Applicability to proceedings instituted before the Constitution.

This is an application for leave to appeal to the Supreme Court of India against the decree and judgment of this Court in A.S. No. 2 of 1947, dated 24th August, 1951. The petitioners are defendants 1 to 4 in O.S. No.47 of 1945 on the file of the Court of the Subordinate Judge of Kakinada. The suit was instituted by the eighth respondent for partition of certain items of immovable property and for delivery of possession to him of a fourth share in the first item and a half share in the second and third items. The petitioners supported the plaintiff’s claim. The first petitioner claimed for himself a fourth share in item 1 and a half share in items 2 and 3, while petitioners 2 to 4. claimed a 12th share in the first item alone. The contesting defendants were defendants 5 to 11. The Subordinate Judge passed a preliminary decree for partition, but on appeal by defendants 5 to 11 this Court reversed the decision of the Court below and dismissed the suit in toto.

When this application originally came on before Satyanarayana Rao and Chandra Reddi, JJ., who had disposed of the appeal it was found that the value of the subject-matter of the suit was over Rs.10,000 but less than Rs.20,000. The value of the subject-matter of the proposed appeal was above Rs.20,000 according to petitioners and below Rs.20,000 according to the respondents, though presumably it was above Rs.10,000. The respondents raised the objection that the petitioners were not entitled to leave, because the case did not fulfil the pecuniary requirements of Article 133 of the Constitution. The petitioners, on the other hand, contended that by reason of Article 135 of the Constitution they had a right of appeal though the value was below Rs.20,000, because the value was over Rs.10,000 and they would have had a right of appeal under sections 109 and 110 of the Code of Civil Procedure as they stood before the Constitution. The learned Judges thought that as the question was of some importance the matter should be considered by a Full Bench.

Before dealing with the contentions on either side, it is useful to refer to the statutory provisions governing the rights of appeal against decrees, judgments and final orders of a High Court to a higher Court. Under Clause 39 of the Letters Patent an appeal lay to the Privy Council from any final judgment, decree or order of the High Court in any matter not being of criminal jurisdiction, provided inter alia that the sum or matter at issue was of the amount or value of not less than Rs.10,000. The corresponding provision is found in sections 109 and no of the Code of Civil Procedure. A new Court was created in India, called the Federal Court, by the Government of India Act, 1935, on which was conferred a limited appellate jurisdiction in respect of judgments, decrees and final orders of a High Court. Under section 205, sub-section (1), an appeal lay to the Federal Court from any judgment, decree or other final order of a High Court if the High Court certified that the case involved a substantial question of law as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder. This provision did not in any way affect the appellate jurisdiction of the Privy Council. The appellate jurisdiction of the Federal Court was enlarged by Act I of 1948 passed by the Dominion Legislature. This Act, called the Federal Court (Enlargement of Jurisdiction) Act, 1947, came into force on 1st February, 1948. From that day an appeal lay to the Federal Court from any judgment, decree or final order of a High Court in a civil case from which a direct appeal could have been brought to His Majesty in Council either with or without special leave if that Act had not been passed. From that day no direct appeal lay to His Majesty in Council either with or without special leave from any such judgment, decree or final order. If an appeal could have been brought to His Majesty in Council without special leave unde