1 S.C.R. Company in an appeal properly filed before the taxing authorities to contend that under the terms of the agreement with Caltex (India) Ltd., the Company is the owner of the goods received by it and that on
that account consumption of those goods by it for its own vehiclCll did not amount to sale and the Sales Tax Officer will be entitled to consider that question on its merits and will not be bound by any expression
of opinion by the High Court as to the interpretation of the agreement produced before it. Having regard to the circumstances, there will be no order as to costs. Appeal clisrni8sed.
ITTAVIRA MATHAI v . . VARKEY VARKEY AND ANOTHER (S.J. IMAM, K. SUBBA RAO, RAGHUBAR DAYAL, and J. R. Mul)HOLKAR, JJ.) Limitaticm-Suit filed beycmd time-Decree, if a nu//ity- Paint of limitation n'ot rai<ed in High Court, if entertainable by ,9uprern.rt. Oou.rt-Recei,ver'a po~seasion., -if muqt ensure to aucc~s ful party-Appeal-Forum-Abrogated by subsequent legis/,aticm- 1/ and whe• can be cluzllen(Jfd-Travancore High Courl Act, 1099 (IV of 1099)), s. 11 (1), M repealed by Ordinance II o/ 1124- ln<lian Limitation Act, 1908 (9 o/ 1908), s. 3. Arts. 47, 142. One lttiyavira, the deceased father of the appellant
puxhascd propertiei and p.Jd part of the con•ideration for the tranMction in cash arui"f1.>l' the balance executed two hypothe- cation bonds in favour of his vendors, Ramalinga Iyrr and
Raman Vela Yudhan. Ranulinga Iyer a'8igned his hypothe- cation bond in favour of one Sankara Rama Iyer. He had cxr-c•1tcd a promissory note in favour of one Anantha Iyer who, •ftcr hfa death, institurcd a suit agaimt his son Sankara Subha Iyer for rec,wery of the amount thereunder and obtained a
decree. T1e4ting the deed of assignment c~ecnted by Ramalinga B~o/ s.,., ltUlw1ri11 Lid. Dub1. S•lu Tax Vffici1r Shah, J. ;: Itiu1iTa Afalhai Y11rk1J Vurkt)' 496 . . SU;I'REME..: COURT REPORTS [1964]. VOL ..
·~–· ·——— Iyer in favour ·of .Sankara ·Rama Iyer as· a sham document, Anantha · Iyer attached the mortgagee rights of Ramalinga – · · Iyer in the hypothecation bond and· eventually purchased them •. In a partition in Anantha.lycr's family, the.rights under the · hypothecation bond purchased by him were allotted to his share • . and to that of his brother.
These two persoris instituted a suit'". against lttiyavira · beillg 0. S. No. 59 of 1093 and· obtained· a – ___ decree forrealisation·of thi: amount against him and transferred — . their dec1ee to orie Venkiteswara Iyer who. at the court auction held in execution of that decree, purchased the hypothecated .: properties,_w_h_ich are properties· in the suit and . eventually. obtained possession of the properties on 12. 7._ 1099.'
'. '" "' 1:' Before the institution of 0. S. 59 of !093 by .Anantha Iyer and his brother, Ittiyavira had executed a sale deed of these properties on 8. 10. 1093 in favour of his son, the appe- " llant. The appellant was not· ma-le a party to 0. S; No. 59 of · \ 1093.
· It1iyavira died · in · the 1107 . and on 2. 2. 1108, · · Venkiteswaia Iyer sold all· the. suit properties to the plaintiffs. respondents. Thereafter the respondents instituted proceedings under s. 145 of the Code of Crimirial Procediire ·in the Court of . Magistrate claiming their posses~ion over the. suit properties which was disputed by the appellant. The properties were " attached and 'placed in the possession.of. the. Receiver appointed. by the court. Eventually, the court held that the appellant's possession over the properties be .maintained until othenvise ordered by the competent civil court. . The High Court of
Travancore affirmed- the order of the Magistrate and the appe- Hant was handed over the possession of the properties by the — Receiver .. Consequently, the .respondents instituted a suit out . of which this appeal arises; The trial court dismissed the suit .·· and that decision' was rever>ed by• the High Court.· It was ·: contended ·before this Court that the decree obtained by · Anantha Iyer in 0. S. 59/1093 was a nullity because the suit. was barred by time . .' It wa• further- urged that the appeal b<lore the- High Court should have· been heard not· by. a
Division Bench of merely two Judge<, but by a Bench of three Judgos as provided ins. II (l) of the· .Travancore High Court _._Act, 1099;·: : … ·., .- H•ld, .that if the suit· was barred by time and yet, the
court decreed it, the cou1t :.would be-· committing an illegality—. and the aggriev<d party would be entitl.ed to' have the decree' · set aside by pref.rring an appeal against it. · As has often been -said, courto; have jurisdiction io decide right or to decide \vrong .. and even th')u"h ·they decide wrong, rhe decree rendered by- them cannot be
0treated as nullities. · 1 S.C:.R. Maqhul Ahmad v. Onkar Pratap Narain Singh, A. I. R. 1935 P. C. 85, held inapplicable. Where the question of limitation WAS not raised in the Hi~h Court, it cannot be allowed to be raised in this Court whCn the qllestion \Vas one of 111ixed fact <>f la'"'·
Jn the instant case the possession of the Receiver during the proceedings under s. 145 of the Code of Ctiminal Procedure would neceSiarily unure for the benefit of the succeosful party and if this period is taken into account, the respondent's iuit would be well within time,
HelJ,, further that no party has a vested right to have his appeal heard by a specified number of judges and no right of the party has ht-en infringed merely because it was heard by two Judges and not by three Judges.
