Preferring a Civil Appeal to the Supreme Court cannot be regarded as a matter of Right for any Party [JUDGMENT]

Civil P.C. 1908- O. 45 Rr. 2, 3, 7 & 8 - Appeals to the Supreme Court - Preferring a civil appeal to the Supreme Court cannot be regarded as a matter of right for any party.

Held: The provisions in Order XLV, with reference to Rules 2, 3, 7 and 8 as they now exist, will make it clear that a special procedure has been prescribed for filing appeal before the Supreme Court. From the scheme set out in the Constitution and the Code, it can be explicitly seen that the expression “the court whose decree is complained of” can only be High Court. As stated above, Rule 8 of Order XLV of the Code says that where security has been furnished as provided in Rule 7 and deposit has been made to the satisfaction of the Court (read as High Court), the Court shall declare the appeal admitted and give notice to the respondents and also do other things required as per the mandate of the Rule. No doubt, while dealing with a civil appeal, the Supreme Court is also governed by the provisions in the Code notwithstanding that it possesses plenary powers. Whether the above mentioned course can be adopted by High Court in the constitutional scheme? Answer can only be in the negative. Discussions made supra will show that preferring a civil appeal to the Supreme Court cannot be regarded as a matter of right for any party. However, in this case I need not pronounce anything on the purpose of continued existence of the provisions in Order XLV of the Code. There are atleast two reasons preventing me from deciding that aspect. Firstly, there is no challenge in this case against the virus of the provisions in Order XLV of the Code. Secondly, the case on hand can be decided even without examining the efficacy of the provisions in Order XLV of the Code. Hence I consciously refrain from passing any comment on the efficacy and the reason for continued existence of the provisions in Order XLV of the Code vis-a-vis, the constitutional provisions mentioned above. (Para.39) 

Civil P.C. 1908 - O.45 R. 15 - Procedure to enforce orders of the Supreme Court - Decree passed in a civil appeal admitted to the Supreme Court otherwise than the procedure provided in Order XLV of the Code cannot be executed by invoking Order XLV Rule 15. 

In this case, the records would show that the parties, aggrieved by the decree of this Court, filed an application before the Supreme Court requesting it to invoke its extraordinary and discretionary jurisdiction under Article 136 of the Constitution. It is evident the Supreme Court allowed the appellants to file a civil appeal by granting leave. The civil appeal was disposed of after a full-fledged hearing. I point out these aspects to make it clear that no certificate under Rule 2 or Rule 3 of Order XLV of the Code was applied for or granted by this Court. In otherwords, the appellants before the Supreme Court got their appeal admitted by invoking the jurisdiction of the Supreme Court under Article 136 of the Constitution. It is therefore crystal clear that the appeal was not admitted as per Rule 8 of Order XLV of the Code. On a meticulous evaluation of the scheme in Order XLV of the Code, it can be undauntingly seen that it is a complete Code in itself. Execution of a decree passed by the Supreme Court in a civil appeal filed as per the prescriptions in Order XLV can alone be entertained under Order XLV Rule 15 of the Code. In otherwords, decree passed in a civil appeal admitted to the Supreme Court otherwise than the procedure provided in Order XLV of the Code cannot be executed by invoking Order XLV Rule 15. (Paras.40 & 41)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

A. HARIPRASAD, J.

Execution Petition No.1 of 2018

Dated this the 10th day of October, 2018

(IN OS NO.41/2003 of I ADDITIONAL DISTRICT COURT, ERNAKULAM)

PETITIONERS/NON-PARTIES

SONY MARKOSE 3 OTHERS

BY ADVS.SRI.SAJAN VARGHEESE K. SRI.ABE RAJAN SRI.LIJU. M.P

RESPONDENTS/PLAINTIFFS & DEFENDANTS 1, 2 & 4 TO 30

OUSEPH CHERIAN AND 31 OTHERS

BY ADVS.SRI.S.SREEKUMAR (SENIOR ADVOCATE) SRI..ALAN PAPALI (CAVEATOR)

THIS EXECUTION PETITION HAVING BEEN FINALLY HEARD ON 09.08.2018, THE COURT ON 10.10.2018 PASSED THE FOLLOWING:

O R D E R

Introduction:

According to Oxford Thesaurus of English, one meaning ascribable to the word “primeval” is untouched by humans. Such questions eminently arise in this execution petition. It is so said because despite ardent efforts put in by bar and bench, no precedent directly touching upon the questions posed herein could be unearthed. They are all about the nuances of executing a decree passed in a civil appeal by the Supreme Court. The concept vividly expressed in Section 37 of the Code of Civil Procedure, 1908 (in short, “Code”), viz., “court which passed the decree” leaves no room for any doubt. Section 38 of the Code says that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. In this backdrop and also in the light of relevant constitutional principles, scope of the provisions in Sections 109 and 112 of the Code, coupled with those in Order XLV of the Code, arise for scrutiny.

