Eswari Pillai v. Madhavan Pillai — 1968 DIGILAW 22 (MAD)

Judgement JUDGMENT :- The Plaintiff is the Appellant. She and the first Defendant are members of a Nair sub-tarwad. The suit property is of an extent of 5 acres 40 cents out of an extent of 11 acres included in that survey number. This property had been mortgaged by the main tarwad and the mortgage right came to vest in the sub-tarwad of which the plaintiff and the first defendant were members. But the first defendant sub-mortgaged that mortgage right in favour of one Chinnayyan Nadar. Thereupon the plaintiff filed O. S. No. 372 of 1118 M. E., impugning the sub-mortgage in favour of Chinnayyan Nadar and succeeded in that suit. Chinnayyan Nadar's appeal before the High Court of Travancore also failed. 3000 fanams had been deposited in those proceedings by the plaintiff as payable to the defendant in that suit in case he succeeded in establishing the validity of the sub-mortgage right in his favour. The plaintiff had also deposited another sum of Rs. 300/- and odd towards the mesne profits and on the basis of that continued in possession of the property sub-mortgaged to Chinnayyan Nadar and which sub-mortgage she succeeded in successfully impugning. As already mentioned, Chinnayyan Nadar's appeal failed and thereupon the plaintiff seems to have withdrawn the sums deposited by her into the Court. She also obtained delivery in pursuance of the decree obtained by her. 2. Thereafter she filed an earlier suit, O. S. No. 245 of 1956 against the present second defendant who by that time seems to have taken a sale from the present first defendant as well as some other members of the tarwad over this property. The suit was one for injunction and ultimately the plaintiff's suit failed on the ground that the plaintiff was not in possession. Subsequently she filed the suit, out of which the present second appeal arises, for possession of the property. Both the Courts have decided against the plaintiff and she has filed this Second Appeal. 3. Certain matters, I think, should be kept clear in one's mind in deciding this matter. The property itself belongs to the main tarwad. All that the sub-tarwad, of which the first defendant and the plaintiff are members, are entitled to is a mortgage right, the mortgage in this case meaning possessory mortgage. 3. Certain matters, I think, should be kept clear in one's mind in deciding this matter. The property itself belongs to the main tarwad. All that the sub-tarwad, of which the first defendant and the plaintiff are members, are entitled to is a mortgage right, the mortgage in this case meaning possessory mortgage. When the plaintiff filed O. S. No. 372 of 1118 M. E. against Chinnayyan Nadar and obtained possession, it can only be on behalf of the tarwad of which she and the first defendant are members. But in having done so she is entitled to be paid all the expenses which she might have incurred in that litigation before the other members of the sub-tarwad could claim that they should also be placed in possession of the mortgaged property. Therefore the present second defendant who has taken a sale deed from the first defendant and some others cannot stand in a better position than the first defendant and the first defendant himself cannot ask for possession of this property without paying the plaintiff the expenses which she has incurred in the earlier litigation against Chinnayyan Nadar. Till then the plaintiff is entitled to be in possession. It may be that it is not merely the first defendant but also the other members of the sub-tarwad that have got to pay the plaintiff her expenses in the earlier litigation and any other sums which she is entitled to before they can claim possession from the plaintiff. But even if all the members of the sub-tarwad want possession of this property that can be only by paying the plaintiff her expenses in the earlier litigation. In this state of affairs it appears that there was another suit for partition of the main tarwad properties themselves and a preliminary decree was passed therein. Though a final decree was passed that final decree seems to have been set aside. In that preliminary decree it seems to have been provided that various members of the tarwad who were in possession of the various properties belonging to the tarwad would continue in possession until final allotments are made. But as far as the suit property is concerned the main tarwad had only the equity of redemption and the sub-tarwad has the mortgage right. Therefore what can be allotted in that partition suit is only the equity of redemption. But as far as the suit property is concerned the main tarwad had only the equity of redemption and the sub-tarwad has the mortgage right. Therefore what can be allotted in that partition suit is only the equity of redemption. Of course if in the partition among the members of the sub-tarwad the mortgage right over the suit property is allotted to the member to whom the equity of redemption is allotted he might become the full owner. But for the present there is no question of the first defendant or the others who have executed the sale in favour of the second defendant having been allotted the equity of redemption over this property or of any of them having been allotted the mortgage right. Nor can one anticipate that it would be so allotted or that the mortgage right of the sub-tarwad would also be allotted to him. Till then the vendee that is the second defendant will not be entitled to any right. If ultimately 2nd defendant's vendors are allotted both the equity of redemption and the mortgage right in full over the whole of the suit property the second defendant can of course in due course get possession of the property. But if his vendors are allotted the whole of the equity of redemption it would be open to the second defendant to sue for redemption and possession of the whole of the property, offering to pay the mortgage amount and probably other amounts which may have to be paid to the plaintiff. If only a portion of the equity of redemption over the suit property is allotted to the second defendant's vendor he can also redeem that portion subject to the other persons, who are also entitled to the equity of redemption, being joined in the suit. Till that contingency