VIDYACHARAN SHUKLA Vs. KHUBCHAND BAGHEL

JUDGEMENT

(1.) THE following Judgments of the court were delivered by

(2.) ON behalf of the chief justice and himself) We have had the advantage of perusing the judgment of our brother Subba Rao J. and we agree with him that the appeal should be dismissed.

(3.) THE next point was one that arose on the submission of counsel for the respondent and it was this. Assume that the construction of the words 'different from' urged by the appellant were accepted, and this requirement would be satisfied only if the First Schedule made provision for an identical appeal as that under the special law, still it was submitted by the respondent that even this was satisfied in this case. For this purpose he relied on Art. 156 of the first schedule which runs: <FRM>JUDGEMENT_1099_AIR(SC)_1964Html1.htm</FRM> THE argument was that though the right of appeal in the case before us was conferred by s. 116A of the Representation of the People Act and it was by virtue thereof that the appeal was filed by the respondent to the High court, it was still an appeal 'under the Code of Civil Procedure, 1908, to a High court.' For this submission learned Counsel relied principally on two decisions one of the Calcutta and the other of the Madras High court, and they undoubtedly support him. In Aga Mohd. Hamdani v. Cohen and Ors.(1) as well as in Ramasami Pillai v. Deputy Collector of, Madura(1) which followed it the court held that to attract this article it was not necessary in order to be an 'appeal under the Code of Civil Procedure' within the meaning of those words in Art. 156, that the right to prefer the appeal should be conferred by the Code of Civil Procedure but that it was sufficient if the procedure for the filing of the appeal and the powers of the court for dealing with the appeal were governed by that Code. For adopting this construction the court relied on the reference in Art. 156 to Art. 151. Article 151 dealt with appeals to the High court from judgment rendered on the original side of that court. THE right to prefer these appeals was conferred by the Letters Patent constituting the respective High courts and not by the Code of Civil Procedure, though the Code of Civil Procedure governed the procedure, jurisdiction and powers of the court in dealing with the appeals so filed. THEre would have been need therefore to except cases covered by Art. 151 only if the words 'under the Code of Civil Procedure' were understood as meaning appeals for the disposal of which the provisions of the Code of Civil Procedure was made applicable. We might mention that besides the Calcutta and the Madras High courts a full bench of the Allahabad High court also has in Daropadi v. Hira Lal (3 ) adopted a similar construction of the Article, the learned Judges pointing out that several Indian enactments, among them the Indian Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act, proceeded on the basis of a legislative practice of conferring rights of appeal under the respective statutes without prescribing any period of limitation within which the appeal should be preferred, but directing the application, of the provisions of the Civil Procedure Code to such appeals, the intention obviously being that Art. 156 would furnish the period of limitation for such appeals. We consider that these decisions correctly interpret Art. 156 and, in any event, we are not prepared to disturb the decisions which have stoodfor so long and on the basis of the correctness of which Indian legislation has proceeded.