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ing the usual practice of this Court, the application was hoard by the
Judge who was a party to the judgment, and was still a member of [228]
the Court, and he made the order which was questioned in this appeal.

The question which we have to decide depends upon the considera-
tion of s. 10 of our Letters Patent, the statutes relating to the legislative
powers of tbe Governor-General of India in Council, and of the Code of Civil
Procedure, as amended. The Letters Patent applying to this Court were
issued on the llth June 1866, and consequently long prior to the Code of
Civil Procedure with which we have to deal. It is not contested, and indeed
it could not be, -that tbe Governor-General in Council has power to make
laws which this Court is bound to carry out and to observe. That is pro-
vided for by s. 22 of 24 and 25 Victoria, chapter 67, and by subsequent
legislation, and that power of the Governor-General in Council is in terms
reserved by s. 5 of-our Letters Patent. Tbe right of appeal is a right which
is created by statute, or, as in this case, Letters Patent the Letters Patent
being an authority having the force of law. By s. 10 of those Letters
Patent, so far as we need consider them in this case, a right of appeal to
the Court from the judgment, not being a sentence or order passed or
made in any criminal trial of one Judge of the Court, was given. The
question is whether that right of appeal has been curtailed or limited by
subsequent legislation of tbe Governor- General of India in Council. In
my opinion the judgment referred to s. 10 of the Letters Patent is the
express decision of a Judge of the Court which leads up to and originates
an order or decree.

Our brother Tyrrell, in making the order for the amendment of the
appellate decree of this Court in the case, was acting in the exercise of tbe
appellate jurisdiction of the Court, and, as I think, under s. 206 coupled



YII] MD. NAIM-UL-LAH KHAN V. IHSAN-UL-LAH KHAN 14 All. 230

with S3. 582 and 632 of the Code of Civil Procedure (Act No. XIV of 1892
1882). It is true that the High Court of Bombay has held that s. 206 JAN. 23.
of the Oode of Civil Procedure does not apply to a High Court on its
original sido or on its appellate side. That it does not apply to a High Court
on its original side is manifest from s. 638, which excludes the application BENCH.
[229] of that section to a High Court in the exercise of its original civil ^ 4~~226
jurisdiction, But, having regard to ss. 582 and 632, I must regard s. 206 F j .
as applicable to a High Court on its appellate side, as I regard those sections 12 A w N
as practically extending to the appellate side of the Court the earlier
provisions, so far as they are applicable to a High Court on its appellate
aide. It appears to me that if the Legislature had intended that s. 206
should not, so far as may be by reason of ss. 582 and 632, be applicable to
a High Court on its appellate side, it would, when excluding by s. 638,
s. 206 from application to a High Court on its original side, have likewise
excluded the application of s. 206 to a High Court on its appellate side. I
may be wrong in the effect which I attribute to ss. 582 and 632 of the
Code of Civil Procedure, but I think I am correct in saying that it is the
duty of the Legislature when dealing with procedure to lay down in speci-
fic and clear language what such procedure shall be, and not to leave
Courts and litigants in doubt as to what it intends the procedure to be.
Ss. 582, 587 and 647 of the Code of Civil Procedure are fair examples of a
method of drafting and legislation which should be avoided, unless the
Legislature desires to create confusion and uncertainty, and to leave it in
doubt as to whether it or its advisers knew what was the procedure
required.

It is not very material in the present case to decide whether s. 206
applies or not. If ic does not apply, the Court which has to exercise
appellate civil jurisdiction must have an inherent jurisdiction to bring its
decrees into accordance with its judgments, and our brother Tyrrell in
that event passed his order in the exercise of the appellate jurisdiction of
the Court within the meaning of s. 591 of the Oode. The question
before us really turns on the effect of the lections contained in chapter
XLIII of the Code of Civil Procedure. S. 588 of the Code commences
by enacting " an appeal shall lie from the following orders under
this Code and from no other such orders." S. 591 provides that, "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, but,
[230] if any decree be appealed against, any error, defect or irregularity
in any such order affecting the decision of the case may be set forth as a
ground of objection in the memorandum of appeal."

