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1963 Supreme(AP) 196
Andhra Pradesh High Court
Judges : GOPALRAO EKBOLE, P.CHANDRA REDDY
Kunaparaju Satyanarayana Raju - Appellant
Versus
Kunaparaju Rama Raju - Respondent
Decided On : 10-30-63
An order converting a Civil Miscellaneous Appeal into a Civil Revision Petition may not be considered a judgment within the meaning of the relevant legal provision.
Headnote:
judgment - Civil Miscellaneous Appeal - The court considered whether an order converting a Civil Miscellaneous Appeal into a Civil revision Petition is a judgment within the terms of clause (15) of the Letters Patent. The court held that the order did not put an end to the proceedings and did not affect the merits of the controversy between the parties, therefore, it did not amount to a judgment within the meaning of clause 15 of the Letters Patent.
Fact of the Case:
The appellant filed a petition under section 68 of the Provincial Insolvency act, impeaching a sale held by the Official Receiver. The petitions were dismissed, and the appellant sought to file an appeal against these orders. The District Judge allowed the appeals, and they were converted into Civil Revision Petitions.
Finding of the Court:
The court found that the order converting the appeals into Civil Revision Petitions did not amount to a judgment within the meaning of clause 15 of the Letters Patent, and therefore the Letters Patent Appeals were not competent and were dismissed.
Issues: The main issue was whether the order directing the conversion of the Civil Miscellaneous Appeals into Civil Revision Petitions is attracted by clause (15) of the Letters Patent.
Ratio Decidendi: The court held that the order did not put an end to the proceedings and did not affect the merits of the controversy between the parties, therefore, it did not amount to a judgment within the meaning of clause 15 of the Letters Patent.
Final Decision: The Letters Patent Appeals were held incompetent and were dismissed. No costs were awarded.
( 1 ) THE short question that requires an answer in these appeals is whether an order converting a Civil Miscellaneous Appeal into a Civil revision Petition is a judgment within the terms of clause (15) of the Letters Patent. The facts necessary for the purpose of this enquiry may be briefly stated. The appellant, a creditor, filed a petition under section 68 of the Provincial Insolvency act, impeaching a sale held by the Official Receiver in I. P. No. 10 of 1954. As it was filed beyond 21 days prescribed by section 68 he also filed an I. A. under section 5 of the Indian Limitation Act read with section 78 of the Provincial Insolvency act, for condoning the delay in filing the petition. Both the petitions were dismissed by the Subordinate Judge for reasons which need not be stated here. The appellant sought to file an appeal against these orders. Here again, he did not file the appeals in time and so once again he invoked section 5 of the Limitation Act read with section 78 of the Provincial Insolvency Act. The District Judge thought that there was sufficient cause within the meaning of section 5 of the Limitation Act which prevented the appellant from presenting the appeals in time.
( 2 ) THESE orders were made the subject of two Civil Miscellaneous Appeals in this Court. At the. time of hearing of the appeals, an objection was taken by the appellant that the appeals were incompetent for the reason that they did not fall within Schedule I of the Provincial Insolvency Act. When this plea prevailed with the learned Judge, a request was made on behalf of the respondents for permission to convert the Civil Miscellaneous Appeals into Civil Revision Petitions. The request was granted and, ultimately, the Civil Revision Petitions were accepted by sanjeeva Row Nayudu, J. The present Letters Patent Appeals are filed against the orders of the learned Judge.
( 3 ) THE main point that arises for consideration is, whether the order directing the conversion of the Civil Miscellaneous Appeals into Civil Revision Petitions is attracted by clause (15) of the Letters Patent. Incontestably, clause 15 does not govern orders made by this Court in Civil Revision cases. So, the only question is whether the order of conversion could be regarded as a judgment within the scope of clause 15 of the Letters Patent.
( 4 ) IT is convenient to read here clause 15 of the Letters Patent. It reads :"and we do further ordain that an appeal shalllie to the said High Court of judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and ot beine a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge ofthe said High Court or one Judge of any division Court, pursuant to section 108 of the Government of India Act made (on or after the 1st day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal ; but that the right of appealfrom other judgments of the said High Court or of such Division Court shall be to us, our heirs or successors in our or their Privy Council, as hereinafter provided. "
( 5 ) IT is not necessary for us to consider whether the order passed
