K. Murli Manohar vs K. Raghavan and others

K.B.N. Singh, C.J.—The short question that arises to be decided in this case is as to whether the provisions of subsec. S. (2-A) of S. 15 of

the Madras City Civil Court Act, 1892, as incorporated by the Amending Act 34 of 1980, and which provision came into force on 7th March,

1981, is retrospective or prospective. The Principal City Civil Judge, Madras, in his order, dated 15th December, 1981 in C.M.P. No. 1121 of

1981 in C.M.A. No. 137 of 1981, under revision, held that it is retrospective in operation and that the appeal filed before him by the first

respondent herein (Advocate-Receiver) was maintainable. It is against this order that the present revision has been filed. The necessary facts for

the disposal of this revision petition may be stated: O. S. No. 9109 of 1968 was filed in the Court of the Fifth Assistant City Civil Judge, Madras,

for realisation of licence fee for several years payable by the contractors in respect of the suit properties situated at door No. 18, Bazar Road,

Mylapore, at the rate of Rs. 500 per mensem. K. Raghavan, the first respondent, was appointed Advocate-Receiver in Application No. 2092 of

1969 and he took possession of the properties on 11th September, 1972. Though by the order of appointment he was required to file accounts

once in two months, he filed his first account on 2dn July, 1973 for the period ending 31st May, 1973 and the second account on 20th March,

1976 for the period from 1st June, 1973 to 30th September, 1975. Thereafter, on 16th March, 1976 an application (I.A. No. 7214 of 1976) was

filed for directing the Receiver to account for the income received by him and he filed his third account on 24th March, 1976 for the period from

1st October, 1975 to 29th February, 1976, and finally on 13th October, 1976 he filed a ''nil'' account for the period ended 25th July, 1976.

Thereafter, I.A. No. 2338 of 1976 was filed for discharging the Receiver and he was discharged from the receivership in August, 1976 and

another Receiver was appointed in his place.

Another application ( I.A. No. 7214 of 1976) was filed by the fourth plaintiff under O. 9, R. 3 and S. 151 of the C.P.C. to direct the Receiver

to deposit into court a sum of Rs. 60,750, collected from the market from November, 1971 to March, 1973, at the rate of Rs. 1,000 per month

and at the rate of Rs. 1,250 from April, 1973 to February, 1976 and also for a direction to him to file weekly statement of collections made by the

Receiver.

By order, dt. 20th September, 1976 the fifth Assistant Judge, City Civil Court, Madras, before whom I.A. 2714 of 1976 came up for hearing,

directed the Receiver to deposit Rs. 28,122.74. Aggrieved by the said order, the Receiver preferred C.M.A. No. 647 of 1976 to this Court and

the fourth plaintiff filed a cross objections claiming that the Receiver is bound to deposit a sum of Rs. 60,750.

This Court, while granting stay in C.M.P. No. 12828 of 1976 in C. M. A. No. 647 of 1976, directed the Tenth Assistant Judge, City Civil

Court, Madras, to scrutinise the accounts of the Receiver and submit a finding to this Court.

On receipt of the finding, Sathiadev, J. allowed the appeal and remanded the matter to the City Civil Court, Madras, with a direction to

scrutinise the accounts of the Receiver and the concerned Court shall go into the accounts, vouchers and other documents and determine to what

extent the Receiver is liable to deposit the amounts into court.

After the remand, the trial court directed the Receiver to deposit a sum of Rs. 48,085,86 by its order, dt. 20th March, 1981, Against this order

the Receiver filed C.M.A. No. 137 of 1981 in the court of the Principal City Civil Judge, Madras, and also filed an application (I.A. No. 1121 of

1981) for staying further proceedings of the order under appeal and interim stay was granted on 14th October, 1981.

The respondent appellant objected to the stay of the proceedings before the trial court on the grounds mentioned therein and also contended

that the appeal was not maintainable in that court since the value of the subject-matter of the appeal was Rs. 48,085.86, whereas the pecuniary

jurisdiction of the appellate Court was only Rs. 30,000, even according to the amended provisions of S. 15(2A) of the Madras City Civil Court

Act, 1892, as amended by Tamil Nadu Act 34 of 1980, which came into force on 7th March, 1981, after which date this appeal has been filed.

Another contention raised was that no appeal lay as the order was one passed under O.40, R. 3, C.P.C., which was revisable by the High

Court.

The Principal City Civil Judge came to the conclusion that the amended provision of S. 15 (2A) was retrospective, and as the valuation of the

suit was Rs. 19,000, the appeal will lie before the lower appellate Court. He, however, did not go into the question as to whether against the

impugned order an appeal would lie or only a revision would lie.

The learned counsel for the petitioner has urged that it is true that the order was passed after the amendment came into force, but the amount

involved in the order against which the appeal was filed was more than Rs. 30,000 and therefore, the appeal will lie in the High Court. He

submitted that unless both the conditions, namely, the order being passed after 7th March, 1981 and the subject-matter of appeal being less than

Rs. 30,000, are satisfied the appeal will lie before the lower appellate Court. His other submission was that the forum of appeal would be guided

according to the provisions as obtained when the suit was filed in 1968, as the appeal is a continuation of the suit, unless the Amending Act has

been made applicable retrospectively, which is not the position in the instant case. The learned counsel, in support of his contention, relied on the

decision of the Supreme Court in the case of Garikapatti Veerayya v. N. Subhiah Choudhury 1975 S.C.R. 488: AIR 1975 S.C. 540. It has been

held therein that the right of appeal was a substantive right and although it could by exercised only in case of an adverse decision, it was governed

by the law prevailing at the time of commencement of the suit and comprises of successive rights of appeal from court to court, which really

constituted one proceeding. Such a right could be taken away only by a subsequent enactment either expressly or by necessary intendment. Even

according to the aforesaid decision, relied on by the learned counsel, on the basis of the valuation of the suit, the appeal would lie to the High Court

unless the amendment brought by S. 15(2A) was expressly or by necessary intendment retrospective.

