Dharam Chand and anr. Vs. Ram Chand 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. - 5. on behalf of the petitioners it is urged that the lower appellate court failed to see that the authorities relied upon have no bearing on the question as to what is the meaning of 'assignee' within the purview of order 22, rule 10 of the code. so far as the mortgagees are concerned, they did not go in appeal against the order passed and so they are satisfied with the amount awarded.order1. this is a revision against an order of the lower appellate court refusing to grant an application under o. 22, r. 10, civil p. c. (hereafter referred to as the code), of the successful pre-emptors to be substituted for the original vendee who had brought a suit for redemption against the mortgagees. the facts as are necessary may be stated as under:--the property in dispute was mortgaged with ram chander, khubi and kishan. the owners sold the smae to badri parshad, plaintiff in the suit out of which the present revision has arisen. badri parshad filed a suit against the mortgagees for possession of the property by way of redemption. a preliminary decree for redemption was passed on payment of rs.1,850/- on 12th august, 1966, and it was directed that the payment shall be made within six months.2. meanwhile dharam chand and mst. shanti brought two suits for possession of their respective shares by pre-emption, which were decreed on 6th august, 1968. as a result of this, in law, they got 'substituted' for badri parshad so far as the original sale by the owners was concerned. they then filed an application under order 22, rule 10 of the code to be substituted for badri parshad in the suit.3. a number of objections were taken and three issues were settled. all these issues were found in favour of dharam chand etc. and the application was granted. on an appeal filed by the mortgagees, the lower appellate court reversed the finding of the court below on issue no. 1, which was as follows:--'whether the petitioners are assignees of badri parshad plaintiff?'4. relying upon shamas din v. sarfaraz, 1911 pun lr 960 and sharif hussain v. nur shah, air 1929 lah 589, it was held that the right of pre-emption is one of substitution and it cannot therefore, be said that the successful pre-emptors are representatives of, or claim under the original vendee. in view of that it was held that the petitioners were not assignees within the meaning of o. 22, r. 10 of the code. dharam chand etc. have filed this revision.5. on behalf of the petitioners it is urged that the lower appellate court failed to see that the authorities relied upon have no bearing on the question as to what is the meaning of 'assignee' within the purview of order 22, rule 10 of the code. in sharif hussain's case, air 1929 lah 589 (supra) all that was said was that if there is a decree obtained against a vendee for a declaration, the successful pre-emptor is not bound by that decree, because he does not claim under him in that sense. the head note (a) in sharif hussain's case runs as under:'the doctrine of lis pendens is applied to things coming into existence during the pendency of the suit and not where there is an existing right prior to the suit. in a case where the right of pre-emption had accrued before the declaratory suit was instituted and pre-emptors had also obtained their decree for pre-emption long prior to the declaratory suit being instituted the doctrine of lis pendens had no application.'in this connection, it was observed that the right of pre-emption is one of substitution and in that sense the pre-emptor does not claim under the vendee.6. one thing is very clear that being substituted for the vendee, the equity of redemption now vests in dharam chand etc. and in that capacity they can certainly bring a suit seeking possession by way of redemption. now what they are trying to do is that whatever proceedings have been taken by the vendee, for whom they have been substituted, they are prepared to be bound by the same. they do not challenge the amount that they were directed to pay to the mortgagees. so far as the mortgagees are concerned, they did not go in appeal against the order passed and so they are satisfied with the amount awarded. all that dharam chand etc. want to do is their substitution for the original vendee so that they can redeem the mortgage by making the payment and the decree is made final. there can be no sense in the multiplicity of the proceedings by forcing the successful pre-emptors to file a separate suit in which the same matter shall have to be gone into all over again. the words used in order. 22, rule 10 of the code are-'in other cases of 'an assignment creation or devolution of any interest................'7. these words have been used in a very wide sense and cover a number of different matters. there are a number of decided cases in which during the pendency of the suit, if the mortgagee or the mortgagor becomes insolvent, the receiver has a right to be substituted under this order. see in this connection karim bux v. khesa, air 1935 lah 316; p. ammanna v. p. ramakrishna rao, air 1949 mad 886 and kala chand banerjee v. jagannath marvari, air 1927 pc 108. the very object of order 22, rule 10 would be frustrated if the words used are interpreted in a narrow sense. no decided case was brought to my notice dealing with the case of a pre-emptor but the very fact that he gets substituted for the original vendee, would go to show that all rights that were conferred on the original vendee under the sale-deed had come to be developed on the successful pre-emptor. in that view of the matter, i have no hesitation in holding that the successful pre-emptors in this case have a right to be substituted for the plaintiff and continue the suit from the stage it had reached when the application under order 22, rule 10 of the code was filed.8. for the aforesaid reasons i accept this revision, set aside the order of the lower appellate court and restore that of the trial court. parties will appear in the trial court on 30th august, 1971. records will be sent back immediately. no order as to costs.9. revision allowed.