2. Needless to say, the Code is a pre-constitution law. By virtue of Article 372 of the Constitution of India, notwithstanding the repeal by the Constitution of the enactments referred to in Article 395, but subject to the other provisions in the Constitution, all the laws in force in the territory of India immediately before the commencement of the Constitution would continue in force until altered or repealed or amended by a competent legislature or other competent authority. As per the provisions in Adaptation of Laws Order, 1950, dated 26.01.1950, the Code has been adapted and it even now operates with full vigour. Insofar as Sections 109 and 112 and various Rules in Order XLV of the Code are concerned, the major change effected is substitution of the words “King in Council” with “Supreme Court”. Of course, in Sub-rule (1) of Rule 15 of Order XLV of the Code, the expression “any order” was substituted by “any decree or order” and for “His Majesty”, the substitution is “the Supreme Court”. Applicability of these provisions vis-a-vis the relevant constitutional provisions shall be examined later.

Quintessential Questions for determination:

(I) How far the provisions in Sections 109 and 112 and Order XLV differ from the basic rules contained in Part II of the Code, especially in relation to Sections 36 to 38 of the Code?

(II) Can it be said that Order XLV forms a separate Code within the Code?

(III) What is the impact of the articles in Chapter IV, falling in Part V of the Constitution of India, on a decree of this nature?

Brief facts:

3. This execution petition is filed by invoking Order XXI Rules 10 and 11 read with Order XLV Rule 15 of the Code. Petitioners herein are not parties to O.S.No.41 of 2003 on the file of the I Additional District Court, Ernakulam (Special Court for Malankara Church Cases), from which the decree sought to be executed had arisen. It is seen from the judgment of the trial court that the suit was instituted by invoking Section 92 of the Code. The disputes revolved around a Malankara Church, which is undoubtedly a public religious trust. From the records it is seen that the trial court decreed the suit in the following manner:

“The suit is partly decreed without costs. 2nd defendant is directed to convene general body of the 1st defendant- Church in order to elect managing committee members including secretary and trustees in accordance with 1934 constitution. The defendants 4 and 5 can continue till new persons are elected. It is declared that only 2nd defendant or any other vicar or priest appointed in accordance with 1934 constitution of Malankara church has right to conduct holy mass and other religious functions in the 1st defendant church. The other defendants are restrained by permanent prohibitory injunction from bringing any other vicar or priest to 1st defendant - church for conducting holy mass or other religious functions. The other prayers are disallowed.”

4. An appeal was taken from the judgment and decree of the trial court to this Court as R.F.A.No.320 of 2014 which was dismissed on 20.05.2015 along with a cross appeal filed. Challenging the judgment and decree of this Court, some parties approached the Supreme Court with a special leave petition under Article 136 of the Constitution and after obtaining leave, Civil Appeal No.3674 of 2015 was filed. Apex Court disposed the case along with some connected matters, by judgment dated 03.07.2017. After elaborately considering all the issues involved in the suit and also exhaustively declaring all the aspects relating to nature and character of the trust, the Supreme Court dismissed the appeal.

5. Heard Sri.Sajan Varghese, learned counsel for the petitioners and Sri.S.Sreekumar learned senior counsel for the respondents. I must acknowledge the invaluable help rendered by Smt.Dipa V., Chief Librarian of this Court and her team in gathering relevant materials from National Archives of India, Janpath, New Delhi for a deeper consideration of the issues.

Historical events relating to the Code:

6. The Code of Civil Procedure, 1882 had been in force for nearly 25 years before the present Code was enacted and enforced. Statement of Objects and Reasons revealed from the report, dated 03.09.1907, of the Special Committee constituted to consider the amendment of the Civil Procedure Code reads thus:

“1.The Code of Civil Procedure of 1882 has been in force for 25 years and the experience of those years has shown that the general lines on which it proceeds are sound. The matters in which it has proved defective are for the most part matters of detail, and they arise, as it seems to us, mainly from the fact that it is impossible to frame a fixed and rigid Code in such a manner as to sufficiently meet the varying needs of an area so diversified as that to which the Code applies. In our opinion it is essential that there should be some machinery to enable variations to be introduced in procedure to meet the different requirements of different localities as well as to enable defects to be remedied as they are discovered without resort to the tardy process of legislation. We propose to make provision for these purposes by a re-arrangement of the Code. We recommend that matters of mere machinery should be relegated to rules capable of alteration by each High Court, subject to certain checks, and that those provisions only should be retained in the body of the Code in which some degree of permanence and uniformity is desirable. This rearrangement is in accordance with precedent and possesses advantages so obvious that it is needless to enlarge upon them.”

