The provisions of S.98 of the Code of Civil Procedure were applied by the Division Bench to confirm the decree of the subordinate Court. The Letters Patent of the Madras High Court was found not to be applicable to the High Court of Kerala, and therefore, sub-s. (3) of S.98 of the Code was not applicable. The Supreme Court found no ground to grant special leave to appeal against the conflicting judgments of the Division Bench.

1. These Special Leave Petitions have been filed against the common judgment of the Division Bench of Kerala High Court dated 19.1.2001 which have arisen out of two suits seeking injunction and two other suits claiming decree of specific performance of the contract for sale of two cinema theaters viz., Sangam and Pushpa in Calicut. Calicut was part of erstwhile Malabar District in State of Madras and now forms part of new State Kerala.

1. An uncommon question of legal and procedural difficulty has arisen giving rise to these Special Leave Petitions for appeal against the order of Division Bench of Kerala High Court. The subordinate judge of Calicut dismissed the suit filed for specific performance of the agreement of sale of Sangam and Pushpa theatres by judgment dated 1.4.1978. The appeals preferred under S.96 of the Code of Civil Procedure to the High Court of Kerala were decided by common judgment with the appeals arising from the injunction matters. The two judges constituting the Division Bench sharply differed on all issues of fact and mixed issues of fact and law. Justice P.K. Balasubramanyan dismissed the appeal holding that the plaintiff (Petitioner herein) is not entitled to decree of specific performance. The other judge, Justice K.A. Abdul Gafoor, differed and came to the conclusion that the plaintiff is entitled to decree of specific performance.

He, therefore, allowed the appeals.

2. In the course of hearing, it is not disputed before us by the counsel appearing for the parties that the main issue arising on facts between the parties which was sufficient to dispose of the appeals was regarding the right of the plaintiff to claim decree of the specific performance. The other mixed issue of law and fact whether the property being custodia legis through the Receiver appointed by the Court the suit without obtaining leave of the Court was maintainable or not, was in additional ground to grant or refuse the decree of specific performance. The other related issues of fact which arose in the suit were regarding readiness and willingness of the plaintiff to obtain the sale in due time and the entitlement of the plaintiff to the grant of equitable relief of decree of specific performance.

3. The two judges constituting the Division Bench delivered two separate judgments in which they have differed on almost all issues arising in the case. After delivering two separate judgments, the judges then formulated the impugned order dated 19.1.2001 and came to the conclusion that since they have delivered two separate judgments and have not identified difference on any point of law, the decree of the Court below passed by the Court is liable to be confirmed in terms of S.98(2) of the Code of Civil Procedure (For short "the Code").

4. Before discussing the contentions advanced by the learned counsel for the petitioners and the respondents - it is necessary to critically examine the provision of S.98 of the Code (which are reproduced below) and the order dated 19.1.2001 passed by the Division Bench resulting in confirmation of the decree of subordinate court:

"98. Decision where appeal heard by two or more judges.

(1) Where an appeal is heard by a Bench of two or more judges, the appeal shall be decided in accordance with the opinion of such judges or of the majority (if any) of such judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from which decree shall be confirmed:

Provided that where the Bench hearing the appeal is (composed of two or other even number of judges belonging to a court consisting of more judges than those constituting the Bench) and the judges, composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other judges, and such point shall be decided according to the opinion of the majority (if any) of the judges who have