Wadhwa Ram Kesar Singh and anr. Vs. Gian Chand Ganesh Dass 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. - 1. this petition raises the question whether the failure on the part of a debtor to make an application under section 11(2) of the displaced persons (debt adjustment) act, 1951, at the proper time debars him from presenting a similar application on a later occasion. it is equally clear, for the reasons which appear hereafter, that the failure on the part of at debtor to take advantage of the provisions of section 11(2) debars him from presenting a similar application in respect of the same debt. baldevi presented her application under section 10 of the act of 1951 it was clearly open to the debtors to present an application under sub-section (2) of section 11. they failed to take advantage of the provision and on their failure to do so the tribunal proceeded to pass a decree in favour of the creditor.bhandari, c.j. 1. this petition raises the question whether the failure on the part of a debtor to make an application under section 11(2) of the displaced persons (debt adjustment) act, 1951, at the proper time debars him from presenting a similar application on a later occasion. 2. the facts of the case are very simple indeed. on the 8th august 1952 suit. baldevi presented an application under section 10 of the actof 1951 against wadhawa ram and harbans singh,and on the 7th july 1953 she obtained a decreein a sum of rs. 7630, which was later confirmedin an appeal. on the 16th january 1954 one gain chand, another creditor, brought an application under section 10 against the said debtors and on receipt of the notice the debtors put in an application under section 5 for the adjustment of their debts, mentioning in the schedule appended to the application the name of smt. baldevi as a creditor to the extent of rs. 7,630/-. smt. baldevi objected to her decree being included in the schedule and her objection found favour with the tribunal. the tribunal dismissed the petition under section 5 as far as smt. baldevi was concerned but allowed it to proceed in respect of the other creditors. the debtors are dissatisfied with the order and have come to this court in revision. 3. there can be no manner of doubt that a decree passed by a tribunal under the provisions of the act of 1951 falls within the ambit of the expression 'debt' as defined in section 2(6) of the said act and consequently that it is incumbent on a debtor making an application under section 9 of the said act to include this debt in the schedule which accompanies the application under the said section. it is equally clear, for the reasons which appear hereafter, that the failure on the part of at debtor to take advantage of the provisions of section 11(2) debars him from presenting a similar application in respect of the same debt. when smt. baldevi presented her application under section 10 of the act of 1951 it was clearly open to the debtors to present an application under sub-section (2) of section 11. they failed to take advantage of the provision and on their failure to do so the tribunal proceeded to pass a decree in favour of the creditor. as the provisions of the code of civil procedure apply to proceedings under this act & as explanation iv to section 11 of the code of civil procedure declares that any matter which might & ought to have been made ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such suit, it seems to me that when the debtors who were at liberty to take advantage of the provisions of section 11(2) in the earlier litigation omitted to do so, they must be deemed impliedly to have relinquished the right which vested in them. i am inclined to hold therefore that as no application under section 11(2) was presented by the debtors, the application must be deemed to have been impliedly dismissed. a fresh application will thus be barred not only under the rules of 'res judicata' but also under the provisions of section 44 of the statute which declares in unambiguous language that where an application made by a displaced debtor under sub-section (2) of section 11 has been dismissed no further application for the same purpose shall lie. 4. there is another aspect of the matter which needs to be considered. section 21 of thestatute makes it quite clear that the power to revise decrees under this act extends only to decrees passed before the commencement of this act. as the express mention of one thing implies the exclusion of another, it seems to me that the power conferred by this act to revise decrees extends only to decrees passed before the commencement of this act and not to decrees passed after the commencement of this act. it follows as a consequence that the decree passed by the tribunal in favour of smt. baldevi on the 7th july 1953 cannot be reopened and cannot be readjusted under the provisions of the present act. moreover if an application under section 11(2) were allowed to be preferred at any time no decree passed by a tribunal on the application of a creditor would ever be final and there would be no end to litigation. 5. for these reasons i would uphold the order of the tribunal and dismiss the petition. having regard to the difficulty of the point at issue i would leave the parties to bear their own costs.