of the allotment of the equity of redemption as well as the mortgage right over the suit property is finally settled the second defendant cannot be said to get any right as such under the sale in his favour. Till that contingency of the allotment of the equity of redemption as well as the mortgage right over the suit property is finally settled the second defendant cannot be said to get any right as such under the sale in his favour. The mere fact that the second defendant's vendors have purported to execute a sale deed in favour of the second defendant cannot clothe him with the title to the property or clothe him with the right to be in possession of the property till the plaintiff's rights which she has against the other members of the sub-tarwad are fully satisfied. In this view the plaintiff is entitled to succeed in the suit till the contingency above mentioned comes to pass. It is however urged on behalf of the respondents that it should be provided that the plaintiff cannot get possession if the second defendant pays the plaintiff the expenses which she has incurred in the earlier litigation. I do not think that the second defendant can succeed in maintaining the possession. The second defendant has not got a perfected title either in respect of the equity of redemption or in respect of the mortgage rights belonging to the sub-tarwad and therefore the second defendant, as far as this suit is concerned, should be deemed to be a person who is without a right to possession. 4. The second appeal is therefore allowed and there will be a decree for possession in favour of the plaintiff as prayed for. Parties will however bear their own costs in this Court No leave. 5-6. This second appeal having been posted on 12-1-1968 in pursuance of the letter of Mr. U. S. Ramakrishnan Advocate for the 2nd respondent dated 19-12-1967 and upon hearing the arguments of the aforesaid advocates and having stood over for consideration till this day, the Court made the following ORDER : In this case on 12th December 1967, the second appeal was allowed and an application for leave to appeal under Cl. 15 of the Letters Patent was refused. The matter has now been taken up for consideration at the request of the advocate for the respondent for reconsideration of the order refusing leave to appeal. The question for consideration, therefore, is, whether after leave to appeal has been refused, it is open to the Court to reconsider that order and grant leave. The matter has now been taken up for consideration at the request of the advocate for the respondent for reconsideration of the order refusing leave to appeal. The question for consideration, therefore, is, whether after leave to appeal has been refused, it is open to the Court to reconsider that order and grant leave. Reliance is placed on behalf of the respondent on the decision of the Andhra Pradesh High Court in In re Srinadham, AIR 1963 Andh Pra 18. Rule 105 of the Appellate Side Rules of the Andhra Pradesh High Court runs as follows :- "When an appeal against an appellate decree or order has been heard and disposed of by a Single Judge an application for leave to appeal under Clause 15 of the Letters Patent of the High Court shall be made orally and immediately after the judgment has been delivered." Before the Andhra Pradesh High Court it was urged that the order refusing leave to file an appeal under Clause 15 of the Letters Patent is not a part of the main judgment, but a separate order and that therefore, a review lies. In In re Sridhar Rao, AIR 1958 Andh Pra 60 a Bench of the Andhra Pradesh High Court held that Rule 95 of the Madras Appellate Side Rules (which is similar to Rule 105 of the Andhra Pradesh High Court) above referred to was mandatory and that it did not confer any discretionary power on the Court to excuse the delay. In the present case no such question of delay or the necessity of excusing the delay arises. But in regard to the contention that the order refusing leave was not part of the main judgment, but was a separate Order, a Bench of this Court in Kumarappa v. Official Receiver, AIR 1950 Mad, 216 held that the order refusing or granting leave cannot be independent of the judgment itself in so far as that order could only be passed on the merits of the appeal itself and as such it is not independent of the judgment but only a part of it. This decision approved of the decision of a Bench of the Bombay High Court in Balu Harshet v. Shrikrishna Govind, I. L. R. 54 Bom 331 : (AIR 1930 Bom 224) which also held that the order refusing leave is a part of the judgment itself against which there is no appeal under clause 15 of the Letters Patent. The effect of these decisions is that there can be no appeal not merely against the main judgment, but also against the order refusing leave except with the leave of the Judge who decided the second appeal. That there is no appeal against an order refusing leave has also been laid down in Ramanayya v. Kotayya, 57 Mad L. J. 398 : (AIR 1930 Mad 75). To the same effect was the decision in M. Govinda Rao, In Re. I. L. R. 59 Mad 293 : (AIR 1936 Mad. 134). 7. In Venkatasubbarayadu v. Sri Raja Krishna Yachendrudu Varu Bahadur, ILR 40 Mad 651 : (AIR 1917 Mad 670) it has been held that it is open to a Bench which hears an appeal under Clause 15 of the Letters Patent to review its own judgment. This decision followed the decision in Ratanchand v. Damji, AIR 1927 Bom 232 and was itself followed by a Bench of the Punjab High Court in Suba Singh v. Neki Kishan, AIR 1953 Punj 106. But the fact that it has been decided that Section 114, C. P. C. applies to a judgment rendered by a Bench of the High Court in an appeal under Cl. 15 of the Letters Patent does not help us to decide whether the order of a Single Judge refusing leave can be the subject-matter of a review. As I have already pointed out, it has been held that no appeal lies against an order refusing leave and in any case that is not the question for decision before me now. The learned Judge of the Andhra Pradesh High Court, has referred to the decision in Sabitri Thakurain v. Savi, AIR 1921 PC 80 where their Lordships of the Privy Council dealt with the contention that the Orders and Rules made under the Code of Civil Procedure have no application to appeals brought