liti~ant has no right to contend that a tribunal before whom he should have taken an appeal when he instituted the suit, should not be abolished and unless it can be shown that the repe!'i of the Travancore High Court Act wag unconstitutional, whatever right of appeal may have vested in the party stood abrogated by the competent legislature.
CIVIL A" .•ELLATE JuRISDICTION: Civil Appeal No. 372of1960. " Appeal from the judgment and decree dated April tl 1955, oi the former High Court of Travancore-Cochin in Appeal Suit No. 721 of 1951.
Manual T. Paikedy, Mahalin(Ja Iyer and Ganpat Rai, for the appellant. V. A. Syed Muhu nmad, for the re5pondent. 1963. January 15. Court was delivered by The Judgment of the MunHOLKAR, ].-This is an appeal by certi·
ficate from the judgment of the TravancorP,-Cochin High Court which allowed the appeal preferred by the respondents from the decree of the District Court lttuira M.ilu. i r ., key V a.1 A·,,
' ' . ', . . 1963 lttavira Mathai ' v. . . •' – . Yark9 Varkey Mudlwlkar, "J. . . . ' .•.. ~—· … — . 7 ( ·,,,,.. .. ·.,, … SUPREME COURT RE.PORTS [1964] VOL. of Parur dismissing their ~uit for declaration of title
to and recovery of possession of certain properties and ' for other consequential reliefs. The relevant.facts are as follows : . . . The . 23 I items of property comprised in the .
schedule to the plaint belonged originally to two persons Ramalinga Iyer ("lyen" as described by the High Court) and Raman Velayudhan .. They sold. them on. 6-6-1080 (Malayalam .Era which roughly
correspondS to the year 1905) to Ittiyavira the deceased father of the appellant-defendant No •.. 1, – Part of the consideration· for the sale was paid by Ittiyavira in cash and for the· balance, he executed ·
two hypothecatioi:I bonds in favour his vendors on the same qate. One of the bonds was executed in favour of Raman Velayudhan_and the amount secured there- .under was Rs .. 308-8-0.
In respect of this amount, · ·items of property Nos. 3; 5, 14 and 18 were hypothe- cated with·Raman Velayudhan by ·Ittiyavira. The other bond was in favour. of Ramalinga Iyer and . under this bond, Ittiyavira hypothecated with him
items .Nos. 1, :!, 4, 6-13, 151-7, and 19-23 and also the remaining items, subject to the hypothecation bond in favour of Raman Velayudhan, for securing an amount. of Rs. 2,~!ll-8 0.