7. Later, Bills were introduced in the Council of the Governor General of India for making laws and regulations. It was published in the Gazette of India, Calcutta dated 15.02.1908 by the Legislative Department. Following observations by the Select Committee will throw some light on the considerations weighed with them:

“WE, the undersigned Members of the Select Committee to which the Bill to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature was referred, have considered the Bill and the papers noted in the appendix, and have now the honour to submit this our Report, with the Bill as amended by us annexed thereto.

2. The chief feature of novelty in the Bill is the rearrangement of the clauses and the relegation of minor provisions to a schedule which may be altered by High Courts.

We find from the papers before us that this scheme has met with the approval of every Local Government and of all the High Courts in India. In our opinion it will give a much needed elasticity to our judicial procedure and will enable minor defects to be remedied as they arise without resort to the Legislature, and we recommend it to the Council. We have introduced two changes into Part X of the Bill relating to the rule-making powers. In the first place we have provided that rules must be published before they are made; the result will be that section 23 of the General Clauses Act will apply and that there will be an opportunity for the public to offer criticisms on any proposals for alterations of procedure, before those proposals are finally passed into law. We have also made a change in the composition of the Rule Committees. It has been suggested by more than one authority that the interests of the Mofussal were not sufficiently represented on those Committees as constituted under the Bill. We recognise the force of this criticism and have accordingly provided that there shall be a Subordinate Judge on each Rule Committee and that the Vakil or Pleader on the Committee shall be enrolled, but need not be practising, in the High Court, so that a Vakil or Pleader practising in the Mofussal will be eligible.

We further recommend that the Bill shall not come into operation until the 1st January 1909, in order that the public and the profession may have an opportunity of making themselves familiar with the re-arrangement.

3. We have carefully considered the criticisms on the Bill as introduced and the changes which we recommend are summarised below. It will be observed that we do not advise any departures of importance from the conclusions of the Special Committee which met a Simla during the past summer. That Committee had before it a mass of opinions from judicial and other authorities all over India dealing with every point of civil procedure, and they arrived at their conclusions only after a careful consideration of those opinions. We should not therefore in any case have dissented from them without strong reason, but in our judgment those conclusions are right and we accept them. Since the Bill was introduced it has been again examined and revised by some of our Colleagues and the criticisms on it have been digested in the Legislative Department. By these means our deliberations have been much expedited.”

8. I deem it fit to consider the general rules relating to execution contained in Part II of the Code before going into the finer aspects. Section 36 of the Code says that the provisions of the Code relating to execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders as well.

9. The expression “court which passed a decree” or words to that effect, according to Section 37 of the Code, shall, in relation to the execution of decrees, be understood as the court of first instance, where the decree to be executed has been passed in the exercise of appellate jurisdiction. The other limb of Section 37 of the Code may not be germane for our consideration. It has been clarified in the Section itself that the said meaning for the expression “court which passed a decree” could be ascribed only if there is nothing repugnant in the subject or context indicating otherwise. A question may arise in this case as to whether the provisions in Order XLV of the Code are repugnant to the subject or context relating to execution of a decree? That I shall examine later.

10. Section 38 of the Code says that a decree may be executed either by the court which passed it, or by the court to which it is sent for execution.

11. In order to understand the real legislative intent and purport, it will be profitable to trace a little bit of history of the Code. Section 595 of the Code of Civil Procedure, 1882 (in short, “1882 Code”) was corresponding to Section 109 of the Code. The above provisions are shown hereunder: Section 595 of 1882 Code Section 109 of the Code

When appeals lie to Queen in Court.-Subject to such rules as may from time to time, be made by Her Majesty in Council regarding appeals from the Courts of British India, and to the provisions hereinafter contained, an appeal shall lie to Her Majesty in Council- (a) from any final decree passed on appeal by a High Court or any other Court of final appellate jurisdiction; (b) from any final decree passed by a High Court in the exercise of original civil jurisdiction; and (c) from any decree, when the case, as hereinafter provided, is certified to be a fit one for appeal to Her Majesty in Council.

