VAMAN RAVJI KULKARNI Vs. NAGESH VISHNU JOSHI

JUDGEMENT

(1.) THIS is a Letters Patent appeal against an order mad by Mr. Justice Norman sitting singly in an appeal from an order made by the District Judge of Belgaum. The appellant before us and another had filed a suit in the Court of the Joint Subordinate Judge of Gokak for accounts and redemption of a mortgage under the Dekkhan Agriculturists' Relief Act. The suit was dismissed by the trial Judge. It related to two lands, survey No.32 and survey No.29: It was alleged that plaintiff No.1 Ravji and his brother Bapuji, since deceased, had mortgaged the whole of survey No.32 and survey No.29, pot No.3, to one Datto Ramchandra Kalkundri. Defendants Nos. 1 to 3 were heirs of the mortgagee. They had transferred their mortgage rights in 1925 to defendant No.4. In darkhast No.54 of 1922 brought in execution of a decree obtained by one Vinayak Joshi against Ravji survey Nos. 29/3 and 32/3 were sold as belonging to Ravji, and were purchased by defendant No.5. Defendants Nos. 6 and 7 subsequently purchased the property from defendant No.5. Plaintiffs Nos. 1 and 2, who are father and son, claimed to have purchased the equity of redemption from the heirs of plaintiff No.1's brother Bapuji. It was alleged by them that survey No.32/3, which had been sold in the execution proceedings against Ravji as his property, did not really belong to him, and had actually fallen to the share of his brother Bapuji, and under the assignment of his interest by Bapuji in favour of plaintiffs Nos. 1 and 2 they were entitled to redeem the lands.

(2.) THE trial Court held that survey No.32/3 did belong to Ravji and that the plaintiffs were estopped by their conduct in connection with the sale proceedings from denying that the sale was binding on themselves and on defendant; No.9, the daughter and heir of Bapuji. In appeal the learned District Judge held that the plaintiffs had proved that survey No.32/3 did not belong to them at the time of the auction-sale in the darkhast of 1922, and that the question of estoppel did noti arise in the suit. He, therefore, set aside the decree of dismissal made by the trial Court and remanded the case to that Court for recording findings on the remaining issues, Nos. 7 to 13 Against this order there was a second appeal to this Court which was heard by Mr. Justice Norman sitting singly. In dealing with the question of estoppel the learned District Judge had found that Ravji at the time of the Court auction was really under the belief that his own share of survey No.32 was being auctioned, and that his conduct in connection with the sale was based on a genuine mistake, and therefore there could be no question of estoppel. Mr. Justice Norman held, following the decision in Sarat Chunder Dey v. Gopal Chunder Laha (1892) L. R. 19 I. A. 203, that the view1, taken by the District Judge on this point was wrong, and that it was unnecessary in order to create an estoppel that the person whose acts or declarations induced another to act must have been under no mistake himself or must have acted with an intention to mislead or deceive. He came to the conclusion that it was not open to the plaintiffs to say that survey No.32/3 did not belong to them. Subject to these remarks he confirmed the order of the District Court remanding the suit for disposal on the remaining issues. Against this order a Letters Patent appeal has been filed.

(3.) IN Bhaidas Shivdas v. Bed Gulab (1921) L. R. 48 I. A. 181 : s. c. 23 Bom. L. R. 623 there was a difference of opinion between two Judges of a High Court hearing an appeal from a decision of the High Court on the original side, and the question was whether the procedure laid down in Section 98 (2) of the Civil Procedure Code or that laid down in clause 36 of the Letters Patent should apply. It was contended before the Privy Council on behalf of the respondents in the appeal that the procedure laid down in clause 36 of the Letters Patent was modified by the Code of Civil Procedure and that by clause 44 of the Letters Patent there was an express provision making the Letters Patent subject to the legislative powers of the Governor General in Council. Their Lordships held that the provisions of clause 36 of the Letters Patent were not affected by Section 98 (2) of the Code of Civil Procedure, which provided a different procedure in those circumstances, and that clause 36 of the Letters Patent prevailed by virtue of Section 4 of the, Code of Civil Procedure. Clause 36 of the Letters Patent provided, in the opinion of their Lordships, a special form of procedure within the meaning of Section 4 of the Code of Civil Procedure, and the provisions of Section 98 (2) could not affect this special procedure. The same argument, in my opinion, applies in the present case. The appeal provided by clause 15 of the Letters Patent from a decision of a Judge of the High Court sitting singly to a bench of the High Court is a special jurisdiction within the meaning of Section 4 of the Code, and cannot be affected by the provisions of Section 104 which deal only with appeals under the Code, that is, appeals to the High Court from decisions of Courts subordinate to it. A Judge of the High Court sitting singly is not a Court subordinate to the High Court.