealable. If this is the question we are required to answer in this reference, I should have no hesitation in answering the reference in the negative, for that would be to include as appealable orders within chapter 43 other than those mentioned in Section 588.
33. Another question has been raised, viz: Whether an order passed under Section 622 is an order passed in the exercise of the appellate jurisdiction of the Court or merely under its power of superintendence as distinct from its appellate jurisdiction.- Assuming, however, that orders under Section 622 were intended to be passed by the Court under its power of superintendence as distinct from its appellate jurisdiction, it is perfectly clear to my mind that in that case no order could be passed legally by a single Judge, for there is no power to delegate to a single Judge the right to pass orders for the Court under its power of superintendence as distinct from its appellate jurisdiction. Inasmuch, therefore, as this order was made by a single Judge and the reference refers only to orders so passed., it seems to me that such orders in all cases must be illegal and should be set aside even if there is no appeal under Section 15 of the Letters Patent. The fact that these applications are placed before a single Judge shows that whether rightly or wrongly it has hitherto been assumed that they come within the appellate jurisdiction of the Court and have been so treated for sometime. I do not think, therefore, that we should be serving any useful purpose in determining that which would stultify all previous orders so passed and I have, therefore, refrained from giving any opinion upon the question.
34. On the whole, I am of opinion that it is not possible to answer this reference either in the affirmative or in the negative. I can only say that in some cases there may, in my opinion, be an appeal and in others there is no appeal. It depends upon the order in question.
Moore. J,
35. At the hearing of an appeal preferred from an order of a single Judge of this Court under Section 622, C. P. C., it was urged that under the provisions of Section 591, C. P. C., there was no appeal, and the following question has accordingly been referred to the decision of a Full Bench, “Does an appeal lie from an order passed by a single Judge of the High Court under Section 622 C. P. C.?”
36. It is admitted that if an order passed under Section 622, Civil Procedure Code, is not a judgment within the meaning of Section 15 of the Letters Patent, there can be no appeal from it under the provisions of the Letters. As to what is a judgment under this Section, reference may be made to the decision of Mr. Justice Bittlestone reported at 3. M. H. C. R.–384, where he observed. “The word judgment there (i.e. Section 15 of the Letters) used cannot be limited to a final judgment in a suit, nor indeed to a judgment in a suit at all, but must be held to have the more general meaning of any decision or determination affecting the rights or the interest of any suitor or applicant.” (Reference may also be made to the decision of Markby, J., on the point in Justices of the Peace for Calcutta v. The Oriental Gas Company 8 B. L. R., 433, followed in In the matter of the. petition of Kally Soondery Dabia I. L. R., 6, C. 594 at p. 601). The question, therefore, to be considered is, whether an order amounting to a judgment having been passed under Section 622, an appeal from it lies, no express appeal being provided for from such an order in the Civil Procedure Code in view of the provisions of Section 591, Civil Procedure Code, which lays down that no appeal is to lie from any order passed by any Court in the exercise of its original or appellate jurisdiction except as provided for in chapter 43 of the Civil Procedure Code?
37. It must be admitted that this Court has not adopted a uniform course in dealing with the question as to whether appeals of the class now under consideration lie or not.
