Sardarni Chanan Kaur and ors. Vs. Mohan Lal Goela and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the section, therefore, clearly contemplates the promulgation of a notification in respect of sales that have already been completed and it cannot, accordingly, be urged that a notification with a retrospective operation is outside the scope of the section. the notice distinctly stated that the property was to be sold by public auction on 22-5-1912 at 8 a.achhru ram, j.1. this is an appeal from the decree of a subordinate judge of delhi dismissing the appellants' suit to pre-empt a sale of certain landed property by the court of ward of the estate of the heirs of r.b. buta singh of rawalpindi. the land sold was situate in: delhi and was sold to mohan lal respondent for a sum of rupees one lac and fifteen thousand. the suit was dismissed on the ground that the sale sought to be pre-empted had been effected by means of public auction and that in view of the notification issued by the chief commissioner of delhi on 26-11-1943 and published in the gazette of india dated 4-12-1943 it was not pre-emptible.2. in arguing this appeal, mr. harnam singh, the learned counsel for the appellants, contended that the notification issued by the chief commissioner was not authorised by the language of section 8, punjab pre-emption act under which it purported to have been issued and that in promulgating it the chief commissioner had exceeded his legal powers. it was urged by the learned counsel that the aforesaid section did not empower the local government to issue a notification in respect of a sale that had already taken place so as to take away a right of pre-emption, that had already accrued, and that accordingly the notification now in question in so far as it professes to affect sales that took place before its promulgation must be held to be ultra vires. after a careful consideration of the language of the section, however, i find myself unable to accept this contention. the section reads as follows:the local government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales, no right of pre-emption or only such limited right as the local government may specify, shall exist.the section in very clear terms empowers the local government to declare with respect to any sale that no right of pre-emption or only a limited right such as may be specified by it shall exist. the local government has been given the power to make such a declaration not only in respect of any class of sales but also with respect to a particular sale and it is obvious that where the declaration is made in respect of a particular sale the sale must have preceded, the promulgation of the notification. the section, therefore, clearly contemplates the promulgation of a notification in respect of sales that have already been completed and it cannot, accordingly, be urged that a notification with a retrospective operation is outside the scope of the section.3. the second contention of mr. harnam singh was that the sale sought to be pre-empted m the present suit is not in fact a sale by public auction and was not, therefore, saved by the notification relied on by the learned subordinate judge. this contention is equally without force, ex. p.c./3 printed at page 38 is a copy of the notice issued by the deputy commissioner in charge court of wards of the estate of r.b. buta singh in respect of the sale of the land in dispute. the notice distinctly stated that the property was to be sold by public auction on 22-5-1912 at 8 a.m. conditions of the sale were also embodied in the aforesaid notice. it is not disputed that a public auction, was held at which bids were offered by different people, the bid of mohan lal respondent being the highest. what is urged is that according to the conditions of the sale as given in ex. p.c./3 and as otherwise admitted the court of wards was not bound to accept the highest bid and that the evidence given by mr. askwith, chief commissioner, shows that very probably he received some kind of an offer after the auction. these facts, however, do not make the sale sought to be pre-empted any the less a sale by public auction. the reservation to court of wards of the right not to accept the highest bid cannot possibly make the sale when the highest bid is in fact accepted a sale otherwise than by public auction nor does the receipt by the chief commissioner of an offer subsequent to the auction alter the character of the sale. even if the subsequent offer was not a purely voluntary offer and can be assumed to have been made in pursuance of some kind of invitation by the officer concerned, it might be that fee offer was invited in order to enable that officer to make up his mind whether or not to accept the highest bid as given at the auction. if as a result of this offer that officer had refused to accept the highest bid and instead of ordering re-sale of the property by another auction had sold the property to the person giving the offer that would certainly be a sale by means of private treaty and not a sale by public auction. when, however, the highest bid given at the auction is actually accepted, the mere fact of such an offer having been asked for or having f been made cannot make the sale to the highest i bidder a sale by private treaty. for the reasons given above, i see no force in this appeal and dismiss the same with costs.khosla, j.4. i agree.