GULABCHAND GAMBHIRMAL Vs. KUDILAL GOVINDRAM SEKSARIA AND ANOTHER

JUDGEMENT

(1.) IN this appeal by the plaintiff in the suit against a decree in appeal of a Division Bench of this Court dated 2 -12 -1918, after hearing the arguments of counsel for the appellant and the respondents, the Court announced that the preliminary objection of the respondent as to the incompetency of this appeal roust prevail and that this appeal would be dismissed and the reasons for this conclusion would be abated at a later date. Accordingly, I am stating my reasons in this judgment.

(2.) THE suit out of which this appeal arises was instituted on 6 -11 -1947, by the plaintiff against the respondents in the Original Side of the Indore State High Court to obtain a specific performance of a contract and in the alternative damages. The suit was tried by Sanghi J., who on 11 -6 -1948, made a decree in favour of the plaintiff with some modification in the form of relief claimed by him. Against this decision, the defendants filed an appeal to a Division Bench of this Court on 24 -8.1948. The plaintiff also preferred on 7.9.1948, a cross appeal against the decision of the trying Judge for his claim being decreed in full. These two appeals were filed under the Indore State Civil Procedure Code. The Division Bench accepting the defendant's appeal reversed the judgment and the decree of Sanghi J., and dismissed the plaintiff's suit, as well as his cross -appeal.

(3.) ON the basis of a Full Bench decision of this Court in Daulat Singh v. The State (Special Criminal Appeal No. 1 of 1949, dated 14 -4 -1949, reported in, 1 M.B. L.R. 229 : (A.I.R. 1950 M.B. 112 F.B.) Mr. Amin, who appeared for the defendant -respondents took the preliminary objection that as the judgment and decree appealed from were passed by the Division Bench on 2 -12 -1948 i.e., before the Act viii [8] of 1949 came into force and as S. 25 of the Act is not retrospective, this appeal is incompetent. There is no doubt that if the decision of the Full Bench in Daulat Singh v. The State,, 1 M.B.L.R. 229: (A.I.R. 1950 M.B. 112 F.B.) is correct this appeal cannot be entertained. But when this appeal first came up for admission before a Full Bench consisting of Shinde, Regeand Saigal JJ., my learned brothers apparently felt some doubt as to the correctness of that decision and admitted the appeal. After the admission of the appeal on 6 -10 -1949, Mr. Chitale, the learned counsel for the appellant made an application to the Court praying for the constitution of a larger Bench for the hearing of the appeal on the ground that the view taken by the Full Bench in Daulat Singh v. The State (1 M.B. L.R. 229:, A.I.R. 1950 M.B. 112 F.B.) that S. 25 High Court of Judicature Act has no retrospective effect requires reconsideration, and that other important questions of law also involved in the appeal. The application was accepted and this appeal has accordingly been heard by this Bench of five Judges. It may, however be mentioned in passing that the motion to refer a matter to a Full Bench or to a larger Bench should normally come from the Judges themselves and not from counsel when they find that they are fettered by a decision in a previous case which appears to them to require further consideration.