P L D 1959 (W (PLP)

Dates of hearing : 30-9-57 and 13-10-58. This judgment will dispose of three review petitions which have been filed in respect of orders which I and S. A. Rahman, C. J. passed in three connected Letters Patent Appeals on the 11th of January 1956. Those appeals were directed against the orders of Shabir Ahmad, J. in cases under section 38 of the Companies Act. We dismissed all the three appeals on the ground that they were time-barred. Orders had been announced by Shabir Ahmad, J. on the 24th of July 1954 and appeals had been filed on the 17th of August 1954. The limitation for a Letters Patent Appeal being 20 days, even after excluding days required for securing copy of the judgment, the appeals were time barred by one day. There was no application under section 5 of the Limitation Act before us for extension of time. The argument addressed to us was that limitation did not start on the 24th of July because the appellant had come to know of the orders under appeal only on the 27th of July and. it was from that date that limitation was to be reckoned. As on a reference to the record we found that 24th of July had been fixed for the announcement of orders, we repelled this plea. There was only one judgment disposing of all the three appeals, the parties being the same. Later, applications were put in for leave to appeal to the Supreme Court against our decision on the ground that the vacation of the High Court had begun on the 27th of July and as the High Court remained closed for [civil work up to the 2nd of October 1954, the appeals could have been filed even on the reopening of the High Court after the vacation and could not have become time barred on the 17th of August 1954. As this plea had not been,' raised before us in the appeals, we refused to grant leave. Applications have now been put in by the appellant for review of our judgment on the same ground which had been made the basis of the application for leave to appeal. It is urged that it is merely due to inadvertence that this point was not taken before us and that it was an error apparent on the face of the record. As Mr. Justice S. A. Rahman, the Chief Justice of the High Court, who was the other member of the Bench, is now a Judge of the Supreme Court, I have to decide the review applications sitting single Bench in view of Order XLVII, rule 5, of the Civil Procedure Code.

2. The respondent contests these petitions on three grounds. The first is that a review does not lie against a judgment delivered in a Letters Patent Appeal. The second is that the present review applications are by themselves time-barred. The third is that the applications should not succeed on the merits.

3. On the first question the relevant provision of law is section 114 of the C. P. C. which runs :- "

114. Subject as aforesaid, any person considering himself aggrieved- (a) by a decree or order front which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes. may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." On the question whether section 114 applies to a judgment delivered in a Letters Patent Appeal there was a difference of opinion between High Courts in pre-Partition India. The Allahabad High Court took the view in Abhilakhi v. Sada Nand ((1931) 53 All. 535 (F B)), overruling its previous decisions, that this section did not apply to a Letters Patent Appeal. This view was followed by the Patna High Court in Inder Mohan v. Ramkishun (A I R 1931 Pat. 409). On the other hand, the Bombay and the Madras High Courts had, in Ratan Chand v. Damji (A I R 1927 Born. 232) and Venkata Subbarayadu v. Sri Rajah Krishna (I L R 40 Mad. 651), taken the opposite view.

4. That section 114 does apply to proceedings in a High Court cannot be a matter of contest and was conceded even in the Allahabad case. By virtue of section 117 the provisions of the Civil Procedure Code apply to the Chartered High Courts also. The argument that this only implies the application of the Code to the original jurisdiction should be repelled on the simple ground that there is no such limitation in section

117. At the same time section 120 makes a separate provision for the application of the Code to the original civil jurisdiction of the High Court. According to that section only sections 16, 17 and 20 do not apply to the High Court when exercising original jurisdiction. This would mean that the other sections do apply and the specific reference in this section to original jurisdiction would also show that section 117 cannot be referring only to the original jurisdiction. I may also refer here to section 129 of the Civil Procedure Code which provides that the High Court can make rules in order to regulate its own procedure in the exercise of its original civil jurisdiction. The combined effect of these sections is that the Code applies to a High Court in exercise of its original as well as appellate jurisdiction except (1) that sections 16, 17 and 20 do not apply to the original jurisdiction and (2) that the application of the Code to original jurisdiction is subject to any rules framed by the High Court under section 129.

