GANPAT Vs. RAM DEVI

JUDGEMENT

(1.) THE two significant questions succinctly formulated in the Reference Order, which call for determination by this Full Bench are in the following terms:-

(2.) IT is evident from the above that the issues aforesaid are pristine legal ones and, therefore, any reference to the facts of the case is, indeed, unnecessary. It suffices to mention that they arise at the very threshold at the stage of the admission of innumerable Regular Second Appeals in this Court in view of the radical amendments introduced in S. 100 by the Code of Civil Procedure (Amendment) Act, 1976.

(3.) TO appreciate the issues in a correct perspective some reference to the legislative background of the two provisions appears inevitable. The history of the Civil P. C. in India now goes back beyond a century. The real predecessor of present S. 100 of the Civil P. C. was S. 372 of the Civil P. C. 1859 (Act No. 8 of 1859 ). It was followed by the Code of Civil Procedure, 1877, but its provisions were almost the same as those of the later Code of 1882, wherein S. 584 sharply corresponds to the unamended provisions of S. 100 of the Civil P. C. 1908. Substantial and material changes to the Code were envisaged in the Fifty--Fourth Report of the Law Commission. In particular, the Law Commission considered the right of second appeal under S. 100 and after study in depth thereof (Reference in this connection may be made to pages 74 to 93 of the Report, 1973) recommended the virtual re--drafting of S. 100. The Code of Civil Procedure (Amendment) Bill, 1974 by and large was drafted on the recommendation of Law Commission. In the statement of objects and reasons thereof, it was noticed with reference to section 100 that second appeals were now to be allowed only on such questions as are certified by the High Courts to be substantial questions of law. The Bill aforesaid was ultimately enacted as the Code of Civil Procedure (Amendment) Act, 1976 and the amended S. 100 is in the following terms:-