When appeals lie to King in Council.-Subject to such rules as may, from time to time, be made by His Majesty in Council regarding appeals from the Courts of British India, and to the provisions hereinafter contained, an appeal shall lie to His Majesty in Council- (a) from any decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction; (b) from any decree or final order passed by a High Court in the exercise of original civil jurisdiction; and (c) from any decree or order, when the case, as hereinafter provided, is certified to be a fit one for appeal to His Majesty in Council.”

Section 109 of the Code underwent amendment as per the Adaptation of Laws Order, 1950. At present it reads as follows:

“109.When appeals lie to the Supreme Court.- Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies- (i) that the case involves a substantial question of law of general importance; and (ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.”

12. Section 110 of the Code relating to value of the subject matter and Section 111 of the Code dealing with bar of certain appeals were deleted by subsequent amendments. It is very important to note that no provision parallel to Section 112 of the Code was in existence either in 1882 Code or in the present Code at its inception. Obvious reason is that the Code is a pre-constitution law and significance of Section 112 arises only after commencement of the Constitution. Section 112 of the Code is a pertinent provision which reads thus:

“112. Savings.-(1) Nothing contained in this Code shall be deemed- (a) to affect the powers of the Supreme Court under article 136 or any other provision of the Constitution, or (b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.

(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction or to appeals from orders and decrees of Prize Courts.”

13. Section 598 of the 1882 Code had been rephrased and provided in Order XLV Rule 2 of the Code. Likewise, provisions contained in Sections 600 to 611 of the 1882 Code have been recast and reworded in Order XLV Rules 3 to 15 of the Code. It is true, suitable changes have been made in these provisions as per the Adaptation of Laws Order, 1950. All these aspects can be seen from a treatise by A.S.Cowdell and S.K.Chariar titled “The Parallel Codes of Civil Procedure, 1882 & 1908” (published by S.Murthy and Co., Madras in 1909).

14. The expression “decree” has been defined in Section 2(2) of the Code as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It has been clarified that the expression “decree” shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal of suit for default. However, Rule 1 of Order XLV of the Code defines “decree” in a different manner. The said provision says that “decree” in as much as it relates to appeals to the Supreme Court shall include a final order, unless there is something repugnant in the subject or context. Obvious reason for distinctively defining the expression “decree” in Section 2(2) and in Order XLV Rule 1 of the Code could only be that appeals are intended to be allowed to the Supreme Court not only from decrees passed in suits, but also from orders, finally adjudicating the rights of the parties, arising from other proceedings governed by the Code. In this perspective, it can be held that the definition of “decree” in Order XLV Rule 1 is much wider in scope than the definition in Section 2(2) of the Code.

15. Section 598 of the 1882 Code had been reframed in the original Order XLV Rule 2 of the Code, which was later amended by Act 104 of 1976 by adding Sub-rule (2). Rule 2(1) would say that whoever desires to appeal to the Supreme Court shall apply by petition to the court whose decree is complained of. Sub-rule (2) provides for a time limit for disposal of such a petition.

16. Rule 3 of Order XLV of the Code deals with a certificate as to value or fitness. Rule 6 speaks about the effect of refusal of a certificate mentioned in Rule 3. Rule 7 of Order XLV is about insisting on security by the court granting certificate for filing appeal to the Supreme Court. Except for some cosmetic changes and deletion of Sub-rule (2) of Rule 7 of Order XLV of the Code, the provisions initially enacted are retained at present in the Code.

17. Another provision is Rule 8 of Order XLV of the Code. I shall reproduce it, as it existed in the original form as well as in the present form: Section 603 of 1882 Code Order XLV Rule 8 Admission of appeal and procedure thereon.-Where such security has been furnished and deposit made to the satisfaction of the Court, the Court shall- (a) declare the appeal admitted, (b) give notice thereof to the respondent, (c) transmit to His Majesty in Council under the seal of the Court a correct copy of the said record, except as aforesaid, and (d) give to either party one or more authenticated copies of any of the papers in the suit on his applying therefor and paying the reasonable expenses incurred in preparing them.

Admission of appeal and procedure thereon.-Where such security has been furnished and deposit made to the satisfaction of the Court, the Court shall- (a) declare the appeal admitted, (b) give notice thereof to the respondent, (c) transmit to the Supreme Court under the seal of the Court a correct copy of the said record, except as aforesaid, and (d) give to either party one or more authenticated copies of any of the papers in the suit on his applying therefore and paying the reasonable expenses incurred in preparing them.

