Mehar Chand Vs. Shiv Lal and anr. - 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. - 4,000/- in cash on account of security for costs, the respondent was precluded from executing the decree in respect of this sum and could at best execute the decree for the balance.bhandari, c.j.1. this appeal raises the question whether the loss of money deposited in court under the provisions of order 45, rule 7, civil p. c. should be borne by the person who made the deposit or by the person for whose benefit the deposit was made.2. the appellant in this case is one mehar chand who having lost his case in the courts in india applied to the high court at lahore for permission to prefer an appeal to the privy coun-cil in england. this permission was accorded in due course and he deposited a sum of rs. 4,000/-under the provisions of rule 7, order 45, civil p. c. unfortunately for the appellant, their lordships of the privy council rejected the appeal and directed him to pay a sum of rs. 4,762/15/3 by way of costs.on 1-12-1s48, the respondent initiated pro-ceedings for the recovery of this sum of money and secured the attachment of a shop belonging to the appellant. the latter objected to the attachment on the ground that as he had already deposited a sum of rs. 4,000/- in cash on account of security for costs, the respondent was precluded from executing the decree in respect of this sum and could at best execute the decree for the balance.this objection found favour with the senior subordinate judge and the latter directed therespondent to execute the decree, only in respect of the amount which was over and above the amount actually deposited in court. a learned single judge of this court, however, came to a contrary conclusion. he held that as the deposit in question was the property of the appellant and as it was made by way of security for payment of costs, it was open to the respondent to relinquish this security and to recover the costs of the appeal from the appellant.he accordingly accepted the appeal, set aside the order of the senior subordinate judge and directed the executing court to execute the decree. the appellant is dissatisfied with the order and has come to this court in appeal under clause 10, letters patent.3. rule 7 of order 45 provides that no person shall be at liberty to prefer an appeal to the privy council unless he makes an actual deposit of costs for payment to the opposite party or furnishes security for the payment.it has been enacted as much with the object of discouraging litigants from seeking redress at the hands of the highest court as of securing the payment of damages to the successful party in the event of the appeal being dismissed. money deposited by a party to an action under the provisions of a statute or in compliance with an order of the court to await the outcome of litigation is deemed to be in the custody of the law and is not liable either to attachment or to execution.it must remain in the custody of the court until the result of the litigation is known and must be used for the specific purpose for which it was paid -- 'roop chand v. gulzari lal', air 1954 punj 257 (a). it ceases to be the property of the person by whom it was paid and is said to belong to the person who is found eventually to be entitled thereto. '(ex. parte banner; in re. keyworth', (1874) 9 ch. a 379 (b)).american courts have taken the view that when a party in obedience to an order of court makes a deposit of money in court, a loss thereof must, as between the parties to the proceedings, be borne by him who is found to be entitled ultimately to the fund -- 'gill v. harbour', (1835) 80 va. 11 (c).a similar view has been taken by the courts in india, for it has been held by a full bench that where the judgment-debtor is proved to have paid money due from him under a decree passed by the court to the receiver appointed by the court for realizing the money, and the receiver is found subsequently to have misappropriated the money, the loss must fall on the decree-holder alone, for he cannot be allowed to receive the said money again from the judgment-debtor --'jai indar bahadur singh v. mst. brij inder kaur', air 1929 oudh 231 (fb) (d).4. the appellant in the present case was under a statutory obligation either to pay the costs in court or to furnish security for their payment. he chose the first of the two alternatives and deposited the money in cash in satisfaction of so much of the costs as might be awarded to the respondent.by making the deposit required of him, he relinquished all his rights in the money deposited by him and empowered the court to make such order in regard to the disposal thereof as it thought fit. the court took charge of the money and held it for the benefit of the person who might be declared ultimately to be entitled thereto. the ap-peal preferred by the appellant was rejected and the respondent became entitled to the recovery of costs. if on account of the partition of the country, the money has been lost or has ceased to become available to the respondent, seems to me that the loss must be borne by the respondent, for i am aware of no principle of law or equity which would exempt him from liability to bear the loss, if any loss has in fact been sustained.5. for these reasons, i would allow the appeal, set aside the order of the learned single judge and restore that of the senior subordinate judge. in view of the peculiar circumstances of the case, i would leave the parties to bear their own costs.khosla, j.6. i agree.