38. In certain reported decisions referred to by my learned colleague and myself in our order of reference to the Full Bench the question as to how far Sections 588 and 629 of the C. P. C., control the provisions of Section 15 of the Letters Patent has been considered, the view taken being that where those Sections expressly direct that orders passed under them are final there can be no appeal under the Letters Pattont. In Vanangamudi v. Ramasami I. L, R., 14 M. 406, where an appeal under the Letters Patent from an order passed under Section 622 of the C. P. C. was considered, the only question adjudicated on in considering as to whether an appeal lay or not was as to whether the order was a judgment, The point now at issue was not raised. In a number of decisions reported in the 16th and 19th volumes of the I. L. R., Madras, appeals preferred under Section 15 of the Letters Patent Act from orders under 622 of the Civil Procedure Code were heard and disposed of, but in all these cases as far as can be seen from the reports the question as to whether such appeals lay was not discussed. In Venkata Reddi v. Taylor I. L. R., 17 M. 100, the question as to whether, when a single Judge of this Court acting under Section 25 of the Provincial Small Cause Courts Act (IX of 1887) revises a decree of a Small Cause Court, his order could be appealed against under Section 15 of the Letters Patent was considered and it Was decided that notwithstanding Section 27 of that Act such an appeal lay. It appears to me that it would be difficult to differentiate this case from the one now under consideration. If, in spite of Section 27 of the Small Cause Courts Act, an appeal can be preferred from an order passed under Section 25 of that Act it seems to me to follow logically that notwithstanding Section 591 of the Civil Procedure Code an appeal lies from an order passed by a single Judge under Section 622, Civil Procedure Code, I cannot find any definite rulings on this question in the reported decisions of the Calcutta and Bombay High Courts. The very important decision of their Lordships of the Privy Council referred to in the order of reference (I. L. R., 9 C. 482) remains for consideration. The ruling of their Lordships to be found there as to the effect of Section 588, Civil Procedure Code, is as follows: “It only remains to observe that their Lordships do not think that Section 588, Act IX of 1877, which has the effect of restricting certain appeals, applies to such a case as this where the appeal is from one of the Judges of the High Court to the Full Bench.”-The ruling has been recently considered at length in a judgment by Subrahmania Aiyar and Benson, JJ., reported at I. L. R., 20 M. 407. It has there been held by Mr. Justice Benson (pp. 411 and 412) that the words used by their Lordships, as quoted in the present order of reference, do not lay down as a general rule that Section 588 of the of the Civil Procedure Code does not apply to any case in which an appeal is sought to be made under Section 15 of the Letters Patent from the order of a single Judge. It is pointed out that in the case there under consideration a Judge of the High Court of Calcutta had by an order passed under Section 610, Civil Procedure Code, refused to transmit to the Court of First Instance for execution a decree of the Privy Council and Mr. Justice Benson was of opinion (following no doubt the view expressed by Edge, C. J., in Banno Bibi v. Mehdi Husain I. L. R., 11 Article 375 and Muhammad Naim-ul-lah Khan v. Ishan-ul-lah Khan Article 14 Article 226) that although the order made by the Judge was under Section 610, C. P. C., yet it was none the less an oder determining a question arising between parties to the suit in which the decree was passed and relating to the execution thereof (Section 244, Civil Procedure Code). “It was therefore,” Mr. Justice Benson goes on to observe, “an order of the kind expressly declared by Section 2 of the Code to fall within the definition of “a decree” and, as such, it was obviously an order against which an appeal would lie as against a decree.” According to. Mr. Justice Benson the language used by their Lordships amounted to nothing more than this. “Section 588, no doubt, has the effect of restricting appeals in the case of orders which are not decrees, but it does not apply to such a case as this before us which is an order in execution and, therefore, a decree. When therefore such an order has been made by a single Judge an appeal lies to the Full Court,” With all due deference to my learned colleague, I cannot accept the inter-pretation here put on the clear and unambiguous language of their Lordships. There is nothing to show that they looked upon the order of Mr. Justice Pontifex then under consideration (vide I. L. R., 6 C. 594), as a decree under Section 244, C. P. C., or that the provisions of that Section were in their minds when they made the observation under consideration. If the report is referred to, it will be found (pp. 486 and 487 that Counsel for the respondent strongly urged on the consideration) of their Lordships that whatever might have been the case before the enactment of Section 588 of Act X of 1877, the provisions of that Section rendered it clear that there was no appeal. Their Lordships, it is shown, duly considered this argument and overruled it in the observation now under consideration and this being the view that they have taken of Section 588 of the C. P. C., it can scarcely, I think, be doubted that they would take a similar view of the argument that Section 591 takes away an appeal given by Section 15 of the Letters Patent if the question came before them for decision. It appears to me to be very difficult to understand why, if the Legislature intended by Sections 588, 591 and 629 to take away the right of appeal, from decisions of single Judges of the High Court granted by Section 15 of the Letters Patent, this very important change in the law was not made by clear and distinct enactment. It must, I think, in considering this question, be borne in mind that no attempt is made in Act XIV of 1882 to provide a complete Code of Procedure for the High Courts in all branches of their civil judicial work. Nothing is said, for example, as to whether appeals are to be heard by one Judge or by a Bench of two or more Judges. The power given to the Chief Justice to make rules as to such matters under Sections 13 and 14 of 24 and 25 Vic. ch. 104 is not interfered with. If it was intended that the right of appeal given by Section 15 of the Letters Patent from all judgments of a single Judge should be taken away, it is only reasonable to presume that the Code would have gone further and provided as to what judicial acts may be done by a single Judge and what matters should go before a Bench of at least two Judges.