It is patently clear from the above quotation that where security had been furnished and deposit made to the satisfaction of the court as provided in Rule 7, the court (from whose decree an appeal is to be taken to the Supreme Court) has no other option, but to declare the appeal admitted to the Supreme Court. The phrase “court shall declare the appeal admitted” is certain and unambiguous. It also directs that notice thereof should be issued to the respondent. Whether these provisions could still operate in the light of the pertinent constitutional provisions and stipulations in the Supreme Court Rules, 2013 is a matter worthy of consideration. Other Rules in Order XLV of the Code deal with certain powers of the court, whose decree is complained of, to handle the emerging situations.

18. Order XLV Rule 15 of the Code deals with the procedure to enforce orders of the Supreme Court. It reads thus:

“Procedure to enforce orders of the Supreme Court.- (1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred.

(2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct and shall upon the application of either party give such directions as may be required for the execution of the same; and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.

(4) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.”

19. The question naturally arising is whether these provisions can be applied to a given case in the scenario emerged subsequent to the coming into force of the Constitution of India?

Relevant Articles in the Constitution:

20. I shall extract the relevant provisions in the Constitution for clarity of expression:

“132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.-(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134A that the case involves a substantial question of law as to the interpretation of this Constitution.

(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided.

Explanation.-For the purposes of this article, the expression “final order” includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.

133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.-(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under article 134A- (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

(2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.

134A. Certificate for appeal to the Supreme Court.-Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1) of article 134- (a) may, if it deems fit so to do, on its own motion; and (b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.

136. Special leave to appeal by the Supreme Court.-(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

21. Article 132 of the Constitution deals with appeals involving interpretation of the Constitution arising out of any proceeding in a High Court, that is, civil, criminal or otherwise. This Article ensures that though a High Court may pronounce upon the validity of an Act or decide any other question involving the interpretation of the Constitution, in all such cases the decision of the High Court shall not be final and that the final authority of interpreting the Constitution must rest with the Supreme Court (see Election Commission v. Venkata Rao (AIR 1953 SC 210)).

22. Article 133 of the Constitution is with respect to the appellate jurisdiction of the Supreme Court in appeals from High Courts in regard to civil matters. While Article 132 is confined to constitutional questions only, Article 133 is confined to civil appeals only on any question other than the interpretation of Constitution; of course Clause (2) of the Article enables a party to rake up a substantial question of law as to the interpretation of the Constitution as well. This Article lays down that apart from appeal by special leave under Article 136 of the Constitution and appeal on constitutional ground under Article 132 an appeal shall lie to the Supreme Court from a civil proceeding before any High Court on the following conditions: (a) The subject of appeal is a 'judgment, decree or final order'.

(b) The High Court grants a certificate for such an appeal on the grounds mentioned in the Article.

It is an indisputable proposition that there is no case where a certificate could be obtained as of right. And in all cases, irrespective of the value, issuance of certificate is at the behest of the High Court, provided, of course, the case involves a substantial question of law.

23. It is to be mentioned that the discrepancy existed between the provisions in Section 109 of the Code and the amended Article 133 of the Constitution has been removed by the Code of Civil Procedure (Amendment) Act (49 of 1973), which brought the text of Section 109 in line with that of the amended Article 133.

24. Article 134A of the Constitution speaks about the certificate to be issued by the High Court for appeal to the Supreme Court. Prior to insertion of this Article, there was no provision in Articles 132, 133 or 134 as to when and in what form an application for a certificate of fitness for appeal to the Supreme Court was to be made to the High Court and what limitation, if any, was applied to such an application for certificate. In order to strike uniformity, this provision was introduced.

25. After the amendments made to the Constitution in 1972 and 1978, (a) the procedure for granting or refusing certificate has been laid down in Article 134A (b) the High Court while determining whether a certificate should or should not be granted should focus its attention to two questions, viz., (i) Whether the case involves a substantial question of law of general importance? (ii) Whether, in the opinion of the High Court, the said question needs to be decided by the Supreme Court?

26. It has been unequivocally declared in Ahmedabad Mfg. and Calico Ptg. Co.Ltd. v. Ramtahel Ramanand and others (AIR 1972 SC 1598) and Ajantha Transports (P) Ltd., Coimbatore v. M/s.T.V.K. Transports, Pulampatti (AIR 1975 SC 123) that even when a certificate has been granted by the High Court under Article 133 of the Constitution, the Supreme Court would not be precluded from entertaining a preliminary objection that the appeal does not lie under that Article. In otherwords, it is open to the Supreme Court to see whether the case fulfills the requirement of Article and to refuse to entertain the appeal if it does not lie under the Article in spite of the certificate.

