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2021 DIGILAW 549 (KAR)

Muniyappa v. R. Range Gowda

2021-04-09

B.VEERAPPA, RAJENDRA BADAMIKAR

body2021
ORDER : 1. The present appeal is filed by the appellants/Objectors against the order dated 17.04.2006 made in Execution No.15242/2004 on the file of the learned XXVIII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru city, rejecting the application filed by them under Order XXI Rules 97 to 101 of the Code of Civil Procedure for setting aside the judgment and decree passed in O.S. No.16586/2004. 2. When the present appeal came up before this Court on 19.3.2021, this Court has passed following order: “The paragraph8 of the Memorandum of Regular First Appeal depicts that the value of the suit schedule property is Rs.14,25,000/as valued by the decree holder in the suit. Therefore, the matter has to go before the appropriate Bench having the pecuniary jurisdiction. Office to check and proceed. In view of the above, office to proceed with the amended provisions of Section 5 of the Karnataka High Court Act, 1961 and in accordance with law.” 3. On verification, the office has put up a note, which reads as under: “In this connection, it is verified and found that, the amendment to provisions of Section 5 of Karnataka High Court Act 1961 was with effect from 27.08.2007. However, the present appeal is filed on 29.05.2006 i.e., prior to the said amendment. Before the amendment, the appeals having value of Rs.3,00,000/and above were posted before Hon’ble Division Bench in view of earlier Section 5(1) of Karnataka High Court Act and since, the value of present appeal is more than Rs.3,00,000/i.e., Rs.14,25,000/, the present appeal has to be heard by Hon’ble Division Bench. (In view of earlier Section 5(1) of Karnataka High Court Act)” 4. Subsequently, this Court by the order dated 01.04.2021 has observed that prima facie, the office is justified in mentioning in the office note that present appeal has to be heard by the Division Bench. However, at the request of learned counsel, the matter was adjourned to decide with regard to maintainability of the present appeal before the Division Bench. 5. Today, the matter has come up before the Court for orders on the office note regarding posting of the appeal before the Division Bench in view of earlier Section 5(i) of the Karnataka High Court Act, 1961. 6. We have heard the learned counsel for the parties on the office note. 7. 5. Today, the matter has come up before the Court for orders on the office note regarding posting of the appeal before the Division Bench in view of earlier Section 5(i) of the Karnataka High Court Act, 1961. 6. We have heard the learned counsel for the parties on the office note. 7. Sri Shaker Shetty, learned counsel for the appellants contended that in view of the amended provisions of Section 5(i) of the Act, all First Appeals against a decree or order passed in a suit or other proceedings, the value of subject matter which exceeds fifteen lakh rupees shall be heard by a Bench consisting of not less than two Judges of the High Court and other First Appeals shall be heard by a Single Judge of the High Court. Since in the present case, the value of the suit schedule property is Rs.14,25,00,000/for the purpose of jurisdiction, the appeal has to be heard by the learned Single Judge and not by the Division Bench of this Court. 8. Per contra, Sri S.P. Shankar, learned senior counsel for the Respondent No.1 contended that prior to amendment to Section 5(i) of the Act, all First Appeals against a decree or order passed in a suit or other proceedings, the value of subject matter, of which is rupees three lakhs or more, shall be heard by a Division Bench. He would further contend that Section 5(i) of the Act was amended w.e.f. 28.8.2007 by substituting the words “of which is rupees three lakhs or more” by words “which exceeds fifteen lakhs”. Admittedly, the present appeal was filed on 29.5.2006 i.e., prior to the amendment and therefore the Division Bench of this Court has jurisdiction to decide the present appeal and not the learned Single Judge. 9. In support of his contentions, learned senior counsel relied upon the following judgments: (i) State of Bombay –vs Purushottam Jog Naik reported in AIR 1952 SC 317 {paragraph7} (ii) Garikapati –vs Subbiah Choudhary reported in AIR 1957 SC 540 {paragraph 23(iv)} 10. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully. 11. It is an undisputed fact that the present appeal was filed by the appellants/Objectors against the order dated 17.04.2006 made in Execution No.15242/2004 on the file of the learned XXVIII Addl. