Research › Search › Judgment

Kerala High Court · body

2003 DIGILAW 295 (KER)

Aniglase v. Ramalatha

2003-04-09

JAWAHAR LAL GUPTA, KURIAN JOSEPH, S.SANKARASUBBAN

body2003
Judgment :- Sankarasubban, J. This A.F.A. has been filed against the judgment of a learned single Judge in A.S.No.182 of 1994 of this Court. At the time of filing the A.F.A. decree in A.S.No.182 of 1994 of this court. At the time of filing the A.F.A decree in A.S.No 182 of 1994 was not produced. The office directed the appellant to produce the decree. But the appellant had not applied for copy of the decree and took up the contention that the production of the decree is not necessary. The office noted the decision reported in Damodaran v. Muraleekrishnan 2000 (3) K.L.T. 595, wherein it has been said that production of copy of the decree is mandatory while filing such an appeal. When the matter came before the Division Bench, it took the view that the decision requires reconsideration. It is in the above circumstances that the A.F.A. has been referred to the Full Bench. 2. The appeal is filed under Section 5(ii) of the High Court Act (hereinafter referred to as "the Act"). Section 5(ii) of the Act states thus: "5. Appeal from judgment or order of Single Judge:- An appeal shall lie to a Bench of two Judges from - (i) . . . . . . . . . . . . . . . . (ii) a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court”. Learned counsel for the appellant submitted that what is stated in Section 5(ii) of the Act is that the appeal is filed against the judgment of a single Judge and not against the decree. Hence, he agreed that production of the decree is not necessary. In the decision, Damodaran v. Muraleekrishnan - 2000(3) K.L.T. 595, the Bench held that production of copy of the decree is mandatory. The reason given by the Division Bench is as follows: "The High Court Act or the Rules of the High Court of Kerala does not provide any specific procedure for the filing of an appeal under S.5(ii) of the Act. R.43 of the Rules of the High Court of Kerala dealt with appeals under S.5(iii) of the Kerala High Court Act as it existed. That Rule makes O.XL1 and XLI A of the Code applicable to those appeals. R.43 of the Rules of the High Court of Kerala dealt with appeals under S.5(iii) of the Kerala High Court Act as it existed. That Rule makes O.XL1 and XLI A of the Code applicable to those appeals. But that rule has now become redundant in view of S.100A of the Code of Civil Procedure and the deletion of S.5(iii) of the High Court Act by Act 20 of 1987. That rule as such has no application to appeals under S.5(ii) of the High Court Act. But, O.XLIIA of the Code of Civil Procedure inserted in Kerala with effect from 9.6.1959, governs such appeals. There is nothing inconsistent with it in the Code of Civil Procedure as amended by Amendment Act 104 of 1976 which would enable us to overlook O.XLIIA of the Code as available in Kerala. Therefore, when an appeal is filed from a decree passed in an appeal under S.96 of the Code of Civil Procedure, that memorandum of appeal has necessarily to be accompanied by a certified copy of the decree appealed against". Thus the reasoning of the Bench is that Order XLIIA of the C.P.C. applies. Order XLIIA of C.P.C. deals with the procedure regarding appeals filed against decrees and orders of single Judges. The right to file appeal is derived from Section 5 (ii) of the Act. It says that the appeal is to be filed against the judgment. When Section 5(ii) of the Act is clear, it is not correct to state that the appeal is to be filed against the decree under the procedural provisions of Order XLIIA of C.P.C. The procedural provisions cannot guide substantive provisions. Hence, we are of the view that it is not necessary to produce copy of the decree when appeal is filed under Section 5(ii) of the Act and the decision in Damodaran v. Muraleekrishnan - 2000(3) K.L.T. 595 is not correct. 3. So far as the merit of the case is concerned, the suit was filed for specific performance of Ext.A1 agreement for sale. The plaintiff's case is that the defendant executed Ext.A1 agreement in his favour agreeing to sell the suit property for a consideration of Rs.12,000/- and an advance amount of Rs.8,000/- was paid on the date of agreement. The period fixed for the execution of the sale deed was six months. 4. The plaintiff's case is that the defendant executed Ext.A1 agreement in his favour agreeing to sell the suit property for a consideration of Rs.12,000/- and an advance amount of Rs.8,000/- was paid on the date of agreement. The period fixed for the execution of the sale deed was six months. 4. The defendant resisted the suit contending that though he executed Ext.A1 agreement in favour of the plaintiff, it was executed only as security. It was also contended that the property covered by the agreement is owned by the defendant and his wife jointly. 5. Originally, the trial court decreed the suit. On appeal the matter was remanded. After remand the court again decreed the suit. It is against that A.S.No.182 of 1994 was filed. From the judgment of the learned single Judge, it is clear that the only ground agitated was that there is nothing to show that the plaintiff was ready and willing to perform his part of the contract. The learned Judge has discussed this question from paragraph 5 onwards. It has been found from the averments in the plaint and in the evidence that the plaintiff has complied with the provisions of Section 16(c) of the Specific Relief Act. We agree with the learned single Judge. Hence, we don't find any merit in the appeal. Appeal is dismissed.