27. Article 136 of the Constitution is an important provision conferring power on the Supreme Court to exercise its discretion in granting special leave to appeal dehors the other provisions referred to above. Based on precedents, learned author Durga Das Basu in Shorter Constitution of India (14th edition, Vol.1, p.825) has made the following observations:

“Art.136 does not confer a right of appeal on any party, but it confers a discretionary power on the Supreme Court to interfere in suitable cases. It does not inhibit any one from invoking the Court's jurisdiction. The power is vested in the Supreme Court but the right to invoke the Court's jurisdiction is vested in no one. The exercise power of the Court is not circumscribed by any limitation as to who may invoke it. “Judicial discretion” means the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law; a Court's power to act or not to act when a litigant is not entitled to demand the act as a matter of right. The word “discretion” implies absence of a hard-and fast rule. It only gives certain latitude or liberty accorded by statute or rules to a Judge. ….....”

28. It is a well settled proposition in law that the appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with the ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. It is a plenary power, “exercisable outside the purview of ordinary law” to meet the pressing demand of justice. Article 136 confers a wide discretionary power on the Supreme Court to interfere in suitable cases. Article 136 is a special jurisdiction. It is a residuary power. It is extraordinary in its amplitude and limit. When it chases injustice, sky's the limit. Article 136 neither confers on anyone a right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking its jurisdiction. The power is vested in the Supreme Court, but the right to invoke the jurisdiction is vested in no one. (see Ramakant Rai v. Madan Rai ((2003) 12 SCC 395), Arunachalam v. P.S.R. Sadanantham ((1979) 2 SCC 297), P.S.R.Sadanantham v. Arunachalam ((1980) 3 SCC 141) and Esher Singh v. State of A.P. ((2004) 11 SCC 585).

29. A constitution bench in Durga Shankar Mehta v. Raghuraj Singh (AIR 1954 SC 520) held thus:

“It is well known that an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself. The powers given by Article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in case whether the needs of justice demand interference by the Supreme Court of the land. The Article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a court or tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions or for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this Article in any way.”

A three Judge bench of the Supreme Court in Kunhayammed v. State of Kerala (2000 (3) KLT 354) has reiterated that while hearing a petition under Article 136 of the Constitution the court is not exercising any appellate jurisdiction. I shall quote.

“............... In our opinion, the legal position which emerges is as under:-

1. While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave;

2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out;

3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the court may dismiss the appeal without noticing the respondent.

4. In spite of a petition for special leave to appeal having been filed, the judgment decree or order against which leave to appeal has been sought for, continues to be final effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.”

These provisions and precedents make it amply clear that an appeal to the Supreme Court is not a matter of right for a litigant.

Bird's eye view of the relevant Rules:

30. Now I shall turn to the Supreme Court Rules, 2013 (in short, “Rules”). The Rules came into force on 19.08.2014. Article 145 of the Constitution is the source of rule making power conferred on the Supreme Court. Part II of the Rules deals with the appellate jurisdiction of the Supreme Court. Part B in this part deals with civil appeals. Order XIX in this part deals with appeals on certificate by a High Court. Rule 1 therein says that where a certificate of the nature referred to in Clause (1) of Article 132 or Clause (1) of Article 133 has been given under Article 134A or under any other provision of law, the party concerned shall file a petition of appeal in the court. Other Rules deal with the procedure for filing appeal.

31. Provisions regarding special leave petitions under Article 136 of the Constitution in respect of civil matters have been specifically provided in Order XXI falling within Part II of the Rules. Powers conferred on the Supreme Court by the aforementioned constitutional provisions and the Rules are expressly saved by Section 112 of the Code.

Oral submissions:

32. Learned counsel for the petitioners relying on certain decisions contended that the decree passed by the trial court got merged with the decree of the Supreme Court and therefore the procedure in Order XLV Rule 15 of the Code should be followed for executing the decree.

33. The concept “merger of decrees” is well known in law. The doctrine of merger is on the principles of propriety in the hierarchy of justice delivery system. It does not make any distinction between an order of reversal, modification or an order of confirmation passed by an appellate authority. The doctrine of merger postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. I need not expatiate this principle by citing numerous authorities to overburden this order. The mandate in Section 37 of the Code, that where the decree to be executed has been passed in the exercise of appellate jurisdiction “the court which passed a decree” will be the court of first instance, unless there is anything repugnant in the subject or context, shall be presumed to be enacted with full knowledge and remembrance of the principles of merger. Therefore, in the teeth of an express provision, the principles of merger of decrees cannot be pressed into service.

