inder Singh Vs. Suba Singh - 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. - plainly, it-was not intended to allow a party who had failed to attack a decree passed against him by appeal or application for review to reopen the case in the execution court in contravention of the provisions of section 11, suits valuation act, 1887. 6. in india there was some conflict between the high courts on the point in issue. , enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. , and section 11, suits valuation act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits.harnam singh, j.1. chaudhry roop chand urges that the decree passed, in civil suit no. 16 of 1953 was a nullity for the reason that shri gian chand, sub-judge, who passed the decree for possession by pre-emption on payment of rs. 3,150/- had pecuniary jurisdiction up to rs. 1,000/- only.2. in my opinion, on principle and authority the decree passed in cavil suit no. 16 of 1953 cannot be regarded to be nullity.3. 'prima facie' defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the authority of the civil court to pass any decree, and such a defect cannot be cured even by consent of parties. in case the defect now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the court of first instance was coram non judice, and that its judgment and decision would be nullities.4. section 11, suits valuation act provides inter alia that notwithstanding anything in section 99, civil p. c., an objection that by reason of the overvaluation or the under-valuation of a suit the court of first instance which had no jurisdiction with respect to the suit exercised jurisdiction with respect thereto shall not be entertained by an appellate court except as provided in that section.that being the law, a decree passed by a court, which would have had no jurisdiction to hear a suit but for over-valuation or under-valuation, is not to be treated as, what it would be but for the section, null and void. in such a case an objection to jurisdiction based on over-valuation or under-valuation should be dealt with under section 11, suits valuation act and not otherwise.5. in this state of the law the decree passed by the sub-judge in civil suit no. 16 of 1953 cannot be regarded to be nullity. plainly, it-was not intended to allow a party who had failed to attack a decree passed against him by appeal or application for review to reopen the case in the execution court in contravention of the provisions of section 11, suits valuation act, 1887.6. in india there was some conflict between the high courts on the point in issue. in this, part of the country the general view was that it was not open to an executing court to question the validity of a decree on the ground that the court which made the decree had not pecuniary jurisdiction to make it. in this connection -- 'ghulam mohammad v. fazal nishan', air 1932 lah 289 (a), may be seen.7. in 'kiran singh v. chaman paswan', air 1954 sc 340 (b). venkatrama ayyar j. dealing with the point observed-'with reference to objections relating to territorial jurisdiction, section 21, civil p. c., enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. it is the same principle that has been adopted in section 11, suits valuation act with reference to pecuniary jurisdiction. the policy underlying section 21 and 90, civil p. c., and section 11, suits valuation act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits.' for the foregoing reasons, i find that the decree for possession by pre-emption passed in civil suit no. 16 of 1953 on payment of rs. 3,150/- was not a nullity though the sub-judge who passed the decree had pecuniary jurisdiction up to rs. 1,000/- only.8. no other point arises in execution second appeal no. 552 of 1955.9. in the result execution second appeal no. 552 of 1955 fails.10. as respondents have not appeared in these proceedings i make no orders as to costs.