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TMI Blog1931 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... e is as much a High Court as the single Judge himself. The Letters Patent declare that certain appeals would lie to the High Court : see Clause 11. The High Court consists usually of more than one Judge, and by the Letters Patent the High Court is to frame rules by which it is to be settled what kind of cases would go before what number of Judges. The Letters Patent contemplate that there may be appellate decisions in certain cases by a single Judge. In such cases they provide that a further appeal would lie to two or more Judges of the same Court. A Letters Patent appeal therefore is as much an appeal to the High Court as any other appeal. In any case, the Judges composing the Bench hearing the Letters Patent appeal are as much a High Court as Judges hearing, say, a first appeal from the judgment of a Subordinate Judge or a District Judge. The procedure to be applicable is that provided by Order 41, Civil P.C. excepting Rule 35: see Order 49. Rule 3, Civil P.C., last clause. 3. It is therefore clear, that the procedure before and at the hearing, of a Letters Patent appeal by a Bench of the High Court, and the delivery of the judgment, are all governed by Order 41, Schedule 1, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Civil Procedure Code itself. I find it extremely difficult to accept this interpretation although even if this interpretation be permissible, it would not make any difference in the end. As I have already pointed out, case 3 in which a review is allowed stands by itself and apart from cases 1 and 2. There is no reason to suppose that in interpreting the language by which case 2 has been described we should import some of the language employed in describing case 1. This method of reading case 2 in my opinion is inadmissible under the true rules of interpretation. 5. Assuming however that we are to qualify the word decree as used in the description of the second case by the words a decree provided for or passed under the provisions of the Civil Procedure Code, this would make no difference, for, as I have already pointed out the decree that is made by a Bench of the High Court on the hearing of a Letters Patent appeal is a decree made under the provisions of the Civil Procedure Code as applied by Section 117 of the same Code. I need not repeat that the procedure at the hearing and the method of deciding are all dictated by the Civil Procedure Code, namely, Schedule 1, Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on expressed is against the clear words of Section 632, Civil P.C. of 1882, which was then in force and which was not even quoted before the learned Judges. The second case reported in Ranjit Singh v. Maharaj Bahadur Singh A.I.R. 1918 P.C. 85 merely follows the earlier case. It appears that the correctness of the earlier decision was not contested before the learned Judges who decided the later case. I have already shown that Section 117, Act 5 of 1908, which takes the place of Section 632, Civil P.C. of 1882, clearly makes the Civil Procedure Code applicable to all cases coming before the High Court either on its appellate or original side. The decision of the Privy Council case in Sabitri Thakurain v. Savi A.I.R. 1921 P.C. 80, removes any doubts on the point. The Allahabad cases are therefore no longer any authority on the point. In the Madras case of Venkatasubbarayadu v. Sri Krishna Yachendralu [1917] 40 Mad. 651 two learned Judges held that a review of a judgment passed on the hearing of a Letters Patent appeal was permissible. The same view has been taken by a learned Judge of the Bombay High Court in Ratanchand Khimchand v. Damji Dharsey A.I.R. 1927 Bom. 232. 10. There ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 117 itself must only relate to original civil jurisdiction. We consider that the premises are inaccurate and the argument is unsound. As to the premises, Order 49, Rule 3, specifically refers to appellate jurisdiction in stating that O.41, Rule 35, shall not apply to the appellate jurisdiction of chartered High Courts. We also point to the language of Section 117 itself, which is perfectly general, and has nothing to indicate that its provisions were only intended to apply to the original civil jurisdiction of chartered High Courts. We conclude therefore that Section 117, applies the provisions of the Civil Procedure Code to chartered High Courts in. the exercise of their appellate civil jurisdiction including their jurisdiction in Letters Patent appeals. 15. But the question remains whether on the particular wording of Section 114, Civil P.C., that section is or is not intended to give a chartered' High Court jurisdiction to review a judgment made in Letters Patent appeal. 16. The subsection in question is Section 114 (b). which states: Subject as aforesaid, any person considering himself aggrieved (b) by a decree or order from which no appeal is allowed by this Code, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey cannot be ignored. We consider that these words did not find a place in this subsection accident-ally and that due weight must be assigned to them. 21. Now Sub-section (b), Section 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. 22. 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 Section 476-B, Criminal P.C., against an order of a subordinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight provide for an appeal and the result would be that the Court which made the judgment might review it even though an appeal had been-filed. This view then leads to a result contrary to what we conceive to be the plain intention of the section and accordingly we reject this view. We are therefore left with the conclusion that Section 114 is not intended to provide for the review of judgments passed in the exercise of jurisdiction derived from other laws and that an application for review of judgment would not lie in the present case. 25. It was argued that because the result of a Letters Patent appeal is a decree of the High Court, and all decrees of the High Court must be taken to be decrees under the Code therefore Section 114 will apply. But the drawing up of a decree is a mere matter of procedure and the right to apply for review is a right which like the right to appeal must be created by a definite provision of statute. We would stress the fact that although Section 114 refers to decree or order the review is a review of a judgment. And the judgment in a Letters Patent Appeal is a judgment passed in the exercise of jurisdiction granted by the Letters Patent and not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Ch. 47, Civil P.C. 29. By making such express provisions the legislature implied that the provisions for review would not apply to proceedings under other laws without such express provisions. The provision in Act 3 of 1926, the present Agra Tenancy Act, is similar. We now turn to consider the way in which different High Courts have dealt with this question. In the Allahabad Court the question first arose in Hafiz Muhammad Mohsin v. Sheo Prasad. The judgment merely stated that the objection prevailed that no application for review lay. The main argument was that Section 623 of the Code of 1882 did not apply as the right to apply for review was like the right to appeal and was created by statute and unless there was express provision permitting an application for review, a Court could not alter or modify its judgment, because it had become functus officio as soon as it had decided the appeal. In 1918, ten years after the present Civil Procedure Code came into force, this decision was followed in Kalyan Singh v. Allah Diya, but again no reasons were given. The practice of the Allahabad High Court therefore for twenty-six years has been that applications' do not lie f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 48 Cal.) it is stated: The real question is whether Order 41, Rule 10, applies to such appeals, as the High Court thought it did, and to this question alone their Lordships will proceed to address themselves. 33. There was therefore no question of the interpretation of Section 114 in that ruling. We may summarize our view of the question under reference by stating that, while the procedure of the Civil. Procedure Code does apply to the hearing of Letters Patent appeals and to the consequent decrees, the jurisdiction in the exercise of which the judgments are. made is derived from the Letters Patent, and not from the Code; the criterion in Section 114 (a) and (b) whether an appeal is allowed by the Code would not be introduced if the section were intended to apply to judgments passed in the exercise of jurisdiction not derived from the Code; and if the section were meant to apply to such judgments then the criterion would merely have been whether an appeal was allowed without reference to the Code; further, if the section were applied to such judgments the object of the section, to ensure that an application for review should not lie if an appeal has been filed, might be fr ..... 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