34. According to the learned senior counsel for the respondents, the petitioners have no right to invoke Order XLV Rule 15 of the Code. It is his submission that if the petitioners' argument is accepted, this Court will be inundated with execution petitions under Order XLV Rule 15 of the Code. He would further contend that the decree passed by the trial court had already been executed. 2nd defendant did convene the general body of the 1st defendant church and managing committee members had been elected. It is therefore contended that nothing remains to be executed. However, this being a disputed question of fact, I do not propose to decide it in this proceedings. Proliferation of execution petitions before this Court cannot be the sole reason for disallowing the petitioners' contentions, if they are legally sustainable.

35. Learned counsel for the petitioners relied on a decision by a learned single Judge in Philip Ancheril C. v. Rev. Fr.K.C.Zacharia (2009 (1) KHC 28). Facts in the case would show that an execution petition was filed before this Court by invoking the provisions in Order XXI Rules 10, 11 and 15 and Order XLV Rule 15 of the Code. Learned Judge, on finding that the suit in which the decree was passed had been disposed of by a learned single Judge and thereafter an intra-court appeal had been preferred before a division bench of this Court, whose decree was carried to the Supreme Court, held that the execution petition should be placed before a division bench in accordance with the provisions of Order XLV Rule 15 of the Code. However, no discussion as to applicability of the said provision in the constitutional context has been made by the learned single Judge.

36. A division bench of this Court in Abraham Kathanar v. Yohannan (2018 (3) KLT 555) considered the ratio in Philip's case. Distinguishing on the facts in Philip's case, the division bench directed the Registry to transmit the decree passed by the Supreme Court for execution to the 1st Additional District Court, Ernakulam (Special Court for Church Cases). There also pertinent legal questions regarding the executability of such a decree under Order XLV of the Code was not gone into, except distinguishing the view taken in Philip's case. These two decisions cannot be taken as binding precedents for deciding the questions posed in this case.

37. Learned counsel for the petitioners relied on Nandkishore v. Sau.Inderabai Holkar (AIR 1981 M.P. 21) and State of Orissa v. Biranchi Narayan Das and others (2017 KHC 3462), a decision rendered by the Orissa High Court. I am afraid, no observations therein would throw any light on the issues on hand. Besides, none of the constitutional provisions were examined in the above decisions. Hence those decisions also cannot be taken as guiding precedents.

Ratiocination:

38. In the foregone paragraphs, I have explained evolution of the provisions in Order XLV of the Code. Section 109 of the Code, in its original form, was almost a verbatim reproduction of the old Section 595 of the 1882 Code, except for some changes mentioned above. It will be clear from the provisions of the 1882 Code and the original provisions in the present Code (before the Adaptation of Laws Order, 1950) that an opportunity had been provided to a litigant to appeal to the Privy Council (Her Majesty in Council or to His Majesty in Council). Those provisions were highly useful at that time, considering the hurdles, both legal and material, experienced by ordinary litigants to reach upto the Privy Council without the indulgence of High Court. Needless to emphasize, the right conferred on a litigant was only a civil right (either common law right or statutory right) and not a constitutional right, as it was not available then. Conspicuous absence in the 1882 Code and in the present Code at its inception of a provision similar to one under Section 112 of the Code speaks volumes in this regard. As mentioned earlier, Section 109 of the Code was amended by Act 49 of 1973 to make it concomitant with Article 133 of the Constitution. Section 112 of the Code expresses in clear terms that the provisions in Order XLV of the Code must yield to the provisions in the Constitution and the Rules made by the Supreme Court.

39. The provisions in Order XLV, with reference to Rules 2, 3, 7 and 8 as they now exist, will make it clear that a special procedure has been prescribed for filing appeal before the Supreme Court. From the scheme set out in the Constitution and the Code, it can be explicitly seen that the expression “the court whose decree is complained of” can only be High Court. As stated above, Rule 8 of Order XLV of the Code says that where security has been furnished as provided in Rule 7 and deposit has been made to the satisfaction of the Court (read as High Court), the Court shall declare the appeal admitted and give notice to the respondents and also do other things required as per the mandate of the Rule. No doubt, while dealing with a civil appeal, the Supreme Court is also governed by the provisions in the Code notwithstanding that it possesses plenary powers. Whether the above mentioned course can be adopted by High Court in the constitutional scheme? Answer can only be in the negative. Discussions made supra will show that preferring a civil appeal to the Supreme Court cannot be regarded as a matter of right for any party. However, in this case I need not pronounce anything on the purpose of continued existence of the provisions in Order XLV of the Code. There are atleast two reasons preventing me from deciding that aspect. Firstly, there is no challenge in this case against the virus of the provisions in Order XLV of the Code. Secondly, the case on hand can be decided even without examining the efficacy of the provisions in Order XLV of the Code. Hence I consciously refrain from passing any comment on the efficacy and the reason for continued existence of the provisions in Order XLV of the Code vis-a-vis, the constitutional provisions mentioned above. I leave it at that. Let that be deeply probed in an appropriate case.

