DEBI PRASAD PANDEY Vs. GAUDHARN RAI

JUDGEMENT

(1.) In this appeal there is difference of opinion between us as to the decree to be passed in the case. We have in fact differed on all the points involved in the appeal. The question is, what should be the decree of the Court? It was settled law, at least as far as this Court was concerned, that Section 98, Clause (2), Civil P.C. applied in such a case and not Section 28, Letters Patent, and that the decree appealed from was to be confirmed when there was no majority in favour of a reversal. A somewhat different situation has arisen by an amendment of Section 98,"Civil P.C. to which a Sub-clause (3) has been added by Act 18 of 1928. That sub-clause runs thus: Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.

(2.) The question is whether by addition of these words the legislature intended to remove the chartered High Courts, where their Letters Patents provide for a difference of opinion between the Judges, from the operation of Section 98, Civil P.C. The practice in force in the Calcutta High Court was that in case of appeals from the original side of that Court the provision of Section 36, Letters Patent, of that Court (corresponding to Section 28, Letters Patent, of this Court) applied, but in case of appeals from the Mofussil Courts which were governed by the Civil P.C. Section 98 of that Code applied: see Prafulla Kamini Roy V/s. Bhabani Nath Roy A.I.R. 1926 Cal 121, though contrary views had also been expressed. This was also the practice in this Court till the amendment of 1928. We have not been able to find out any case on the point since then. It is not necessary to elaborate the reason, on which the practice of the Calcutta High Court was based. In short the ground was that an appeal from the decision of a Judge in the original side was itself allowed by the Letters Patent and therefore the procedure prescribed therein applied, but appeals from Mofussil Courts were governed by the Civil P.C. and therefore Section 98 of the Code applied. Now the question is whether the amendment left the law as it was interpreted and simply re-affirmed it or altered it, making the Letters Patent control the provision of the Code. Much can be said from both points of view.

(3.) Since aforesaid amendment the only judicial pronouncement to which our attention has been drawn is the decision in Dhanaraju V/s. Batakissendas AIR 1929 Mad 641 where a Full Bench of the Madras High Court held that the effect of the amendment of the Code was to make Section 36, Letters Patent, of that Court (corresponding to Section 28 of our Letters Patent) apply to appeals from the decisions of the Mofussil Courts as well. There being no other decision to the contrary, we think that we ought to follow it. It has been held that the legislature has deliberately made the Letters Patents of the chartered High Courts in this respect override Section 98 of the Code. The was the view of the Allahabad High Court even prior to the amendment: Lachman Singh V/s. Ram Lagan [1903] 26 All 10.