A RANGASWAMI IYENGAR Vs. PATTAMMAL ALIAS RAJALAKSHMI AMMAL

JUDGEMENT

(1.) These are petitions for leave to appeal under Article 133(1) of the Constitution from the judgment of a Division Bench of this Court, to which one of us was a party, reversing the orders of Basheer Ahmed Sayeed, J., by which the learned Judge, on appeals had himself allowed them, set-ting wide the orders of the court of the learned Subordinate Judge of Chingleput and the execution sale held in September 1954, in favour of the first plaintiff. The first plaintiff and her daughter, the second plaintiff, who were the respondents, obtained a maintenance decree against the petitioner, the husband of the former and the father of the latter. The question of setting aside the sale in execution of the decree turned upon whether there was default on the part of the first plaintiff under Order 2i Rule 86 Civil-Procedure Code, and depended upon the true scope of the order dated 23-3-1955 of the Subordinate Judge in I. A. No. 230 of 1954 permitting her to bid and set off the total arrears due to both the plaintiffs under the decree. The executing court considered that it was a case of joint decree and that although the first plaintiff applied for permission to bid and set off and permission was granted to her alone, the amount that was intended to be set off was the entire amount and not the amount due to her alone. Basheer Ahmed Sayeed. J., differed from that court and on the view that it was not a joint decree, held that it was only the amount due to the first plaintiff that was Permitted to be set off. On further appeals, under the Letters Patent, the Division Bench felt that the question was not so much whether the decree was a joint decree and came to the conclusion, with reference to the terms of the affidavit and petition filed by the first plaintiff for herself and as next friend of her minor daughter for leave to bid and set off, that the entire amount due to both the plaintiffs under the decree was allowed to be set off. The result was the Division Bench restored the orders of the court of first instance upholding the execution sale, though for different reasons.

(2.) Leave to appeal was sought first under Article 133(1)(a) on the basis that the judgment of the Division Bench was a reversing judgment. The suit out of which the appeals arose having been instituted prior to January 26, 1950, the test of pecuniary value of the subject-matter is undoubtedly satisfied, the value at material times being above Rs. 10,000. Equally is it clear that the judgment of the Division Bench in point of fact reversed the orders of Basheer Ahmed Sayeed, J. Nevertheless, the point is whether the judgment of the Division Bench sought to be appealed against being that of the High Court, notwithstanding that it reversed the decision of Basheer Ahmed Sayeed, J., is not one of affirmance because the decision of the Court immediately below the High Court could only be that of the learned Subordinate Judge. In other words, what is the ambit and effect of "the decision of the Court immediately below" in Article 133(1). The same phraseology is also found in section 110 Civil Procedure Code. Though at first sight it may not appear so, Article 133(1) closely read as a whole, to our minds, postulates that where the High Court in relation to the decision appealed against is not the court of first instance, the nature of the judgment of the High Court appealed against as to whether it is one of affirmance or reversal, has to be ascertained for the purpose of the Article only with the reference to the decision of the court immediately below it and not to the judgment of a single Judge of the High Court. This position is necessarily, in our opinion, explicit in the words "the decision of the Court immediately below" and is irresistible from the set up of the High Court under the Constitution and the provisions of the Civil Procedure Code as to the gradation of Civil Courts and the nature of the appellate jurisdiction of the High Court under the Letters Patent.

(3.) Under Article 216 of the Constitution, the High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint and under Article 215 every High Court shall be a court of record. Under Article 227, the High Court shell have superintendence over all courts and tribunals throughout the territories in relation to which it exercises its jurisdiction. The next Article deals with the power of the High Court to withdraw to its file any case pending in a court subordinate to it on the grounds mentioned therein. Chapter VI of Part VI of the Constitution contains provisions regarding courts subordinate to High Courts. A scrutiny of these articles makes it clear beyond doubt that the High Court functions as such and a single Judge sitting in second appeals is as much a High Court as a Division Bench disposing of appeals under the Letters Patent from judgments in such second appeals. There is no warrant or room in the provisions of the Constitution to refer a Judge of the High Court as a Court below that court whatever the nature of the jurisdiction he may exercise at a particular time or in a case or appeal. We think therefore, that "the court immediately below" in Article 133(1) refers to a Court which is subordinate to the High Court. This view is further supported by the provisions of the Civil Procedure Code. That the same words in section 110 of the Code refer only to courts subordinate to the High Court is clear from a reference to section 3 of the same Code which pro-vides for gradation of Courts subordinate to the High Court. Nowhere in the Code is any provision made for an appeal from a single Judge of the High Court to a larger Bench of Judges of this Court. Sections 113 and 115 of the Code make it further clear that "the court immediately below" has reference to the Court only subordinate to the High Court. The provision for appeals from the judgments of a single judge under clause 15 of the Letters Patent in the classes of cases mentioned therein does not certainly in itself, and it has never been held, so, have the effect of an appellate Court, as such, within the High Court.