S. 13 of the Madras Civil Courts Act, 1873, before its amendment by the Tamil Nadu Act 34 of 1980, originally provided that appeals from

the decrees and orders of Subordinate Judges and District Munsifs would lie to the District Court when the amount or value of the subject-matter

of the suit did not exceed Rs. 5,000 which was raised to Rs. 10,000, by the Tamil Nadu Act 17 of 1956, which came into force on 1st April,

1957. Similar provision was also made in S. 15 of the Madras City Civil Courts Act, 1892, by the Tamil Nadu Act, 18 of 1971. The purpose

behind the amendment was to reduce the arrears and the load of appeals in the High Court by extending the jurisdiction of the lower appellate

courts.

The question whether the amendment brought by the Tamil Nadu Act 17 of 1956 in Madras Civil Courts Act was prospective or

retrospective, came to be considered by a Full Bench of this Court in the case of Av. P.L.Ct Ramanathan Chettiar and another v. L.P.

Lakshmanan Chettiar (died) and others, 1963 1 M.LJ. 46: 76 L.W. 1 (F.B.) and the Full Bench held as follows-

In the present case there can be little doubt that the object of the Legislature in enacting Madras Act XVII of 1956 was to reduce the arrears in the

High Court; that was achieved by enlarging the appellate jurisdiction of the District Court to cases where the value of the subject-matter of the suits

was below Rs. 10,000. That object could be achieved only if retrospective operation was given to the amendment. The postponement clause in

such cases would have a significance, as indication of the intention of the Legislature that it should apply to all cases where appealable orders are

passed subsequent to the appointed date.

And the decision in In Re: Parthasarathi Naidu and Another, was approved.

In the instant case also the amending Act 34 of 1980 amended the original S. 15 of the Madras City Civil Courts Act, 1892, by inserting the

new sub-S. (2-A) which reads as follows�

An appeal shall lie to the Principal Judge from any decree or order appealable under the provisions of the Code of Civil Procedure, 1908 (Central

Act V of 1908), passed in any suit or proceeding by a Judge other than the Principal Judge or an Additional Judge on or after the date of the

commencement of the Tamil Nadu Civil Courts and the Madras City Civil Court (Amendment) Act, 1980, where the amount or value of the

subject-matter does not exceed thirty thousand rupees.

Tamil Nadu Act 34 of 1980, as in the case of the Tamil Nadu Act 17 of 1956, with which the Full Bench was concerned, provided that the Act

will come into force on such date as may be specified by the State Government, and although the Act had been passed earlier, it came into force

on 7th March, 1981. On a parity of the reasoning, as laid down by the Full Bench, and the purpose of the present amendment also being to reduce

the arrears in the High Court, it must be held that the amendment brought by S. 15 (2A) is retrospective in operation by necessary intendment.

Coming to the question whether the valuation of the suit or the amount directed by the court to be deposited by the Receiver would be the

guiding factor for the purpose of determining the forum of appeal, it is the valuation of the suit which will determine the forum of appeal, as held by

the Supreme Court in Garikapatti Veera v. N. Subbiah Choudhry 1957 S.C.R. 499. Following the said decision, Panchapakesa Ayyar, J. held in

the case of S.J. In Re: S.J. Nathan, that the criterion for determining the forum is the subject-matter of the suit, as in the Civil Courts Act, and the

amount or value of the decree of the subject matter of the appeal is not the determining factor. I am in respectful agreement with the above view. It

must, therefore ,be held that the valuation of the suit which is is Rs. 19,000, that is to say, below Rs. 30,000, and the order under appeal having

been passed after the Tamil Nadu Act 34 of 1980 came into force, an appeal would lie to the lower appellate court, if the order in question is an

appealable one.

Coming to the next contention of the learned counsel that the order in question was not an appealable order, but a revisable order, and

therefore, no appeal would lie before the lower appellate court, although this question was raised before the lower appellate court, surprisingly the

lower appellate Court has failed to consider this question and has erred in holding that that question did not arise for consideration. Having held

that the provision of S. 15 (2-A) was retrospective, it wrongly held that that was sufficient to conclude the matter which, in fact, was not. If the

order is one under O. 40, R. 3, C.P.C., then surely no appeal would lie, but a revision would lie. If, however, the order is one under O.40, R. 4,

as amended by the Madras High Court, still another question that will require consideration is as to how far the provisions are consistent with the

CPC Amendment Act 104 of 1976. I need not go into this question as to whether the order was passed under O.40, R. 3 or 4, as it has not been

investigated by the lower appellate court. The lower appellate court will go into the question first and thereafter dispose of the matter in accordance

with law. The civil revision petition is disposed of in the light of the observations made above. In the circumstances of the case, there will be no

order as to costs.