5. That the Code applies to the High Courts does not, however, settle the question. What is to be determined is whether there is something in the wording of section 114 which excludes its application to a judgment of a High Court in a Letters Patent Appeal. The section provides for three kinds of cases in its clauses (a), (b) and (c). We may overlook at present clause (c) which refers to the decrees of the Small Cause Court. The requirement of clause (a) and (this is the clause under which the present case falls) is that the decree of which review is sought should be one for which an appeal is provided by the Code. Clause (b) provides for a case where no appeal lies under the Code. Of course, clause (b) does imply that an appeal is) prohibited by the Code and it cannot apply to every case where C an appeal is not provided by the Code. For instance, appeals are not provided by the Code against orders and decrees of revenue Courts or of Special Tribunals, but it could not be argued that for this reason a review lies on account of section 114 against the orders of the Revenue Courts or the Special Tribunals. Clauses (a) and (b) mean that decree or order is of a kind the question of appeals against which is dealt with by the Civil Procedure Code. However, this is the only requirement of these two clauses. If the Code deals with the appeals against such decrees or orders and provides that appeals will lie in some cases and not in others, such decrees or orders would be within section

114. The learned Judges who constituted a majority in the Full Bench case in Abhilakhi v. Sada Nand, reached the conclusion that the decree or order mentioned in section 114 must necessarily be one which is passed in the exercise of a jurisdiction conferred by the Code. How they reached this conclusion will appear from the following extract from their judgment :- "In our opinion therefore the words in section 114 (b) `by this Code' must be taken into account and they cannot be ignored. We consider that, these words did not find a place in this subsection accidentally and that due weight must be assigned to them. "Now subsection (b), S. 114 has three elements : firstly a `decree' or `order' and secondly one `from which no appeal is allowed by this Code', and thirdly a `judgment'. "In the first place we shall consider whether the words `allowed by this Code' can be applied to the judgment in a Letters Patent Appeal. In our view the procedure in a Letters Patent Appeal like the procedure in any other civil appeal is governed by the Code. The decree which follows is a decree drawn up in accordance with the Code. But procedure is one thing and jurisdiction is another and we draw a clear distinction between procedure and jurisdiction. We consider that a Bench hearing a Letters Patent appeal derives its jurisdiction to hear the appeal from the Letters Patent and not from the Code because the Letters Patent provide that such an appeal should lie to a Bench and the Code makes no such provision. A somewhat similar case would be an appeal to the High Court under S. 476-B, Criminal Procedure Code, against an order of a subordinate Civil Court making or refusing to make a criminal complaint. The Civil Procedure Code governs the procedure in such an appeal. This is the procedure in this Court, and there are rulings to this effect of the Calcutta High Court reported in Nasaruddin Khan v. Emperor A I R 1927 Cal. 98 and Mahendra Nath Das v. Emperor A I R 1929 Cal. 428, but the appeal is not one "allowed by the Civil Procedure Code," it is an appeal allowed by section 476-B, Criminal Procedure Code, and the appellate Court derives its jurisdiction from that section. Another example is the probate and divorce jurisdiction of the High Court which is 'derived from the Letters Patent and from various Acts, though the procedure is in general regulated by the Civil Procedure Code. "In these cases in our opinion the Bench which hears the case or appeal does not derive its jurisdiction from the Civil Procedure Code, and for this reason the judgment of the Bench cannot be said to be a judgment allowed by the Civil Procedure Code. " Now if the judgment .in a Letters Patent Appeal is not a judgment " allowed by the Code " why should the criterion of whether an appeal is or is not allowed by the Code against its decree be introduced as the criterion for allowing a review of that judgment ? We consider that if S. 114 were intended to apply to judgments not allowed by the Code, the words ` by the Code ' would be omitted and the criterion would simply be whether an appeal was allowed or not."

6. With all respects I see no justification for applying the words "allowed by this Code " to the decree or order. "Allowed by this Code " applies only to the appeal, i.e. where an appeal D is provided by the Code against the decree or order of which review is sought. The learned Judges have, in the first place, applied the words " allowed by this Code " to the decree or order itself and then have reached a further conclusion that this means a decree passed in the exercise of a jurisdiction conferred by the Code. The only requirement of the section, as I have already stated, is that the decree or order should be subject to the provi sions of the Code relating to appeals. The Code does not pro vide for appeals only against such decrees or orders as are passed in the exercise of the jurisdiction conferred by the Code. Decrees passed in Letters Patent Appeals are apparently examples of such a kind of a decree. The jurisdiction to hear these appeals is conferred by the Letters Patent, yet it is not even possible to argue that an appeal against a decree or order passed in an appeal under the Letters Patent does not lie to the Supreme Court by virtue of the provisions of the Civil Procedure Code. Sections 109 and 110 provide for cases where an appeal will and where it will not lie. The obvious intention of section 114 is that in every case where an appeal is provided or is not provided by the Code F the decree or order should also be subject to review i.e., the pro visions as to appeal and review apply simultaneously although the filing of the one excludes the filing of the other. I am quite prepared to concede that a decree or order as mentioned in section 114 means a decree or order as defined in the Code, butt sections 109 and 110 also refer to a decree or order and if a decrees or order passed in Letters Patent Appeal is a decree or order G within the meaning of sections 109 and 110, then surely it is a decree or order within the meaning of the Civil Procedure Code. It should be quite clear that a decree or order within the meaning of the Civil Procedure Code need not at all be a decree or order which is passed in the exercise of the jurisdiction conferred by the Code. Let me also point out that while the jurisdiction to hear a Letters Patent is conferred by the Letters Patent, the procedures that is adopted is that of the Civil Procedure Code, as was conceded by the learned Judges and as was held by their Lordships of the Privy: Council in Mt. Sabitri Thakurain v. Savi (A I R 1921 PC80). The decree, therefore, which is prepared in a Letters Patent Appeal, is also prepared in accordance with the provisions of the Civil Procedure Code. However, even if this were not so, section 1141 would apply if the decree or order passed was within sections 109 and