In the case of Hurish Chunder Chowdhry v. SaZi Sunderi Debia (1),
their Lordships of the Privy Council, at page 17, said : " It only remains
to observe that their Lordships do not think that s. 588 of Act X 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 Court to the full
Court." I have had occasion to comment on that decision, and to examine
to the best of my ability its bearing, in the ease of Banno Bibi v. Mehdi
Husain (2). Whether the view which I then took of the meaning of their
Lordships of the Privy Council was correct or not I am not now going to
discuss. On looking again at that case it has struck me further that if
Mr. Justice Pontifex in that case was acting or assuming to act under s. 244
of the then Code of Civil Procedure, an appeal undoubtedly lay. ' It is nofr

(1) 10 I.A, 4-9 0. 482, (2) 11 A, 375*

517



All. 231



INDIAN DECISIONS, NEW SEEIES



[Yol.



1892 necessary to consider whether he had any jurisdiction in that particular

JAN. 23. oase to act under s. 244. It has also struck me that if he was not supposed

to be acting under s. 244, then he must be supposed to have been acting

FULL under some power which he conceived he had under Chapter XLV, which

BENCH, relates to appeals to Her Majesty in Council, aud this leads up to what I

am now going to say.

14 A. 226 j t appears to me that the Code of Civil Procedure (Act No.

(P.B.)- XIV of 1882), as did Act No. X of 1877, contemplates a High Court
12 A. W N. j n j wo aspects. It comtemplates a High Court doing the ordinary work
(1892) 14. o f a Court of original and appellate jurisdiction, having the necessary
powers of review and revision in certain cases, and certain others powers
such as are generally found vested in the Courts of the importance
of High Cpurts. It also contemplates that the High Courts in India
should, in certain matters relating to appeals to Her Majesty in Council
act for and on behalf of her Majesty in Council, exercising powers
more in the nature of ministerial powers than in the nature of judicial
powers. Whatever those powers may be, ib is quite clear to my
mind that the powers [231] conferred on a High Court under Chapter
XLV of the Code of Civil Procedure are special powers and entirely distinct
from the ordinary powers required by the High Court in the carrying on
of its ordinary judicial business. It would be impossible to read Chapters
XLIII and XLV together. If the sections contained in Chapter XLIII
were to be applied to matters coming under Chapter XLV, that is, -to
matters arising in appeals to her Majesty in Council, a difficulty would at
once arise; for, although s. 588, limits appeals from orders under the Code
to the orders specified in s. 588, we find on turning to Chapter XLV that,
by ss. 601 and 611, for example; an appeal is given from certain orders
made in India in cases falling under that chapter, and those orders are
not orders which are included as orders from which an appeal may lie
under s. 588. S. 611 provides a procedure by reference for the appeals
from the orders referred to in that section. That section enacts : " The
orders made by the Court which enforces or executes the order of Her
Majesty in Council, relating to such enforcement or execution, shall be
appealable in the same manner and subject to the same rules as the orders
of such Court relating to the enforcement or execution of its own decrees."
I have consequently come to the conclusion that Chapter XLIII
cannot be applied to orders made in appeals in cases which are under
appeal to Her Majesty in Council. If that view be correct, an appeal in
the case which went to the Privy Council from the High Court of Calcutta
would apparently have lain from the order of Mr. Justice Pontifex, whether
he had or had not jurisdiction to make that order.

It may be said that there may be other matters in the Code of Civil
Procedure orders other than orders made in cases falling under Chapter
XLV to which the sections in Chapter XLIII do not apply. It may be
said, for instance, that they do not apply to an order made on an application
for review of judgment under section 623. With regard to that, even
assuming for a moment), I am not going to decide it, that Chapter XLIII
does not apply at all to applications for review of judgment, we find that
section 629 [232] provides that where the Court makes an order rejecting
the application that order shall be final, and where the Court admits the
application, an immediate appeal is given by the same section against the
order admitting the application. With regard to orders made in revision
under section 622 of the Code of Civil Procedure (Act No. XIV of 1882),
it appears to me that, whether Chapter XLIII of the Code Applies or not,

m



11] MD. NAIM-UL-LAH KHAN y. IHSAN-UL-LAH KHAN 14 All. 233

it could not have been contemplated by the Legislature that there should 1892
be any appeal against an order made under section 622 of the Code. JAN. 28.
Section 622 can only be applied by a High Court in cases in which no
appeal lies to the High Court. It is a section which has been always FULL
treated and always considered, by this Court at any rate, as giving purely BENCH.

