SOOSAI ANTHONY DCOSTA NICHOLAS DCOSTA Vs. FRANCIS ROCHE ANTHONY KURUSH ROCHE

JUDGEMENT

(1.) THIS is a petition to review the judgment dated 23-6-1960 of a Division Bench of this Court consisting of Rajamannar C. J. , and myself. We concurred with the additional District Judge in his conclusion and found that the plaintiff's claim was barred by res judicata and by limitation which were the only two questions argued before us on his behalf. The plaintiff's appeal was accordingly dismissed. He now seeks review on two grounds, to wit (1) that the Division Bench had no jurisdiction to decide the appeal and (2) that the counsel, who appeared for the appellant in spite of definite written instructions from his senior counsel in the trial court to argue a certain point, totally failed to do so. The learned Chief Justice having since retired, the petition comes before me sitting alone for disposal under Order 47, rule 5 of the C. P. Code.

(2.) THE appeal, arising as it did, from Kanyakumari district was, in the wake of its merger with this State under the provisions of the States Reorganisation Act, 1956, transferred from the High Court of Travancore-Cochin to this court under S. 60 of that Act. While the appeal was still on the file of the High Court of Travancore cochin it came before a Division Bench of that court was after hearing referred to a Full Bench by an order dated 20th March 1956 on account of the existence, in its opinion, of a conflict of opinion among the High Courts in India on the point as to whether a question relating to the delivery of possession of property sold in court auction between the decree-holder auction purchaser on the one hand and a party to the suit or his representative on the other falls within the purview of S. 47 c. P. C. That Division Bench also observed that the other questions of law raised in the appeal, namely, res judicata and limitation were also questions on which judicial opinion could not be said to be uniform and that it was desirable to have those questions also considered by a Full Bench. The position, therefore, was that before its transfer to this court, the whole appeal stood referred to a Full Bench for disposal. I recall that, at the outset, when the appellant by counsel opened his appeal before us, we were apprised of the position but we considered that so far as this court was concerned, there was no necessity for the appeal to come before a Full Bench on any of the questions. The learned counsel appearing for both the parties also appeared to agree with that view. The appeal was therefore, proceeded with and was disposed of by us.

(3.) THE contention of Sri Paikaday is that in view of the order of reference to a Full bench made in the High Court of Travancore Cochin, we were not, as a Division bench of this court, competent to ignore it and decide the appeal. He urges that the order of reference conferred a right upon the appellant to have the appeal heard and disposed of by a Bench of three Judges and this right remained unimpaired even after the transfer of the appeal to this court. In support, he has relied on certain provisions of the Travancore Cochin High Court Act, 1125 and Ss. 50 (2) and 66 (4) of the States Reorganisation Act, 1956.