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully. 11. It is an undisputed fact that the present appeal was filed by the appellants/Objectors against the order dated 17.04.2006 made in Execution No.15242/2004 on the file of the learned XXVIII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru city, rejecting the application filed by them under Order XXI Rules 97 to 101 of the Code of Civil Procedure for setting aside the judgment and decree passed in O.S. No.16586/2004. 12. Admittedly, the present appeal came to be filed on 29.5.2006. As on the date of filing the present appeal, Section 5(i) of the Act reads as under: 5(i) All First appeals against a decree or order passed in a suit or other proceedings, the value of subject matter, of which is rupees three lakhs or more shall be heard by a Bench consisting of not less than two Judges of the High Court and other First Appeals shall be heard by a Single Judge of the High Court. 13. Admittedly, paragraph8 of the memorandum of Regular First Appeal depicts that the value of suit schedule property is Rs.14,25,000/for the purpose of jurisdiction. Therefore, as on the date of filing the present appeal, the matter has to be heard by the Division Bench of this Court. However, learned counsel for the appellants contended that the present appeal has to be heard by the learned Single Judge of this Court and not by the Division Bench, in view of the amended provisions of Section 5(i) of the Act. 14. At this stage, it is relevant to state that by Karnataka Act No.26 of 2007, Section 5(i) of the Karnataka High Court Act was amended w.e.f. 28th day of August 2007. Section 5(i) of the Act after the amendment reads as under: “ 5(i) all First appeals against a decree or order passed in a suit or other proceedings, the value of subject matter, (which exceeds fifteen lakhs rupees) shall be heard by a Bench consisting of not less than two Judges of the High Court and other First Appeals shall be heard by a Single Judge of the High Court.” 15. By careful reading of Karnataka Act 26 of 2007, it clearly depicts that in Section 5(i) of the Act, the words, “of which is rupees three lakhs or more” are substituted by the words, “which exceeds fifteen lakh rupees” w.e.f 28th August 2007. 16. Further, Clause 5 of the Karnataka Act No.26 of 2007 is relating to pending cases, which clearly depicts that notwithstanding anything containing in this Act, all suits, appeals or revision and other proceedings connected therewith pending before the High Court, District Court, Court of Civil Judge, (Senior Division), Civil Judge (Junior Division) and small Causes Court, on the date of commencement of this Act shall be continued and disposed of by the respective courts in which they are pending as if the amendment made under this Act has not been made. 17. Therefore, we are of the considered opinion that for the appeals filed before this Court prior to the amendment came into force i.e., for the appeals filed before 28th August 2007, the amendment made under this Act is not applicable. 18. Our view is fortified by the judgment of the Hon’ble Supreme Court in the case of Garikapati –vs Subbiah Choudhary reported in AIR 1957 SC 540 , wherein the Hon’ble Supreme Court held at paragraph 23(iv) as under: 23 (iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal 19. Our view is also fortified by the judgment of the Hon’ble Supreme Court in the case of State of Bombay –vs - Purushottam Jog Naik reported in AIR 1952 SC 317 , wherein the Hon’ble Supreme Court held at paragraph7 as under: 7. The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England: see Craies on Statute Law, 5th Edn., p. 207; it is the law in America: see Crawford on Statutory Construction, p. 110; and it is the law which the Privy Council applied to India in Keshoram Poddar v. Nundo Lal Mallick [54 IA 152 at 155] . Bearing this in mind it will be seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments. Therefore, the moment the Act of 1952 was passed and Section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by Section 2, that is to say, the Act of 1950 now due to expire on the 1st of October, 1952. 20. In view of the aforesaid reasons, the contention of the learned counsel for the appellants that the present appeal has to be heard by the learned Single Judge cannot be accepted in view of the amended provisions of Section 5(i) of the Karnataka High Court Act, 1961 and Clause5 of the Karnataka Act No.26 of 2007 stated supra. 21. In view of the above, the present Regular First Appeal is maintainable before the Division Bench of this Court. Office note is upheld and the present appeal has to be heard by the Division Bench of this Court and not by the learned Single Judge. Ordered accordingly. Post this matter in the hearing list.