(ALLAMPUTI) VENKATASUBBIAH Vs. CHUTTI VENKATASUBBAMMA

JUDGEMENT

(1.) My learned brother and myself Were divided in opinion as to the decision in this appeal, I being for allowing the appeal and toy learned brother for dismissing it. The question was argued as to whose judgment should prevail.

(2.) It has been a uniform and invariable rule of this Court to apply Section 98 of the Civil Procedure Code and to give effect to that judgment which confirms the decree of the lower Court, when the difference of opinion arises in appeals governed by Section 96 of the Code, The practice has been equally uniform to give effect under Clause 36 of the Letters Patent to the judgment of the senior Judge, when the Judges of the High Court are divided in opinion, when hearing appeals under Clause 15 of the Letters Patent.

(3.) Following this course, it is obvious that the judgment of my learned brother should prevail. But Mr. A. Krishnaswami Aiyar, the learned vakil for the appellant, has contended that the question has to be reconsidered in view of the observations of their Lordships of the Privy Council in Bhaidas Shivdas V/s. Bai Gulab A.I.R. 1921 P.C. 6. I shall first examine the relevant provisions of the Letters Patent and the Civil Procedure Code. Clause 15 of the Letters Patent provides for appeals to the High Court from judgments of a single Judge, or two or more Judges of the High Court. Clause 16 similarly provides for appeals to the High Court from the Civil Courts of the Presidency and all other Courts subject to its superintendence. Then comes Clause 36 and it enacts: Any function, which is directed to be performed by the High Court may be performed by any Judge, or by any Division Court, and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point.... If the Judges should be equally divided then the opinion of the senior Judge shall prevail.