39. It is further urged that Sections 632 and 638, C. P. C., show that Sections 588 and 591 apply to the High Court and that it was intended that the right of appeal given by Section 15 of the Letters Patent should not be affected by the provisions of Sections 588 and 591, it may be presumed that these two Sections would have been included in those mentioned in Section 688 as Sections which do not apply to the High Court. It is clear, however, that this could not have been done, for the provisions of Sections 588 Clause 1, provides that if a District Munsif passes an order under Section 20 of the Code, an appeal lies to the District Judge, but that there is no second appeal to the High Court, while if a District Judge passes such an order an appeal -can be preferred to the High Court. Whatever view be taken of Section 15 of the Letters Patent it would have been impossible to include Section 588 among those Sections that do not apply to the High Court.
40. It has further been urged that when a Judge of the High Court acting under Section 622 of the Code of Civil Procedure passes a judgment in revision, he has not done so in the exercise of either the original or appellate jurisdiction vested in the High Court (24 and 25 Vic. c. 104, Section 13) and that there is, consequently, no appeal from his judgment under Section 15 of the Letters Patent. It does not appear to me that this is a valid contention. Under Section 8 of 24 and 25 Vict. c. 104 it was directed that the Supreme Court and the Court of Sadr Adalat and Fouzdary Adalat in Madras should be abolished and that (Section 9) a High Court should be established which should have and exercise all jurisdiction and every power and authority whatsoever vested in any of the Courts thus abolished at the time of their abolition. The extensive powers of revision now exercised under Section 622 of the Civil Procedure Code were first given to the Sadr Court in a very restricted form by Section 35 Act XXIII of 1861 which received the assent of the Governor-General on the 28th August 1861. The Sadr Court was not abolished and the High Court, which was to take its place, established till the first Letters Patent were issued in 1862. When, therefore, the High Court was established, among the powers vested in it were those of revision given to the Sadr Court under Section 35 of the Act of 1861 which is the basis of Section 622 of the present Code. The question, therefore, that arises for consideration is as to whether these powers of revision are included in the matters dealt with in Section 13 of 24 and 25 Vict. c. 104 or with those treated of in Section 15. Such powers are, I am of opinion, certainly not dealt with in Section 15 which treats of acts of superintendence over Subordinate Courts, such as, calling for returns, transfer of appeals and suits from one Court to another and the power to issue rules relating to practice and procedure and to prescribe forms and clearly gives no power such as that exercised under Section 622 of setting aside a judgment of a Subordinate Court and passing a revised judgment in lieu thereof. Reference may be made to I. L. R., 1 A. 101, where it is held that Section 15 of the Charter Act confers on a High Court administrative authority and not judicial powers and where it is pointed out in a foot-note that this is the view that has been followed by the Calcutta High Court in a long series of cases. The powers of revisions now under consideration must, therefore, come under Section 13 and as such powers are certainly not exercised by the High Court in its original jurisdiction, it follows, in my opinion, that they come under the appellate jurisdiction of that Court. If this view be correct a judgment under Section 622, C. P. C., is passed pursuant to Section 13 of 24 and 25 Vict. c. 104 and an appeal accordingly lies from it under Section 15 of the Letters Patent.
41. For the foregoing reasons, I am of opinion that it was not the intention of the Legislature that the provision of Section 15 of the Letters Patent should be affected by Section 591 of the C. P. C., that, consequently, an appeal lies from any order amounting to a judgment passed by a single Judge under Section 622 of the C. P. C., notwithstanding the provisions of Section 591, and I would accordingly answer the question referred as follows: An appeal lies from all orders amounting to judgments passed by a single Judge of the High Court under Section 622 of the Civil Procedure Code.
Equivalent citations: (1898) 8 MLJ 231,(1899) ILR 22 Mad 68 (FB)