Judgment:
ORDER

1. This is a revision against an order of the lower appellate Court refusing to grant an application under O. 22, R. 10, Civil P. C. (hereafter referred to as the Code), of the successful pre-emptors to be substituted for the original vendee who had brought a suit for redemption against the mortgagees. The facts as are necessary may be stated as under:--

The property in dispute was mortgaged with Ram Chander, Khubi and Kishan. The owners sold the smae to Badri Parshad, plaintiff in the suit out of which the present revision has arisen. Badri Parshad filed a suit against the mortgagees for possession of the property by way of redemption. A preliminary decree for redemption was passed on payment of Rs.1,850/- on 12th August, 1966, and it was directed that the payment shall be made within six months.

2. Meanwhile Dharam Chand and Mst. Shanti brought two suits for possession of their respective shares by pre-emption, which were decreed on 6th August, 1968. As a result of this, in law, they got 'substituted' for Badri Parshad so far as the original sale by the owners was concerned. They then filed an application under Order 22, Rule 10 of the Code to be substituted for Badri Parshad in the suit.

3. A number of objections were taken and three issues were settled. All these issues were found in favour of Dharam Chand etc. and the application was granted. On an appeal filed by the mortgagees, the lower appellate Court reversed the finding of the Court below on issue No. 1, which was as follows:--

'Whether the petitioners are assignees of Badri Parshad plaintiff?'

4. Relying upon Shamas Din v. Sarfaraz, 1911 Pun LR 960 and Sharif Hussain v. Nur Shah, AIR 1929 Lah 589, it was held that the right of pre-emption is one of substitution and it cannot therefore, be said that the successful pre-emptors are representatives of, or claim under the original vendee. In view of that it was held that the petitioners were not assignees within the meaning of O. 22, R. 10 of the Code. Dharam Chand etc. have filed this revision.

5. On behalf of the petitioners it is urged that the lower appellate Court failed to see that the authorities relied upon have no bearing on the question as to what is the meaning of 'assignee' within the purview of Order 22, Rule 10 of the Code. In Sharif Hussain's case, AIR 1929 Lah 589 (supra) all that was said was that if there is a decree obtained against a vendee for a declaration, the successful pre-emptor is not bound by that decree, because he does not claim under him in that sense. The head note (a) in Sharif Hussain's case runs as under:

'The doctrine of lis pendens is applied to things coming into existence during the pendency of the suit and not where there is an existing right prior to the suit. In a case where the right of pre-emption had accrued before the declaratory suit was instituted and pre-emptors had also obtained their decree for pre-emption long prior to the declaratory suit being instituted the doctrine of lis pendens had no application.'

In this connection, it was observed that the right of pre-emption is one of substitution and in that sense the pre-emptor does not claim under the vendee.

6. One thing is very clear that being substituted for the vendee, the equity of redemption now vests in Dharam Chand etc. and in that capacity they can certainly bring a suit seeking possession by way of redemption. Now what they are trying to do is that whatever proceedings have been taken by the vendee, for whom they have been substituted, they are prepared to be bound by the same. They do not challenge the amount that they were directed to pay to the mortgagees. So far as the mortgagees are concerned, they did not go in appeal against the order passed and so they are satisfied with the amount awarded. All that Dharam Chand etc. want to do is their substitution for the original vendee so that they can redeem the mortgage by making the payment and the decree is made final. There can be no sense in the multiplicity of the proceedings by forcing the successful pre-emptors to file a separate suit in which the same matter shall have to be gone into all over again. The words used in Order. 22, Rule 10 of the Code are-

'In other cases of 'an assignment creation or devolution of any interest................'

7. These words have been used in a very wide sense and cover a number of different matters. There are a number of decided cases in which during the pendency of the suit, if the mortgagee or the mortgagor becomes insolvent, the receiver has a right to be substituted under this Order. See in this connection Karim Bux v. Khesa, AIR 1935 Lah 316; P. Ammanna v. P. Ramakrishna Rao, AIR 1949 Mad 886 and Kala Chand Banerjee v. Jagannath Marvari, AIR 1927 PC 108. The very object of Order 22, Rule 10 would be frustrated if the words used are interpreted in a narrow sense. No decided case was brought to my notice dealing with the case of a pre-emptor but the very fact that he gets substituted for the original vendee, would go to show that all rights that were conferred on the original vendee under the sale-deed had come to be developed on the successful pre-emptor. In that view of the matter, I have no hesitation in holding that the successful pre-emptors in this case have a right to be substituted for the plaintiff and continue the suit from the stage it had reached when the application under Order 22, Rule 10 of the Code was filed.

8. For the aforesaid reasons I accept this revision, set aside the order of the lower appellate Court and restore that of the trial Court. Parties will appear in the trial Court on 30th August, 1971. Records will be sent back immediately. No order as to costs.

9. Revision allowed.