Rajamannar, C.J. -
(1.) THIS is an application for leave to appeal to the Supreme Court of India against the decree and judgment of this Court in A. S. No. 2 of 1947 dated 24 -8 -1951. The petitioners are defendants 1 to 4 in O. S. No. 47 - of 1945 on the file of the Court of the Subordinate Judge of Kakinada. The suit was instituted by respondent 8 for partition of certain items of im -moveable property and for delivery of possession to -rum of a fourth share in the first item and a half share in the second and third items. The petitioners supported the plaintiff's claim. Petitioner 1 claimed for himself a fourth, share in item 1 and a half share in items 2 and 3, while petitioners 2 to 4 claimed a 12th share in the first item alone. The contesting defendants were defendants 5 to 11. The Subordinate Judge passed a preliminary decree -for partition, but on appeal by defendants 5 to 11 this Court reversed the decision of the Court below and dismissed the suit in toto.
(2.) WHEN this application originally came on before Satyanarayana Rao and Chandra Keddi JJ. Who had disposed of the appeal it was found that the value of the subject -matter of the suit was over Rs. 10,000 but less than Rs. 20,000. The value of the subject -matter of the proposed appeal was above Rs. 20,000 according to petitioners and below Rs. 20000 according to the respondents, though presumably it was above Rs. 10000. The respondents raised the objection that the petitioners were -not entitled to leave, because the case did not fulfil the pecuniary requirements of Article 133 of the Constitution. The petitioners, on the other hand, contended that by reason of Article 135 of the Constitution they had a right of appeal though the value was below Rs. 20000, because the value was over Rs. 10000 and they would have had a right of appeal under Sections 109 and 110, Civil P. C., as they stood before the Constitution. The learned Judges thought that as the question was of some importance the matter should be considered by a Pull Bench. Before dealing with the contentions on either side it is useful to refer to the statutory provisions governing the rights of appeal against decrees, judgments and final orders of a High Court to a higher Court. Under Clause 39, Letters Patent an appeal lay to the Privy Council from any final judgment, decree or order of the High Court in any matter not being of criminal jurisdiction, provided 'inter alia' that the sum or matter at issue was of the amount or value of not less than Rs. 10000. The corresponding provision is found in Sections 109 and 110, Civil P. C. A new Court was created in India, called the Federal Court, by the Government of India Act, 1935, on which was conferred a limited appellate jurisdiction in respect of judgments, decrees and final orders of a High Court. Under Section 205, sub -e. (1) an appeal lay to the Federal Court from any judgment, decree or other final order of a High Court if the High Court certified that the case involved a substantial question of law as to the interpretation of the Government of India Act. 1935 or any Order in -Council made thereunder. This provision did not in any way affect the appellate jurisdiction of the Privy Council. The appellate jurisdiction of the Federal Court was enlarged by Act 1 of 1948 passed by the Dominion Legislature. This Act, called the Federal Court (Enlargement of Jurisdiction) Act, 1947, came into force on 1 -2 -1948. From that day an appeal Jay to the Federal Court from any Judgment, decree or final order of a High Court in a civil case from which a direct appeal could have been brought to His Majesty in Council either with or without special leave if that Act had not been passed. From that day no direct appeal lay to His Majesty in Council either with or without special leave from any such. Judgment, decree, or final order. If an appeal could have been brought to His Majesty in Council without special leave under the provisions of the Civil Procedure Code, .1908, in any case, then an appeal lay to the Federal Court without special leave of the Federal Court. But in other cases an appeal lay with the special leave of the Federal Court, Under Section 6 of the Act it was enacted that the provisions of the Civil Procedure Code, 1908, shall from that day have effect in relation to an appeal from a judgment to which that Act applied as if in the said provisions, for all references to His Majesty in Council there had been substituted references to the Federal Court.
In 1949 the Constituent Assembly passed an Act called the Abolition of Privy Council Jurisdiction Act which came into force on 10 -10 -1949. The jurisdiction of His Majesty in Council to entertain and dispose of appeals and petitions from or in respect of any judgment, decree or order of any Court or Tribunal (other than the Federal Court) v within the territory of India including appeals and petitions in respect of criminal matters ceased. From that day, on the Federal Court was conferred in addition to the jurisdiction conferred on it by the Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947 the jurisdiction to entertain, and dispose of appeal and petitions which His Majesty in Council had, toy virtue of His Majesty's prerogative or otherwise immediately before the appointed day. It was provided that for all references to His Majesty in Council there should be substituted references to the Federal Court. The Federal Court ceased to exist on the coming into force of the Constitution, and the Supreme Court came into being. On the same day on which it came ino force, namely, 26 -1 -1950, the President made an order under Clause (2) of Article 372 of the Constitution called the Adaptation of Laws Order, 1950. Section 3 of this Order runs thus:
"As from the appointed day the existing Central Jaws mentioned in the schedules to this order shall, until repealed or amended by a competent legislature or other competent authority, have effect subject to the adaptations and modifications directed by those schedules or if it is so directed shall stand repealed."
(3.) IN the portion of the schedule relating to the Code of Civil Procedure for Rs. 10000 in Section 110 of the Code, Rs. 20000 was substituted. This was evidently to bring the Code into conformity with Article 133(1) of the Constitution, 'the material part of which runs as follows:
"An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies - -
(a) that the amount or value of the subject matter of the dispute in the Court of first instance and still in dispute on appeal was and is not 'less than twenty thousand rupees or such other sum as may be specified in that behalf by parliament by law.";