CHITTAM SUBBA RAO Vs. VELA MANKANNI CHELAMAYYA
HIGH COURT OF MADRAS
CHITTAM SUBBA RAO
VELA MANKANNI CHELAMAYYA
Click here to view full judgement.
Rajamannar, C.J. -
(1.) This application for leave to appeal to the Supreme Court of India against the judgment and decree in Appeal No. 253 of 1947 on the file of this court originally came on before Subba Rao and Panchapakesu Aiyar JJ. who had disposed of the appeal. The learned Judges found there was a conflict of decisions of Division Benches and have referred the following question to a Full Bench:
"Whether an appeal will lie as of right to the Supreme Court from any judgment, decree or final order of the High Court if the decree of the first-court is modified in favour of the applicant but in other respects confirmed and if the requirements of the pecuniary valuation are satisfied, but no substantial question of law is involved."
(2.) To understand the scope of the question referred, it is necessary to mention the relevant facts. App. No. 253 of 1947 arose out of a suit O.S. No. 43 of 1946 instituted in the court of the Subordinate Judge of Ellore by the respondent to this application, Chalamayya against the applicant Subba Rao and five others for a declaration that a Will dated 23rd December 1944, Ex, D. 7, alleged to have been executed by Kalla Samoamurthi in favour of the first defendant, Subba Rao, was false and forged and that the first defendant, obtained no fights thereunder and for possession of the properties set out in Schedules B and C to the plaint, for recovery of mesne profits and for directing the first defend-ant to render an account of the monies of the deceased Sambamurthi in his hands. The respondent relied upon another Will, Ex, P. 1, alleged to have been executed by the said Sambamurthi in his favour on 23th November 1944. The learned Subordinate Judge decreed the suit holding that Ex. P. 7 was not a true Will and that Ex. P. 1 was the last Will and testament of the said Sambamurthi. That decree in so far as it is material runs as follows:
"1. The plaintiff do recover possession of the plaint B schedule properties from the defendants. 2. The plaintiff be not entitled to recover possession of the C schedule properties."
(3.) The first defendant do render an account of the monies of Sambamurthi in his hands.
"In the appeal to the High Court from this decree by the first defendant (Appeal No. 253 of 1947) this court set aside the decree of the trial court in so far as it granted the relief of accounting against the first defendant but upheld the finding of the trial court as regards the Wills. The result was that the decree of the lower court was modified by deletion of the clause relating to" accounting. The first defendant, the appellant in Appeal No. 253 of 1947, seeks to appeal to the Supreme Court against this decree. It is common ground that the value of the subject-matter of the suit in the court of first instance as well as the value of the subject-matter in disputa on appeal to the Supreme Court is upwards of Rs. 20,000. It is also clear, and the learned Judges who made the reference Chittam Subba Rao vs. Vela Mankanni Chelamayya (07.03.1952 - MADHC) Page 3 of 13 proceeded on the footing, that no substantial questions of law were involved in the appeal. 3. The provision which now embodies the right of appeal to the Supreme Court is Article' 133 of the Constitution. Clause 1 of that Article runs thus:
"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, or (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court; and when the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law." Substantially this reproduces the provisions of Sections 109 and 110, C. P. C. as they stood on the date of the commencement of the Constitution. The only alteration which needs notice is that instead of the words "the amount or value of the subject matter of the suit in the court of first instance" which occurs in Section 110, C.P.C we have the words "the amount or value of the subject matter of the dispute in the court of first instance" and in lieu of the words "and the amount or value of the subject matter in dispute on appeal" the following words were substituted, namely, "and still in dispute on appeal.";
Copyright © Regent Computronics Pvt.Ltd.