THIRUMANGALATH NELLIOTAN AMMU Vs. THIRUMANGALATH NELLIOTAN GOVINDAN NAIR

JUDGEMENT

(1.) An interesting and fairly important question has been raised by Mr. A. Achuthan Nambiar, the counsel of the second respondent, as a preliminary objection. A few facts may be stated to appreciate the question.

(2.) The second appeal came up for admission before Velu Pillai J. along with a petition for injunction. My learned brother dismissed the second appeal in limine on 27th June 1962 observing that there was no ground for admitting; and he also dismissed the injunction petition. On 29th June a verified petition, C. M. P. No. 4588 of 1962, was filed under S.151 of the Code of Civil Procedure praying that the second appeal might be treated as not requiring admission or that the earlier order might be reviewed under the inherent powers of the High Court. On 2nd July Velu Pillai J. passed an order on the docket of the injunction petition (C. M. P. No. 4397 of 1962) that since he formed an opinion about the case and some of the averments therein, he did not wish to hear the petition; and directed the petition to be posted on 3rd July before another Judge. However, I find another order by Velu Pillai J. dated 10th July on the same petition to the effect that since passing the above order, Shri. V. R. Krishna Iyer, the counsel of the appellants, represented to the learned Judge that there was a prayer for review also in C. M. P. No. 4588 of 1962. Consequently, the learned Judge directed the petition to be posted before him when he next sat single. The petition, I mean C. M. P. No. 4588 of 1962, came before Velu Pillai J. on 17th July; and my learned brother passed the following order:

(3.) Thus ended the second stage; and thee of, a stage commenced when the appellants filed C. M. P. No. 6953 of 1962 and R. in No. 30 of 1962 on 5th October 1962. The miscellaneous petition was for leave to appeal to a Division Bench against the dismissal of the second appeal; and the review petition was also for reviewing the order dismissing the second appeal in limine. Velu Pillai J. dismissed the miscellaneous petition, but allowed the review petition on 9th November 1962 observing that when the second appeal came up for admission, the learned Judge thought that there was no ground to admit; that the appellants' counsel moved C. M. P. No 4588 of 1962 on the ground that the material findings of the courts below being not concurrent, the second appeal need not be posted for admission; that the learned Judge felt that under O.41 R.11 of the Code of Civil Procedure the second appeal could be dismissed; and that on considering the matter afresh, the learned Judge felt that the original order dismissing the second appeal in limine was not correct, for there were points on which the findings of the courts below were not concurrent and a question of law also arose. The learned Judge observed further that no notice was necessary on the review petition, as the matter was "at a very preliminary stage". In the result, Velu Pillai J. allowed the review petition without notice to the respondents and admitted the second appeal.