discretionary power to the High Court to interfere or not. It was a section

which obviously was not intended to create or be the foundation of appeals 14 A. 226
in cases ra which no appeal bad lain, and, looking at the object; of that (P.B.)=
section and the case8 to which that section would apply, that is, cases in 12 A.W.N,
which no appeal lay to the High Court, Icannot believe that such an anomaly (1892) 1*.
was intended as would exist if from the orders passed under seclion 622 in
revision, a party has aright of appeal when no appeal lay in the original
case to this Court. However, to come back to the subject in hand, I do not
think it necessary to refer to the 'other decisions which have been passed
with regard to the rights of appeal under section 10 cf our Letters Patent
and the corresponding sections of the Letters Patent of other High Courts.
They have frequently been referred to ; but I may confine myself lo saying
in conclusion, lhab I think the order which was passed by our brother
Tyrrell when he decided to amend the decree in the case, was an order
from which an appeal is excluded by Chapter XLIII of the Code of Civil
Procedure. It was an order passed by a Judge not on an appeal, but in
the matter of an appeal in this Court, and in the exercise of the appellate
jurisdiction of this Court.

I would answer this reference by saying that an appeal did not lie
under section 10 of the Latters Patent frcm the order of our brother
Tyrrell.

[233] STRAIGHT, J. I am entirely of the same opinion as the
learned Chief Justice, and I have nothing to add.

MAHMOOD, J. This reference assumes significance, because I think,
though limited to this particular order of my brother Tyrrell, dated the
21st December 1889, it raises, as the argument of the learned counsel for
the parties has shown, some important questions of principle important
not only an questions of law, but also as questions relating to the practice
of this Court; and the practical working thereof.

It is in this view that I desire to deliver a separate judgment by
saying as the first observation therein, that 1 agree in the conclusion
arrived at and the answer given by the learned Chief Justice and my
brother Straight to the question referred to the Full Bench.

That question is simply this : Whether when a Judge of this Court,
namely, a chartered High Court, acting under section 206 of the Code of
Civil Procedure, as that section is rendered applicable by dint not only
of section 582 of the Code in appeals but also by reason of s. 632 of the
Code of Civil Procedure, makes an order, rightly or wrongly, with juris-
diction, an order of that character is one which can be made the subject
of an appeal under section 10 of the Letters Patent ?

It must be said, and indeed there can scarcely be any doubt, that
section 22 of statute 24 and 25, Victoria, Chapter 67, usually called the
India Councils Act, gives ample power to the Governor General in Council
to legislate for India, and those powers are so broad and extensive that
they have quite recently been made the subject of consideration by the.
whole of this Court, where they were considered in the case of Abdulla v.
Mohan Gir (1).

(1) 11 A. 490.

519



14 All. 234 INDIAN DECISIONS, NEW SERIES [Yol.

1892 The next enactment is again an Act of Parliament, 24 and 25

JAN. 23. Victoria, Chapter 104, wherein the powers of the Governor General in

Council to legislate for India, which were given to him under the earlier

FULL enactments, have been preserved.

BENCH. [234] Next come the Letters Patent under which this Court has

been established, and section 28, and more fully section 35 of those

Li A. 226 L e t(j Qrs Patent,' not only preserve the power of the Governor General

(F.B.)= j n c ounc ii fc legislate, but direct us as H>r Majesty's Judges to 'abide by

12 A.W.N. suc fo legjgiafcjon an( j oa rry out its mandates.

I have dwelt upon these preliminary matters in order to give the
answer which I am going to give, and limiting it to the case now before
me without expressing any opinion as to any other class of orders made
by a Judge of this Courb, either in the exercise of original civil or appellate
jurisdiction. The order of my brother Tyrrell was undoubtedly made, as
it seems to me, under section 206 of the Code. It is clear that an order
such as that, when made by a Court in the Mofussil, is not appeal-
able, because it is excluded by section 588 of the Code of Civil
Procedure. It must be taken to be an unappealable order, and it
was indeed upon this ground that in the two Full Bench cases refer-
red to in the referring order, namely, the case of Surta v. Ganga (1) and
Raghunnath Das v. Raj Rumar (2), where my judgments were upheld by
the whole Court, the turning point was that an order under section 206
being an unappealable order can be made the subject of the visitatorial
functions of this Court under section 622 of the Code of Civil Procedure.
When these cases were before the Division Bench, I had the misfortune
of differing upon this point, as to the non-appealability of the orders made
under section 206, because, if these orders can be made appealable to this
Court, this Court, under the express prohibition of section 622, had no
power to interfere in revision.

