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IN THE HIGH COURT OF MADRAS FULL BENCH
Alfred Henry Lionel Leach, C.J.
Vattipalle Eswariah
Versus
Vattipalle Rameswarayya and Ors.
Decided On : 04.03.1940
Order 41 - Appeal - Rule 11, Rule 12(1)
Fact of the Case:
The appeal arose from a suit for the partition of 72 items of property. The District Munsif granted a decree for partition, which was appealed to the Subordinate Judge. The appellant was dissatisfied with the decision and filed the present appeal, which was admitted only in part by the learned Judge.
Finding of the Court:
The Court found that the learned Judge erred in admitting the appeal only in part, as there is no provision in Order 41 to admit the appeal in part. The Court held that the appellant is not confined in his appeal to the question raised with regard to a specific item, but is at liberty to challenge the decree on all the grounds mentioned in the memorandum of appeal.
Issues: The main issue was whether the Court can admit an appeal only in part under Order 41, Rule 11 and Rule 12(1) of the Code of Civil Procedure.
Ratio Decidendi: The Court interpreted Order 41, Rule 11 and Rule 12(1) and held that there is no provision for admitting the appeal in part. The Court referred to previous decisions from the Calcutta, Bombay, and Patna High Courts, and concluded that the appellant is not confined to a specific question but can challenge the decree on all grounds mentioned in the appeal.
Final Decision: The Court modified the decree of the Subordinate Court by granting the appellant a one-third share in a specific item and the first respondent a one-sixth share in it. The appellant was ordered to pay the costs of the third respondent.
Alfred Henry Lionel Leach, C.J.
1. This second appeal has been placed before this Full Bench as it raises the important question whether the Court in dealing with an appeal under Order 41, Rule 11 of the Code of Civil Procedure can direct that it be admitted in part only. The appeal arises out of a suit filed in the Court of the District Munsif of Nandalur for the partition of 72 items of property held in common by eight people. The first respondent in the appeal was the plaintiff. A decree for partition was granted by the District Munsif who gave his decision on the claims of the parties to the various items of property. The appellant and the third respondent appealed to the Subordinate Judge of Cuddapah. The Subordinate Judge set aside the allotments, of the District Munsif and made fresh allotments. The appellant was dissatisfied with the Subordinate Judges decision in so far as it related to items Nos. 29, 30, 31, 33, 37 and 38 of the properties and he filed the present appeal, which was placed before Gentle, J., on the question of admission. The learned Judge passed an order admitting the appeal only in respect of item No. 30.
2. In my opinion the learned Judge erred in admitting the appeal only in part. As he considered that there was a question which called for an answer he had no discretion in the matter in view of the wording of Order 41, Rules 11 and 12(1). Rule 11 says:
(1) The appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.
(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.
3. Rule 12(1) is in these words:
Unless the appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal.
4. By virtue of Rule 11 the appellate Court may dismiss the appeal without serving notice on the respondent but if it does not dismiss the appeal summarily, it must, by virtue of Rule 12(1), fix a day for hearing "the appeal." There is nothing in either rule which suggests that the Court may admit the appeal in part.
5. This question has been raised before in this Court and also in the Calcutta, Bombay and Patna High Courts. It was raised apparently for the first time in the Calcutta High Court. In Lukhi Narain Serowji v. Sri Ram Chandra Bhutya 15 C.W.N. 921, a Bench of that Court held that it was not competent for a Court of Appeal to restrict the appeal to some specified grounds. Once the appeal is admitted all points in the memorandum are open to the appellant. This decision was affirmed in Janaki Nath Hore v. Prabhasini Dasee I.L.R.(1915)Cal. 178.
6. A Full Bench of the Bombay High Court considered the matter in Krishnaji Shrinivas v. Madhusa Appansa I.L.R.(1933)Bom. 406 . The Court expressed agreement with the view of the Calcutta High Court in Lukhi Narain Seroivji v. Sri Ram Chandra Bhuiya 15 C.W.N. 921 and Janaki Nath Hore v. Prabhasini Dasee I.L.R. (1915)Cal. 178, that it was not open to a Judge to admit an appeal and at the same time to restrict the grounds on which it was to be heard, but it was of the opinion that if the appeal involved questions which were severable the Judge could dismiss the appeal in part and admit it in part under Order 41, Rule 11:
Just as at the final hearing, the Court may dismiss the appeal in part and allow it in part.
7. There is nothing in Order 41 which permits of severance and therefore I do not share this opinion. It may be desirable to provide for such a course but as the question has to be deci
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