P S SATHAPPAN DEAD Vs. ANDHRA BANK LTD

JUDGEMENT

(1.) Interpretation of Section 104 of the Code of Civil Procedure (for short, 'the Code') vis-a-vis Clause 15 of the Letters Patent of the High Court of Madras is in question in these appeals. background FACTS :

(2.) Although these appeals involve common questions of law, the factual matrix of the matter would be noticed from civil appeal no. 689 of 1998.

(3.) The first respondent herein filed a suit against the appellant herein in the court of ii Addl. Subordinate Judge, Coimbatore which was marked as O. S. No. 403 of 1974. The said suit was decreed on or about 15.4.1976. An execution petition was filed by the first respondent-decree holder for executing the said decree. In the said execution proceeding for realization of the decretal amount the property belonging to the appellant herein was put to auction. The validity of the said auction came to be questioned by the appellant by filing an Execution Application on or about 8.10. 1979 praying therein for setting aside the court auction sale held on 26.9.1979 in respect of Ginning factory situate at Tirurppur named and styled Sree Krishna Ginning factory. The said application was marked as Executive Application no. 419 of 1979. The said application was dismissed by the execution Court on 10. 10. 1985 against which an appeal was preferred by the appellant which was also dismissed by a learned single judge of the Madras High court by a judgment and order dated 8.10. 1990. A Letters Patent Appeal thereagainst purported to be in terms of clause 15 of the Letters Patent of the Madras High Court was filed by the appellant which was dismissed by a full bench of the madras High Court by a judgment and order dated 22.8.1998 holding that in terms of sub-section (2) of Section 104 of the code, an appeal against an order passed by the Appellate Court under Order XVIII rule 1 read with Section 104 of the Code, was not maintainable. A certificate of fitness, however, in terms of Article 133 of the Constitution of India was prayed for by the appellant and granted by the said full bench. When the matter was placed before a Division Bench of this Court, it noticed a conflict of opinion between a decision of a 3-judge bench of this Court in new Kenilworth Hotel (P) Ltd. v. Orissa state Finance Corporation and Others and a two Judge-Bench in Resham Singh pyara Singh v. Abdul Sattar, on the one hand, and a constitution bench decision in gulab Bai and Another v. Puniya, on the other; and referred the matter to a constitution bench observing : "we are aware of the fact that Clause 15 of the Letters Patent applicable to Madras High court was similar to Clause 10 applicable to orissa High Court which was construed in the case of New Kenilworth (supra) This court did not, in New Kenilworth's case, consider the effect of the decision in Gulab bai's case (supra). Furthermore, reference in Clause 15 of the Letters Patent which excludes the applicability of the same in relation to a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a court subordinate to the superintendence of the High Court would prima facie indicate that it is only where the single judge is hearing an appeal from an appellate order of the court subordinate to it that the said clause 15 would not apply. In our opinion, the matter is not free from doubt, especially in view of the decision of the constitution bench in Gulab Bai's case [1966 (2) SCR 102] and it would be appropriate therefore that the papers are placed before Hon'ble the Chief Justice for referring the case to a larger bench, in view of not only the conflict in decisions which is stated to be there but also in view of the importance of the point in issue, namely, the effect of the provisions of Section 104 (2) vis-a-vis Clause 15 of the Letters Patent.