SABHAPATHI CHETTI Vs. NARAYANASAMI CHETTI
LAWS(PVC)-1901-9-15
PRIVY COUNCIL
Decided on September 10,1901

SABHAPATHI CHETTI Appellant
VERSUS
NARAYANASAMI CHETTI Respondents

JUDGEMENT

- (1.) This is an appeal against the judgment of Shephard, J., disallowing a claim preferred, under Secs.278 and 282 of the Civil Procedure Code, by the appellants as mortgagees of a certain house and ground attached in execution of the decree in Civil Suit No. 58 of 1900 on the Original Side of this Court.
(2.) The respondent's vakil takes a preliminary objection that no appeal lies against the order disallowing the claim, firstly, because such an order is not specified as an appealable order in any of the 29 clauses of Section 588, Civil Procedure Code, and the right of appeal, if any, under Section 15 of the Letters Patent, is taken away by the first paragraph of Section 588 and by Section 591, Civil Procedure Code; and secondly, because the said order is not a judgment within the meaning of Section 15 of the Letters Patent.
(3.) We are clearly of opinion that neither of these objections is well founded. As regards the first, the matter has been practically concluded by the decision of this Court in Chappan v. Moidin Kutti I.L.R. 22 Mad. 68, which was heard by a Bench of six Judges and in which it was held by Mr. Justice Shephard, Mr. Justice Subrahmania Ayyar and Mr. Justice Moore that Section 15 of the Letters Patent is not controlled by Secs.588 and 591 of the Civil Procedure Code. This view was dissented from only by Benson, J. A Full Bench of the Calcutta High Court in Toolsee Money Dassee V/s. Sudevi Dassee I.L.R. 26 Calc. 361 unanimously held that Section 15 of the Letters Patent is not restricted by Section 588 of the Civil Procedure Code and dissented from Mr. Justice Benson's opinion that Secs.588 and 591, Civil Procedure Code, do restrict the right of appeal given by Section 15 of the Letters Patent. The above decisions of this Court and of the Calcutta High Court are in conformity with the decision of the Privy Council in Hurrish Chunder Chowdhry V/s. Kalisunderi Debi I.L.R. 26 Calc. 361, in which it was held that Section 588 of the Civil P. C. restricting appeals against orders did not apply to prevent an appeal to the High Court from the order of a single Judge of that Court, and with the canon of interpretation based on the maxim generalia specialibus non derogant, that a general later law does not abrogate an earlier special one by mere implication, Thorpe V/s. Adams L.R. 6 C.P. 125 The Queen V/s. Champaneys L.R. 6 C.P. 384 and Rulner V/s. Phillips [1891] 2 Q.B. 267 per A.L Smith, J., and that when the Legislature has already given its attention to a particular subject and provided for it, it is reasonably presumed not to intend to alter that special provision by a subsequent ? general enactment, unless that intention is manifested in explicit language per Wood V. C, in Fitzgerald V/s. Champneys 2 J.&H. 31 at p. 54, also Maharajah of Jeypore V/s. Papayyamma I.L.R. 23 Mad. 329 at pp. 351, 358-60. Both Section 540 of the Civil P. C. relating to appeals from original decrees and Secs.588 and 591 relating to appeals from orders provide for appeals from one Court to another of higher grade. The provision made by Section 15 of the Letters Patent for appeals from one or more Judges of the High Court, to other Judges of the same Court is entirely foreign to the provisions of the Civil Procedure Code relating to appeals from one Court So another. The matter is placed beyond all reasonable doubt, by Section 597 of the Code of Civil Procedure which occurs in the chapter relating to appeals to the King in Council. It is provided in that section, among other things, that no appeal shall lie, to His Majesty in Council, from a judgment of one Judge of a High Court or of one Judge of a Division Court. The obvious reason for such restriction is, that the party should not be permitted to appeal directly to the King in Council, from the judgment of a single Judge of the High Court, whether passed in the exercise of ordinary original civil jurisdiction or of appellate civil jurisdiction but that he should, in the first instance, appeal, under Section 15 of the Letters Patent, to the other Judges of the High Court. The result of holding that no appeal would lie under Section 15 of the Letters Patent, from an order of a single Judge in the exercise of original civil jurisdiction when such order is not a decree or an order specified under Section 588 of the Civil P. C. or from an order of a single Judge, passed in appeal, from any of the orders, specified in Section 588 of the Civil P. C. would be that such orders would be final and no appeal would lie, either to other Judges of the High Court or to the King in Council, although from a final order passed by a District Judge in appeal from any of the orders mentioned in Section 588, an appeal would lie direct to the King in Council under Section 595 (a). The fact that Secs.588 and 591 of the Civil P. C. are applicable to the High Court, does not affect the question now under consideration. They are applicable to the High Court, in that appeals from orders of the Subordinate Courts lie to the High Court under Section 588 of the Civil P. C. and Section 591 prohibits appeal from such Courts to the High Court, except in the oases provided for by Section 588.;


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