NaraIn Singh Vs. Teja Singh 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. kapur, j. 1. this is a defendant's appeal against a concurring decree of the district judge of gurdaspur dated 1-7-1953, decreeing the plaintiffs' suit.(2) i may here state the facts in some detail, and they are that one ujagar singh was the owner of 86 kanals 12 marlas of land, which is in dispute, plus some other land. on 31-5-1945 ujagar singh mortgaged to lehna singh theland in the suit and the other land for rs. 2,000/-. lehna singh died and on 2-10-1949 his legal representatives transferred to narain singh for a sum of rs. 1,000/- the mortgagee rights in 86 kanals 12 marlas of land which is evidenced by ex. p4. it appears that before that ujagar singh had redeemed the other land which had been mortgaged with lehna singh by payment at rs. 1000/-. on 12-4-1950 ujagar singh mortgaged 39 kanals 12 marlas of land out 86 kanals 12 marlas for rs. 1,000/- to the plaintiffs and charan singh defendant no. 2. and he had previously leased 47 canals of land to them for ten years. thus the plaintiffs etc. became mortgagees of 39 kanals and 12 marlas of land and lessees of 47 kanals. 3. the plaintiff's along with ujagar singh and charan singh defendant made an application under the punjab redemption of mortgages act of 1913 for redemption of the land and it was held that they could not redeem the land because the mutation had not been attested in their favour.on 18-3-1952 a suit was then brought, by the plaintiffs for a declaration challenging the order of the revenue officer and both the courts below have held in their favour.4. in second appeal mr. gujral has submitted that no doubt under section 60, t.p. act, the integrity of a mortgage cannot be broken but because the mortgagees themselves have allowed a portion of the property mortgaged with them to be redeemed the plaintiffs are only entitled to redeem their portion, i.e., 39 kanals 12 marlas and not all the rest. but after the amendment of 1929 the proviso to section 60 reads as under:'redemption of portion of mortgaged property: nothing in this section shall entitle a person interested in a share 'only' of the mortgaged property to redeem his own share 'only' on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgages than one, all such mortgagees, has or have acquired in whole or in part, the share of a mortgagor.' the addition of this word 'only' has been the subject-matter of interpretation by the allahabad high court and that view of the law has been accepted by the learned author of mulla's transfer of property act, and, therefore, out of the three exceptions which were allowed before the amendment, i.e., (1) where the mortgagee allowed redemption of a share, (2) where there is release of a share by the mortgagee and (3) where the mortgagee acquires a share in the property mortgaged, only the last one remains.mulla's transfer of property act at page 424 the law is stated as follows:'under section 60 of the act the integrity of a mortgagee is not broken except where the mortgagee has purchased or otherwise acquired as proprietor a certain portion of the property mortgaged. this categorical statement of the law sets at rest the divergent views previously expressed by courts in india.'5. mr. gujral relies on a judgment of the patna high court in -- 'kamakshya narain singh v. ramzan ali', air 1915 pat 106 (a), but in that case all that is he-id is that section 60, t. p. act, does not prevent a mortgagee himself from splitting up the mortgage and the section has no application to a case where he himself asks for a decree for a sale of a portion only of the mortgaged property. that has, in my opinion, no application to the facts of the case before me.the suit in my opinion has been rightly decreed, and i would, therefore, dismiss this appeal with costs.