If orders under s. 206, such as were concerned in the two cases
referred to, when made either by Courts of original or appellate jurisdic-
tion in the districts, are not appealable, it becomes necessary to investi-
gate whether, as is contended by Pandit Sundar Lai, the order of my brother
Tyrrell, which is now under consideration, is to be rendered appealable. The
learned vakil has of course relied upon the solitary ground which he could
urge, namely, the some- [235] what broad and general provisions of s. 10 of
the Letters Patent, and he was quite within his rights when he contend-
ed that, whenever under the law a right of appeal is distinctly given, that
right is not to be taken away, unless there is express legislation or author-
ity which can abrogate the right so conferred. The proposition thus put
is simply t,he converse of the other well-known rule, that no right of
appeal exists unless it is given by statute or by any other authority which
would be binding upon the Court.

Whilst conceding the soundness of this part of the argument I hold,
as the learned Chief Justice has explained, that the provisions of s. 10 of
the Letters Patent have been so amply modified by the various provi-
sions of the enactments passed by the Governor- General in Council under
the authority of the Indian Councils Act, resulting in this last enactment,
namely, the Code of Civil Procedure (Act No. XIV of 1882), that we ars
bound to take into account the provisions of that enactment and to refer
back to s. 10 of the Letters Patent to see whether those general provisions
have or have not been abrogated or modified.

(1) 7 A, 876. (2) 7 A, 876.



YII] MD. NAIM-UL-LAH KHAN V. IH3AN-UL-LAH KHAN 14 All. 237

I am of opinion that they have been modified, so far as the ques- 1892

tion arising in this case is concerned. S. 588 of the Code of Oivil Procedure JAN. 28.
limits the right of appeal to a certain class of orders, and declares that
none other than those contained within the four corners of that section FULL

are appealable. There are various other sections of the Code also which BENCH.

render decrees and orders non-appealable, and I may, by way of illustra-

tion, refer to the last part of s. 522 as to arbitration decrees and also to 14 A 22j

s. 325 of the Code of Civil Procedure, which is nearer in connection with (F-B.) =

the facts of this case, because here also a decree was passed upon a ia AiW N

compromise. (1892) 14.

To hold then that where this statute of ours, namely, our present
Code of Civil Procedure, declares a decree or order non-appealable, such
decree or order can be made the subject of consideration by the whole of
this Court under the Letters Patent, is to hold that wherever no appeal lies
to this Court the ceremony of presenting ifc to this Court to a single Judge
of this Court, who [236] would undoubtedly reject the appeal, makes
it the subject of consideration by a Bench of the Court. It seems to me
that it would be defeating the whole policy of the statute as to the finality
of decisions.

I refrain from referring to the various rulings which have been cited
in the course of the argument. I am anxious to avoid referring to them,
not only because it would lengthen my judgment, but also because, so far
as my own view in this case is concerned, it proceeds upon what I have
said, and it is independent of the ratio adopted in those cases.

To hold that an erroneous order passed by a Judge of this Court,
whether in the exercise of original civil jurisdiction or in the exercise
of appellate civil jurisdiction under s. 2~06, is non-appealable to the whole
of this Court, may appear at first sight to be a hardship ; but it is not
so. This Court under the Code of Civil Procedure is the Court of highest
appeal in this part of the country, and it is as such a Court, and in no
other capacity, that it exercises its powers of revision such as those
contemplated by s. 622 of the Code and s. 25 of the Provincial Small Cause
Courts Act. These powers can be exercised only by a Court of higher
jurisdiction than the Court which made the erroneous order within the
meaning of those sections.

A Juclga of this Court when acting erroneously under s. 206 may be
so acting, but bis action cannot be made subject of revisional jurisdiction
by this Court, because that jurisdiction does not exist, any more than it
exists in cases whore an erroneous decree is passed by a Bench of two
Judges, which decree, even if erroneous, cannot be made the subject of
appeal under s. 10 of the Letters Patent. The remedy, if any, lies by
invoking the power of Her Majesty in Council as the higher tribunal. I
think that to maintain that the whole of this Court has revisional juris-
diction upon a decree made by a Judge of this Court, is to hold that orders
and decrees which are distinctly rendered final and non-appealable by the
Code of Civil Procedure become non-final and appealable by dint of s. 10
cf the Letters Patent. '

