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TMI Blog1892 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... de, Sir Comer Petheram had ceased to be a member of this Court, and, following the usual practice of this Court, the application was heard by the Judge who was a party to the judgment, and was still a member of the Court, and he made the order which was questioned in this appeal. 3. The question which we have to decide depends upon the consideration of s. 10 of our Letters Patent, the statutes relating to the legislative powers of the Governor-General of India in Council, and of the Code of Civil Procedure, as amended. The Letters Patent applying to this Court were issued on the 11th June 1866, and consequently long prior to the Code of Civil Procedure with which we have to deal. It is not contested, and indeed it could not be, that the Governor-General in Council has power to make laws which this Court is bound to carry out and to observe. That is provided for by s. 22 of 24 and 25 Victoria, chapter 67, and by subsequent legislation, and that power of the Governor-General in Council is in terms reserved by s. 5 of our Letters Patent. The right of appeal is a right which is created by statute, or, as in this case, Letters Patent--the Letters Patent being an authority having the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the Legislature desires to create confusion and uncertainty, and to leave it in doubt as to whether it or its advisers knew what was the procedure required. 5. It is not very material in the present case to decide whether s. 206 applies or not. If it does not apply, the Court which has to exercise appellate civil jurisdiction must have an inherent jurisdiction to bring its decrees into accordance with its judgments, and our brother Tyrrell in that event passed his order in the exercise of the appellate jurisdiction of the Court within the meaning of s. 591 of the Code. The question before us really turns on the effect of the sections contained in chapter XLIII of the Code of Civil Procedure. Section 588 of the Code commences by enacting-- an appeal shall lie from the following orders under this Code and from no other such orders. Section 591 provides that, except as provided in this chapter no appeal shall lie from any order passed by any Court in the exercise of its original or appellate jurisdiction but, if any decree be appealed against, any error, defect or irregularity in any such order affecting the decision of the case may be set forth as a ground of objection in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together. If the sections contained in Chapter XLIII were to be applied to matters coming under Chapter XLV, that is, to matters arising in appeals to Her Majesty in Council, a difficulty would at once arise; for, although s. 588 limits appeals from orders under the Code to the orders specified in s. 588, we find on turning to Chapter XLV that, by ss. 601 and 611, for example, an appeal is given from certain orders made in India in cases falling under that chapter, and those orders are not orders which are included as orders from which an appeal may lie under s. 588 Section 611 provides a procedure by reference for the appeals from the orders referred to in that section. That section enacts:-- The orders made by the Court which enforces or executes the order of Her Majesty in Council, relating to such enforcement or execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the enforcement or execution of its own decrees. 8. I have consequently come to the conclusion that Chapter XLIII cannot he applied to orders made in appeals in cases which are under appeal to Her Majesty in Council. If that view be correct, an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, that I think the order which was passed by our brother Tyrrell when be decided to amend the decree in the case, was an order from which an appeal is excluded by Chapter XLIII of the Code of Civil Procedure. It was an order passed by a Judge not on an appeal, but in the matter of an appeal in this Court, and in the exercise of the appellate jurisdiction of this Court. 10. I would answer this reference by saying that an appeal did not lie under section 10 of the Letters Patent from the order of our brother Tyrrell. Douglas Straight, J. 11. I am entirely of the same opinion as the learned Chief Justice, and I have nothing to add. Syed Mahmood, J. 12. This reference assumes significance, because I think, though limited to this particular order of my brother Tyrrell dated the 21st December 1889, it raises, as the argument of the learned counsel for the parties has shown, some important questions of principle--important not only as questions of law, but also as questions relating to the practice of this Court and the practical working thereof. 13. It is in this view that desire to deliver a separate judgment by saying as the first observation therein, that I agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely, the case of Surla v. Ganga, I.L.R., 7 All., 875, and Raghunath Das v. Raj Kumar,: I.L.R., 7 All., 876, where my judgments were upheld by the whole Court, the turning point was that an order under section 206 being an unappealable order can be made the subject of the visitatorial functions of this Court under section 622 of the Code of Civil Procedure. When these cases were before the Division Bench. I had the misfortune of differing upon this point as to the non appealability of the orders made under section 206, because, if those orders can be made appealable to this Court this Court under the express prohibition of section. 622, had no power to interfere in revision. 19. If orders under s. 206 such as were concerned in the two cases referred to, when made either by Courts of original or appellate jurisdiction in the districts, are not appealable, it becomes necessary to investigate whether, as is contended by Pandit Sundar Lal the order of my brother Tyrrell, which is now under consideration is to be rendered appealable. The learned vakil has of course relied upon the solitary ground which he could urge namely the some-what broad and general provisions of s. 10 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various rulings which have been cited in the course of the argument. I am anxious to avoid referring to them not only because it would lengthen my judgment, but also because, so far as my own view in this case is concerned, it proceeds upon what I have said, and it is independent of the ratio adopted in those cases. 24. To hold that an erroneous order passed by a Judge of this Court, whether in the exercise of original civil jurisdiction or in the exercise of appellate civil jurisdiction under s. 206, is non-appealable to the whole of this Court, may appear at first sight to be a hardship; but it is not so. This Court under the Code of Civil Procedure is the Court of highest appeal in this part of the country and it is as such a Court and in no other capacity, that it exercises its powers of revision such as those contemplated by s. 622 of the Code and s. 25 of the Provincial Small Cause Courts Act. These powers can be exercised only by a Court of higher jurisdiction than the Court which made the erroneous order within the meaning of those sections. 25. A Judge of this Court when acting erroneously under s. 206 may be so acting, but his action cannot be made subject of re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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