110. I hold that an application for review does lie.

7. With respect to the objection that the applications are themselves time-barred some facts have to be stated. We delivered judgment in the Letters Patent Appeals on the 11th j January 1956. An application for leave to appeal against our judgment was filed on the 11th of April 1956. This application was accompanied by copies of judgments passed in all the three cases, although in the heading only L. P. A. No. 73 of 1954 was mentioned because the judgment had actually been written in that case and in the other two cases there was a short order referring to the judgment in L. P. A. No. 73 of 1954. The office returned the application for leave to appeal with the objection that there should be three applications. On the 12th of April 1956, as appears from the relevant register, three applications were filed. They were returned the same day because they were not accom panied by process fee. On the 23rd of April 1956, only one of the three petitions, i.e., the one relating to L. P. A. No. 73 of 1954 was refiled. There is an office note that the connected petitions had not been refiled. As far as it appears from the record, those two petitions were never refiled and the only petition that came up for hearing before us was C. M. 259/C of 1956 which related to L. P. A. No. 73 of 1954. We dismissed that petition on the 29th of April 1957 and on the next day, i.e., 30th of April 1957, the present applications for review were filed.

8. So far as the application for review which relates to L. P. A. No. 73 of 1954 is concerned, the petitioners' case obviously falls under section 14 (2) of the Limitation Act and the time that the petitioners spent in prosecuting the appeal can be excluded. Renew Application No. 20 of 1957, which relates) to L. P. A. No. 73 of 1954, is therefore, within time. So far as the other two petitions, Review Petitions Nos. 21 and 22 of 1957, are concerned, they were never refiled after they were returned on the 12th of April 1956. Therefore, neither section 14 applies to their cases nor is there any good ground for extension of time under section 5 of the Limitation Act. I would hold, therefore, that the two review applications (Nos. 21 and 22 of 1957) are time-barred.

9. On the merits the petitioner has a good and strong case. Apparently the Letters Patent Appeal was not time-barred because vacation had begun within the period of limitation and according to the notification of the High Court, the High Court is deemed to be closed during the vacation for the purpose of civil business, so that an appeal would have been even within time if it was filed on the opening of the High Court after the expiry of the vacation. The matter is quite apparent and in fact we would have held the appeal to be within time on this ground had the point been just even mentioned. For my part what happened was this. It was all the time present to my mind that during the vacation the Court remains closed, but the case before us related to an order passed in liquidation proceedings and Khwaja Nazir Ahmad is a counsel who specialises in liquidation cases. As Khwaja Nazir Ahmad did not refer to the vacation at all, I gained the impression that the ordinary rule of the High Court about closure of the business during the vacation did not apply to liquidation cases. After all that was a question only of the wording of the notification of the High Court. If it referred to all civil business, then liquidation cases would be included, but it could be differently worded. Actually on reference to the notification I find it refers to all civil business, but it was so obvious a point that 1 could not expect Khwaja Nazir Ahmad, a lawyer of such standing and one who has specialised in liquidation cases, to miss it if the vacation of the High Court covered liquidation proceedings.

10. As a result of what is said above, the, two applications for review (Nos. 21 and 22 of 1957) fail and are dismissed Review Application No. 20 of 1957 succeeds, because there is an error apparent on the face of the record inasmuch as we had not taken notice of the vacation of the High Court. There is no order as to costs in any of the cases.

11. I have only accepted the application for review. This means that the L. P. A. has again to be placed before a Division Bench of the High Court for decision. My acceptance of the application for review can only mean that the matter shall now be reconsidered. I cannot, sitting singly, pass a final order in the appeal itself. That has to be done by a Letters Patent Bench. K. M. A. Petition accepted.