[237] I wish to add one more observation, and that is this ; that in the
two Full Bench cases to which I have referred, reported in the 7th volume
of the Allahabad Reports, the point now under consideration was not
raised, and also having carefully considered what was ruled by the learned
Chief Justice and my brethren Straight and Tyrrell in Naubat Earn

521
A VII 66



14 All. 238 INDIAN DECISIONS, NEW SERIES [Yol.

1892 v. llarnam Das (1), and again by the learned Chief Justice and nay brother

JAN. 23. Tyrrell in Banno Bibi v. Mehdi Eusain (2), I consider that nothing which

has fallen from his Lordship the Chief Justice to-day is inconsistent with

FULL the ratio upon which those cases proceeded, and those two rulings are

BENCH, wholly consistent with each other.

My answer to the reference, therefore, is the same as that given by

p B 2 - fche lea ^ ned Chief Ju8tice -
B.)- KNOX, J. In the case before us the prayer addressed to this Court

1 Ai - N - was that the Court might be pleased to rectify a mistake which, it was
892) 14. allege^ had found its way into a decree passed by the Court on the 12th
January 1886. My brother Tyrrell considered that the decree as framed
needed amendment, and passed accordingly his order amending the decree
so as to carry out the intention of the Court which passed that decree.
There is nothing on the record, so far as I can see, which shows that this
order made by him was an order passed under s. 206, as rendered applicable
by ss. 582 and 632 of the Code of Civil Procedure. It may or may not
have been so. I am satisfied that, independently of these sections, this
Court has power to amend its decrees. I am not free from some doubts
whether s. 206, or rather the last two paragraphs of it, were intended to
apply to the appellate jurisdiction of Courts governed by the Code of Civil
Procedure. At present I incline to the view that s. 579 was intended to
be, so far as appeals are concerned, the correlative section to 206, which
applies, at any rate primarily, to decrees in original suits, and was intended
to be complete in icself. But from this standopint also no appeal would
lie from the order passed, as the order in any event was clearly made in
the exercise of the appellate jurisdiction of the Court' [238] within
the meaning of s. 591 of the Code. I concur with the learned Chief
Justice that the order passed by my brother Tyrrell when he decided ta
amend the decree, was an order from which an appeal was excluded
by Chapter XLIII of the Code, and I therefore answer the reference in
the terms given by him.



14 A. 288-12 A W.N, (1892) 97.

APPELLATE CIVIL.
Before Mr. Justice Tyrrell, and Mr. Justice Knox.



MADHO DAS (Plaintiff) v. EAM KISHEN AND OTHERS (Defendants).*

[10th May, 1892.J

Mortgage, equitable Deposit of title-diecis in Calcuta Immoveable property in mofutsil
Act IV of 1882 (Transfer of Property Act), s. 59.

It is not necessary to the validity of a mortgage by deposit of title-deeds under
s. 59 of the Transfer of Property Aot (IV of 1882) that the property to which the
title-deeds relate should be situated within the limits of one of the towns where
such mortgages are allowed.

Varden Seih Sam v. Luckpathy Boyjee Lallah (3) and Manekji Framji v,
Bustomji Nasfrwanji Mistry (4) referred to.

[F., 4 Bur. L. T. 169=11 Ind. Gas. 721 (722) = 6 L.B.R. 23.]

THIS was a suit brought in the Court of the Subordinate Judge of
Mirzapur by one Madho Dass, against Earn Kissen, an insolvent, and the

First Appeal, No. 138 of 1890. from a decree of W. T. Martin, Eeq., District
Judge of Mirzipur, dated the 9th April, 1890.

(1) 6 A. W.N. (1888) 37, (2) 11 A. 375. (3) 9 M.I.A. 303. (4) 14 B. 269.



YII] MADHO DAS V. RAM KISHEN 14 All, 240

official assignee for the recovery of a sum of Bs. 1,35,304-12-9 with 1892
interest, and, in default of payment, for sale of certain immoveable MA.T 10.
property of the first defendant situated in Benares, Mirzapur and
Ghazipur. The suit was based on an alleged equitable mortgage said to APPEL-
have been entered into by- the defendant Bam Kishen in February 1888, LATE
by deposit of the title-deeds relating to the property in suit with the plaintiff's CIVIL.
firm in Calcutta. Earn Kishen did not defend the suit but the pfficial assignee



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 78 of 155)