(Prayer: Petitions (disposed of on 28-4-1943) praying that in the circumstances stated therein the High Court will be pleased to grant leave to the petitioner herein to appeal to His Majesty in Council against the judgment and order of the High Court dated 27-1-1942 and passed in A.A.O. No. 339 of 1938 preferred against the order of the Court of the Subordinate Judge of Ramnad at Madura dated 25-7-1938 and made in E.A. No. 237 of 1938 in E.P. No. 79 of 1933 in O.S. No. 5 of 1921.)

Patanjali Sastri, J.

These are petitions for leave to appeal to His Majesty in Council from the order made in C.M.A. No. 339 of 1938 and C.R.P. No. 2005 of 1941 whereby the respondent was declared to be an agriculturist entitled to the benefits of the Madras Agriculturists Relief Act (IV of 1938) and his application for relief under that Act by way of scaling down a decree passed against him was remanded to the lower Court for disposal in the light of the judgment of this Court. The facts giving rise to these proceedings are stated in that judgment and need not be recapitulated here. It will be seen that the Civil Miscellaneous Appeal and the Civil Revision Petition related to the same subject-matter, namely, the scaling down of the decree debt and raised the same questions for determination; and although a preliminary objection was taken to the maintainability of the appeal, it was considered unnecessary to pronounce on the point as the grounds of objection to the decision of the lower Court appeared to be such as would warrant interference by this Court under S. 115 of the Civil Procedure Code in the Civil Revision Petition preferred under that section. Arguments in the present proceeding have accordingly proceeded on the footing that the order of this Court from which an appeal is now sought to be preferred to His Majesty in Council is one passed in the revision petition aforesaid.

The petitioner seeks a certificate under Ss. 109(a) and 110 or, in the alternative, under S. 109(c) of the Civil Procedure Code. It is not disputed that the case fulfils the requirements of S. 110 as regards the value of the subject-matter. But the respondent contends that clause (a) is inapplicable because, firstly, the order sought to be appealed against is not a final order as it has not finally disposed of the rights of parties but has left them to be determined by the lower Court and secondly, it is not an order passed on appeal as it must be regarded as one passed in the civil revision petition already referred to. It is unnecessary to consider the first of these objections as we are of opinion that the second is bound to prevail. The Code of Civil Procedure draws a well marked distinction between Appeals which are dealt with in Part VII and Revision which is dealt with in Part VIII, and S. 115 which empowers the High Court to exercise revisional jurisdiction further emphasises the distinction by providing that this power can be exercised only in cases in which no appeal lies thereto. It is therefore difficult to see how an order under this section which can only be made when there is no appeal can be said to be an order passed on appeal. The term appeal is not defined in the Code and it may, in a comprehensive sense, include a revision petition. But in the context of the relevant provisions of the Code on which the present issue turns, the term appears to be used in the narrower technical sense in contradistinction to revision. The Allahabad High Court in Suraj Singh v. Phul Kumari (48 All. 226) and the Patna High Court in Krishna Chaudra Deb v. Raja Rajendra Narayan Bhag Deo (15 Pat. 659) have also taken the same view. It follows that the order under consideration is not appealable under S. 109(a) even assuming that it was a final order within the meaning of that section.

Petitioners learned Counsel relied strongly upon the decision of the Calcutta High Court in Secretary of State for India in Council v. British India Steam Navigation Co. (13 C.L.J. 90), which doubtless supports his contention. The decision was based mainly, if not wholly, upon the fact that the provisions of the Letters Patent, as they then stood, defining the jurisdiction of the High Court did not refer to revisional jurisdiction as distinct from the appellate jurisdiction. An order made under S. 115 of the Code must, it was therefore considered, be one made in the exercise of appellate jurisdiction and could well be regarded as an order passed on appeal. But, as pointed out by the learned Judges of the Patna High Court in the decision already referred to, there is a great difference in meaning between the expressions passed on appeal and made in the exercise of appellate jurisdiction, and while every order passed on appeal is no doubt made in the exercise of appellate jurisdiction, it does not necessarily follow that an order made in exercise of such jurisdiction is an order passed on appeal. Apart from this, the reasoning of the learned Judges in Secretary of State for India in Council v. British India Steam Navigation Co. (13 C.L.J. 90) loses much of its force after the amendment of the Letters Patent in 1928 whereby reference is expressly made in Cl. 15 to the revisional jurisdiction of the High Court. Reliance was also placed on the decision of a Full Bench of this Court in Chidambara Nadar v. Rama Nadar (I.L.R. 1937 Mad. 616 = 45 L.W. 457 (F.B.) where it was held that the word appeal in Art. 182(2) of the Indian Limitation Act includes revision petitions and that, consequently, when a revision petition filed against a decree of a Subordinate Court was dismissed, the date of the dismissal furnished the starting point of limitation for execution of the decree. The learned Judges recognised that the word appeal had to be construed differently in different contexts, but, in view of the peculiar difficulties and anomalies which would otherwise result, they held that the term as used in Art. 182(2) must include revision petitions also, and they referred to the decision in Secretary of State for India in Council v. British India Steam Navigation Co. (13 C.L.J. 90) as an instance where that word was understood in the wider sense. But whatever reason might exist for giving the word appeal in that article an extended meaning, we are unable, for the reasons already indicated, to accept the view that an order made under S. 115 of the Civil Procedure Code is an order passed on appeal within the meaning of S. 109(a).

Two instances have been brought to our notice where appeals were in fact entertained by the Privy Council against orders passed under S. 115: Balakrishna Udayar v. Vasudeva Iyer (40 Mad. 793 = 6 L.W. 501 (P.C.) and Lachmi Narain Marwari v. Balmukund Marwari (4 Pat. 61 [LQ/PC/1924/52] = 20 L.W. 491 (P.C.). The former case raised questions as to the validity of an election to a temple committee and the powers of a District Court under S. 10 of Act XX of 1863. Having regard to the nature of the dispute and the questions involved, it may be assumed that this Court granted the requisite certificate under Cl. (c) of S. 109 and the case is not therefore in point. In the other case no objection to the maintainability of the appeal was raised before their Lordships, and from the order granting the certificate which is reported in Lachmi Narain Marwari v. Balmukund Marwari (6 Pat. L.J. 116) it would appear that, though the case was treated as one falling under S. 109(a), the point now under consideration was not raised, the only objection dealt with being that the order sought to be appealed from was not a final order within the meaning of that provision.

As regards the petitioners alternative claim to a certificate as to fitness under Cl. (c) of S. 109, we do not think that the clause can have any application here, as it has been held that it contemplates special cases in which the matter in dispute is not measurable in money and the questions involved are of great public or private importanceSee Radhakrishna Iyer v. Swaminatha Iyer (44 Mad. 293 = 13 L.W. 321 (P.C.) and Banarsi Prasad v. Kashi Krishna Narain(23 All. 227). This case is not, in our opinion, a case of that kind and no certificate under that clause can, therefore, be granted.

The petitions fail and are dismissed with costs of third counter-petitioner in No. 2526 and No. 2565 and of the second counter-petitioner in No. 2530.