40. In this case, the records would show that the parties, aggrieved by the decree of this Court, filed an application before the Supreme Court requesting it to invoke its extraordinary and discretionary jurisdiction under Article 136 of the Constitution. It is evident the Supreme Court allowed the appellants to file a civil appeal by granting leave. The civil appeal was disposed of after a full-fledged hearing. I point out these aspects to make it clear that no certificate under Rule 2 or Rule 3 of Order XLV of the Code was applied for or granted by this Court. In otherwords, the appellants before the Supreme Court got their appeal admitted by invoking the jurisdiction of the Supreme Court under Article 136 of the Constitution. It is therefore crystal clear that the appeal was not admitted as per Rule 8 of Order XLV of the Code.

41. On a meticulous evaluation of the scheme in Order XLV of the Code, it can be undauntingly seen that it is a complete Code in itself. Execution of a decree passed by the Supreme Court in a civil appeal filed as per the prescriptions in Order XLV can alone be entertained under Order XLV Rule 15 of the Code. In otherwords, decree passed in a civil appeal admitted to the Supreme Court otherwise than the procedure provided in Order XLV of the Code cannot be executed by invoking Order XLV Rule 15.

42. Section 109 and the provisions in Order XLV of the Code are subservient to the constitutional provisions referred to above and that fact will be amply clear from Section 112 of the Code itself. A decree passed by the Supreme Court in a civil appeal, brought before it by invoking the constitutional provisions referred to above and not through the channel provided under Order XLV of the Code, cannot be executed in accordance with Order XLV Rule 15 of the Code. Advent of the Constitution and later amendments made to the Code, to make it consonant with the constitutional provisions, clearly show that a civil appeal could be taken to the Supreme Court through two channels. One by invoking the provisions in the Constitution and the Rules and the other as provided for in Order XLV of the Code. Section 112 of the Code in so many words says that the constitutional provisions will have a primacy. Hence, the mode of execution of such appellate decrees also must be different. Corollary of this finding is that a decree passed by the Supreme Court in a civil appeal entertained by invoking the constitutional provisions can be executed under the general principles in Part II of the Code. The provisions falling in this part relating to the execution of decrees will apply to such cases. Indeed, the rules in Order XXI of the Code will also come into play. If a civil appeal had been taken to the Supreme Court through the channel provided in Order XLV of the Code, then execution of the decree could be sought only in accordance with Order XLV Rule 15, as the provisions in the Order is a self-contained Code in itself.

Conclusion:

43. Findings of the Court are encapsulated thus: Section 109 and Order XLV of the Code materially differ from the basic rules contained in Part II and Order XXI of the Code relating to execution of decrees. The provisions in Order XLV form a separate Code within the Code. A decree passed by the Supreme Court in a civil appeal can be executed under Order XLV of the Code only if the appeal had been taken to the Supreme Court in accordance with the provisions in the Code.

In the present scenario, it looks like a difficult proposition, if not impossible, to get a civil appeal admitted to the Supreme Court by invoking Rules 7 and 8 of Order XLV of the Code. Be that as it may, I do not intend to make pronouncements on the utility or efficacy of the provisions in Order XLV of the Code as such questions are outside the purview of this case. Since the appellants before the Supreme Court got a verdict in a civil appeal admitted under Article 136 of the Constitution, they can only approach the court competent to execute the decree as provided in Sections 37 and 38 and also by following the rules in Order XXI of the Code. Although the provisions in Order XLV could be treated as a Code within a Code, in the context of a decree passed in an appeal entertained by the Supreme Court by invoking Article 136 of the Constitution, there is nothing repugnant in the subject or context, as mentioned in Section 37 of the Code, to think that “the court which passed the decree” shall not be the court of first instance.

In the result, the execution petition wrongly laid before this Court shall be returned. If the petitioners are desirous of filing such a petition, they can only approach the court which passed the decree, viz., the I Additional District Court, Ernakulam.

Parties shall bear their costs.