SEKHARAN Vs. MEENAKSHI

JUDGEMENT

(1.) THE second appeal was admitted by Madhavan Nair, J. "notice on ground No. 10". THE learned Advocate General questions the correctness of piecemeal admission of second appeals like this. He draws my attention to a few decisions on the question. THE first of them is P. Lakshmi kutty Pillai v. P. Velayudhan Pillai (ILR. 1952 T. C. 385 ). Subramania Iyer, J. has discussed the various decisions on the question and has also considered the effect of R. 11 and 12 of O. XLI of the Code of Civil Procedure. Ultimately, the learned judge has considered two Full Bench decisions, one, of the Madras High court in Vattipalle Eswariah v. Vattipalle Rameswarayya (AIR. 1940 Mad. 483)and the other, of the Bombay High Court in Krishnaji Shrinivas Jalvadi v. Madhusa Appansa Ladaba (AIR. 1934 Bom. 207 ). In the Bombay decision the Full bench held that if the subject-matter of an appeal was severable, it was open to the judge to admit it and at the same time to restrict the grounds on which the appeal was to be heard. In the Madras ruling it was held that the court had no jurisdiction to admit an appeal in part and dismiss it in part, even if the appeal consisted of distinct and severable parts. Subramania Iyer, J. has held that in the case before him the conflict between the Madras and the Bombay High courts did not arise, because the subject-matter in that case was not severable in parts.

(2.) IN the Bombay case two survey numbers were involved; and Barlee, J. , who heard the appeal under R. 11, ordered notice to issue on one of the survey numbers, but said nothing about the other survey number. The learned judges of the Full Bench held that it was open to the judge who heard the appeal under R. 11 to dismiss the appeal in part and admit it in part; but, as the subject-matter of the appeal was not severable in parts, the judge could not restrict the grounds on which the appeal was to be heard. Ultimately, the full Bench held that Barlee, J. , did not dismiss the appeal as to one survey number, but said nothing about it and he admitted the appeal as to the other survey number. IN that situation, since the appeal was not dismissed regarding one survey number, the Full Bench held that the entire appeal could be heard. The full Bench also indicated that in the Bombay High Court there was, rightly or wrongly, a practice of admitting appeals in part. A reading of this decision impels me to think that the prevailing practice in the Bombay High Court was largely responsible to make the judges take such a course.

(3.) THUS, these decisions hold that an appeal cannot be admitted piecemeal Since the Bombay Full Bench decision was based more on the practice of that Court, I am inclined to accept the Madras view and hold that the appeal can be admitted or dismissed only as a whole, Ira this Court there is no general practice, as in the Bombay High Court, of admitting appeals in part or on some grounds in the memorandum of appeal, excepting that one judge or two judges occasionally resorted to that course. Therefore, the consideration of a settled practice that influenced the judges of the Full Bench of Bombay need not detain or deter me from expressing my opinion on the point of law. As the provisions of O. XLI R. 11 and 12 now stand, it is clear that an appeal has to be admitted or dismissed under R. 11 or 12 of the Code of Civil Procedure only as a whole and not in part. It is also desirable that no contrary practice overtakes us unawares.