under the Letters Patent. The learned Judge of the Andhra Pradesh High Court, has referred to the decision in Sabitri Thakurain v. Savi, AIR 1921 PC 80 where their Lordships of the Privy Council dealt with the contention that the Orders and Rules made under the Code of Civil Procedure have no application to appeals brought under the Letters Patent. Their Lordships observed that there is no reason why there should be any general difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure in other matters and if this particular matter of security for costs is not dealt with in the orders and rules made under the powers of the Code, when it arises in connection with the jurisdiction created by the Letters Patent, Clause 15, no rules of procedure have been formulated with regard to it, though the High Court's power to regulate procedure in Letters Patent appeals is independent and has been preserved, and they went on to observe further that the Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of the original civil jurisdiction to which the Code is not to apply. Here again it would be noticed that the point dealt with is the procedure to be adopted in disposing of the second appeal under Clause 15 of the Letters Patent and also incidental matters during the pendency of the appeal under the Letters Patent, and it does not deal with the question as to whether the order refusing leave to appeal under Clause 15 of the Letters Patent is subject to any review or reconsideration. This decision cannot, therefore, also help us to decide the question now at issue. With great respect to that learned Judge, therefore, I do not think that it follows on the principle of the above decision that the provisions under Section 114. This decision cannot, therefore, also help us to decide the question now at issue. With great respect to that learned Judge, therefore, I do not think that it follows on the principle of the above decision that the provisions under Section 114. C. P. C. and Order 47, C. P. C. would apply and a review would lie against such an order, though Sec. 114, C. P. C. says that any person considering himself aggrieved by a decree or order from which no appeal is allowed by the Code, 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. That can only apply to the judgment as a whole. Of course, if an application for review of the judgment as a whole is made, the judgment may be subject to review. But the order refusing leave, which is a part of the same judgment, cannot be treated as a separate part of the judgment, independent of the main judgment and be subject to review, without the main judgment itself being reviewed. In other words, a judgment in a second appeal consists of a portion which either dismisses or allows the appeal in whole or in part and there is another part of the judgment, which grants or refuses leave. The part granting or refusing leave alone cannot be reviewed. The judgment as a whole may, of course, be subject to review. That would be the effect of the decision, earlier referred to, of this Court in AIR 1950 Mad. 216 . 8. There is also a practical difficulty in holding that the order refusing or granting leave to file a Letters Patent appeal is subject to review. An order either granting or refusing leave says nothing more than that either leave is granted or that it is refused. 216 . 8. There is also a practical difficulty in holding that the order refusing or granting leave to file a Letters Patent appeal is subject to review. An order either granting or refusing leave says nothing more than that either leave is granted or that it is refused. It is very difficult to bring such an order within the ambit of Section 114, C. P. C. or Order 47, C. P. C. The leave is applied for immediately after the judgment has been delivered and the mind of the Judge is fresh with all the facts of the case and, as it also forms part of the judgment, it would be unnecessary to state why he either refuses or grants leave and in such a case to say that a review of the order refusing or granting leave would lie would be to make that right of applying for review a meaningless formality. In the very decision of the Andhra Pradesh High Court referred to above it has been held that the learned Judge has carefully considered all aspects of the case and agreed with the concurrent finding of the Courts below and refused to grant leave, and that therefore, there were no sufficient grounds for granting a review. This would seem to be a good enough reason for refusing to grant a review of the judgment itself and not of the order refusing to grant leave, even though both of them are part of the same judgment. Practically in every case where an application for review of an order granting or refusing leave is made, that would be the result. In ILB 59 Mad 293 : (AIR 1936 Mad 134), the petitioner, whose second appeal had been dismissed by a Single Judge, applied for leave to file an appeal under the Letters Patent and it was dismissed stating that the Court could not find any ground for granting the leave asked for. The petitioner then filed another petition asking for review of this order. That was also dismissed. This could only be on the ground that no ground for review would be available. The petitioner then filed another petition asking for review of this order. That was also dismissed. This could only be on the ground that no ground for review would be available. We are not now concerned with the question as to whether a Bench can grant leave to appeal against a judgment of a Single Judge disposing of a second appeal in spite of the Single Judge's refusal of leave to appeal which was one of the points urged before and rejected by the Bench in that case; nor are we concerned with the question whether an appeal lies against an order refusing to grant leave, an aspect of the matter to which I have earlier referred to. I am only pointing out that a power of review of the order refusing or granting leave would be illusory. 9. The result of the above discussion is that while it may be open to the respondent in this case to apply for a review of the judgment, it is not open to this Court either to review or to reconsider the order refusing to grant leave to appeal under Clause 15 of the Letters Patent. Order accordingly.