AI Structured Summary
Not yet generated for this judgment
Judgment
K.B.N. Singh, C.J.—The short question that arises to be decided in this case is as to whether the provisions of Sub-section (2A) of Section
15 of the Madras City Civil Court Act. 1892, as incorporated by the Amending Act XXXIV of 1980, and which provision, came into force on 7th
May, 1981, is retrospective or prospective. The Principle City Civil Judge, Madras, in his order dated 15th December, 1981 in Civil
Miscellaneous Petition No. 1121 of 1981 in Civil Miscellaneous Appeal No. 137 of 1981, under revision, held that it is retrospective on 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 Original Suit No. 5109 of 1978 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 situate
at door No. 18, Bazaar 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 2nd 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 August, 1975. Thereafter, on 16th March 1976 an
application (Interlocutory Application 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 23rd October 1976 he
filed a ''nil'' account for the period ended 25th July 1976. Thereafter Interlocutory Application No. 2338 of 1976 was filed for discharging the
Receiver and he was discharged from the receivership in August, 1976 and another Receiver appointed in his place.
Another applications Interlocutory (Application No. 7214 of 1976) was filed by the fourth Plaintiff under Order XL, Rule 3 and Section 151 of
the CPC 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 No. 1,250 from April, 1973 to February 1976, and also for a directions to him to file weekly
statement of collections made by the Receiver.
By order dated 20th October, 1976 the Fifth Assistant Judge, City Civil Court, Madras, before whom Interlocutory Application No. 2714 of
1976 came up for hearing, directed the Receiver to deposit Rs. 23,122.74. Aggrieved by the said order, the Receiver preferred Civil
Miscellaneous Appeal No. 647 of 1976 to this Court and the fourth Plaintiff filed a cross-objections claiming that the Receiver in bound to deposit
a sum of Rs. 60,750.
This Court, while granting stay in Civil Miscellaneous Petition No. 12828 of 1976 in Civil Miscellaneous Appeal 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 all 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, dated 20th March 1981. Against this
order the Receiver filed Civil Miscellaneous Appeal No. 137 of 1981 in the Court of the Principal City Civil Judge, Madras, and also filed an
application Interlocutory Application 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 appeal was Rs. 48,065.86 whereas the pecuniary
jurisdictions of the Appellate Court was only Rs. 30,000 even according to the amended provision of Section 15(2A) of trie Madras City Civil
Court Act, 1892, as amended by the Tamil Nadu Act XXXIV of 1980, which came into force on 7th March 1981, after which date this appeal
has been filed.
Another contentions raised was that no appeal lay as the order was one passed under Order XL, Rule 3 CPC which was reliable by the High
Court.
The Principal City Civil Judge came to the conclusion that the amended provisions of Section 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 hat 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 provision 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 Veeraya Vs. N. Subbiah Choudhury, . It has been held therein that the right of appeal
was a substantive right and although it could be exercised only in case of an adverse decision, it was governed by the prevailing at the time of
commencement of the suit and comprises of sucessive rights of appeal from Court to Court, which really constituted one proceeding. Such a right
could be taken 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 Section
15(2A) was expressly or by necessary intendment retrospective.
Section 13 of the Madras Civil Courts Act, 1873, before its amendment by the Tamil Nadu Act XXXIV of 1980, originally provided that
appeals from the decree 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. 5000 which was raised to Rs. 10,000 by the Tamil Nadu Act XVI of 1956, which came into force
on 1st April 1957. Similar provision was also made in Section 15 of the Madras City Civil Court Act, 1892, by the Tamil Nadu Act XVIII 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 XVII of 1956 in the Madras Civil Courts Act was prospective or
retrospective came to be considered by a Full Bench of this Court in the case of Ramanathan v. Lakshmamn ILR [1963] Mad. 183 (F.B.) and the
Full Bench held as follows- (at page 191):
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 giver to the amendment. The postponment clause in
such cases would have a significance, as an indication of the intention of the Legislature that it should apply to all cases where appelable 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 XXXIV of 1980 amended the original Section 15 of he Madras City Civil Court Act, 1892, by
insetting the new Sub-section (2A) which reads as follows:
An appeal sha11 lie to he Principal Judge from any decree or order appealable under the provisions of the Code of Civil Procedure, 1956
(Central Act V of 1908) passed in any suit or proceeding by a judge in any suit or proceeding by a judge other that 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,
1960, where the amount or value of the subject-matter does not exceed thirty thousand rupees.
Tamil Nadu Act XXXIV of 1980, as in the case of the Tamil Nadu Act XVII 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 Section 15(2A) is retrospective in operation by necessary
instrument.
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 Veeraya Vs. N. Subbiah Choudhury, . Following the said decisions, Panchafakesa Ayyar, J., in the case of In
Re: S.J. Nathan, held that the Petitioner 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 in not the determining further. I am in respectful agreement with the above view. It suit,
therefore, be held that the valuation of the suit which is Rs. 19,000 that is to any below Rs. 30,000 and the order under appeal having been passed
after the Tamil Nadu Act XXXIV of 1980 came into force, an appeal would lie to the lower appellate Court, if the order in question is as
applicable 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 he 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 earred in holding that that question did not arise for consideration. Having
held that the provisions of Section 15(2A) was retrospective, wrongly held that that was sufficient to concludes the matter which, in fact, was not, if
the order is one under Order XL, Rule 3, Code of Civil Procedure, then merely on appeal would lie, but a revision would lier revisipo woulplie. If,
however, the order is one under Order XL, Rule 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 CIV of 1976. I need not go into this question as to whether the order
was passed under Order XII, Rule 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 in disposed of in the light of the observation made above. In the circumstances of the case there will be no order as to
costs.