. On · 3-10-1082,. Ramalinga Iyer assigned his hypothecation bond in favour of one Sankara Rarria Iyer ("I yen" as described by the High Court). The parties are in dispute' . concerning this transaction. ·According . to one ·of ·
them, the deed· of' assignment Ex. · V ·was a sham document and was. not intended to take effect while according to the other, it was'\ genuine document …. It. would appear that Ramalinga Iyer had
executed a promissory note in favour of one. Anantha . Iyer ("lyen" as described by the High Court). After · · -~he death of Ramalinga Iyer, Anantha Iyer instituted · · a'suit against ~is son S1\ukara Subha Iyer ("Iyen" ~ · described by the High Court) for recovery of the
amount thereund.er and obtained a decree Ex. VI on 13-11-1088. Treating the . deed of assignment executed ·by Ramalinga Iyer in favour of Sankara Rama Iyer as a sham document, Anantha Iyer
.attached the mortgagee rights of Ramalinga Iyer in the hypothecation bond which had been executed in his favour by Ittiyavira. The rights under this bond were sold in execution and were purchased by
Anantha Iyer at court auction. In a subsequent partition in Anantha Iyer's family, the rights under the hypothecation bond purchased in execution by him were allotted to his share and' that of his brother
Manicka 1 yer ("I yen" as described by the High Court). Thereafter, these two persons instituted a suit against Ittiyavira b.eing 0. S. No. 59 of 1093 in the District Court at 'Parur and obtained a decree for
realisation ot the amo~nt ~gainst lttiya'(ira. The . decree-ho~ders subsequently transferred th~ir, 1cfetree to one Venk1teswara Iyer ("lyen" · as descnbed, by the High Court) . which the latter executed and at the
court auction held in execution of that decree, he himself purchased the hypothecated properties which are the properties in the suit on 27-4-1099. ·Exhibit C is the sale certificate which was granted to him by
the court. Venkiteswara Iyer eventually obtained possessiQD..ofthe properties on 12-7-1099. It would appear that Raman Velayudhan also assigned the hypothec:ation bond which was executed
in his favour by lttiyavira in favour of some person who eventually sued on the bond and obtained decree in 0. S. No. 462 of 1094 in the court of the Munsiff, 1\1oovattupuzha. · In. execution of that decree, items
Nos. 3, 5, 14 and 18 were purchased by one Mathai Ouseph the brother of the second defendant in the suit on 10-11-1096. In pursuance of this decree, Mathai Ouseph obtained delivery of possession of 4
items of property (item, 31 5, 14 and 18) on 19-6-1098 lttav,ra Matlusi Vatkey Yark1.1 Mudliolk•" /. llltn:ira Mathai v. Vukty Vork1y M1nili lkor, J, and thereafter sold them to defendant No. 2 (wife of
appellant) on 5 12-1104. Even before the institution of 0. S. 59 ofl 093 by Anantha Iyer and his brother, Ittiyavira had exrcutcd a sale deed in favour of his son -the appe· II.mt before us-whcrrunder, he conveyed to him
all the properties in the suit. The date on which the sale deed was executed was 8-10-1092. lt may, however, be mentiowd that the appellant was not made a party to 0. S. No. 59 of 1093 filed b/
.'\nantha I v~r and his brother and the contention raised by tl;e respoBdcnts is that the sale in favour of the appellant is not a genuine transaction and th~rcfore he wa~ not a necessary party to the suit.
lttiyavira died in the year 1107 and on 2-2·1 l113, Venkiteswara Iyer sold all thP. suit pro- perties t<:> the plaintiffs respondents. Thereafter, the resp•;ndents institutr.d proceedings under s. l 4ii of the Code of Criminal Procdure in the court of the
Magistrate, First Cla,s, Perumbavoor claiming that \hey were in posses,ion of the suit properties, that the appdlant was disputing their possession and that there was a likelihood of a breach of peace because
of the attempt of the appellant to "obstruct'' their posses,ion. 111 these proceedings, the properti~s were attached and placed !n th" pos,ession of the Receiver app'.lintcd by the court.
Eventually. the court held that the properties werr in the possession of the a ppe- llant awl ordered that his possession be ma;ntainecl until orh,·rwise orden·cl bv a competent Civil Court.
I he <ml er of the ~hgi,trate was affirmed by the Travancorc High Court and thereafter, the .Rcc.-ivcr handed over the possession of the properties to the a;:>pe!lant. Consequmt 11pon this order the respon-
dents i,mituted a suit out of which this appeal arises. Their contention in the suit i! that the alleged sale by Ittiyavira in favour of the appellant is a sham i.ransactiou. that therefore he did not obtain any
1 S.C.R. rights thereunder and that consequently it was not necessary to implead him in 0. S. No. 59 of 1093. They also alleged that l\fathai Ouse,>h did not obtain any rights under his auction purchase because the
sale and delivery of possession in execution of the decree in 0. S. No. 462 of 1094 were benami for lttiyavira. For this reason, it. wai contended that defendant No. 2 acquirrd.no rights to items 3, 5, 14
and 1 ~ in the plaint. The <\ppellant disputed the validity of the decree and of the execution procee- dings in 0. S. No. 497 of 1088 and contended that the decree was obtained and the execution procee·
dings taken out, fraudulently against Ramalinga lyer's heirs inasmuch as Ramalinga Iyer had assigned the hypothecation bond in favour of Sankara Rama Iyer on 3-10-1082.. The plea of the appellant thus
was that Anantha Iyer did not obtain any rights to the -hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer, and consequently, Venki- teswara Iyer obtained no ·rights under his purcha.~e
in execution of the decree in 0. S. No. 59 of 10113. The entire proceedings were characterised as fraudu- lent and not binding on Ittiyavira and the suit pro- perties. The allegation that the alleged sale in
favour of the appellant was a sham transaction was denied by them as also the other allegdtions concer- ning the purchase of items 3, 5, 14 and 18 oy Mathai Ouseph. The trial court dismissed the suit.
The High Court, however, reversed the decree of the trial court except with respl'ct to items 3, 5, 4 and 18 in the plaint. No cross-appeal or cross-objections having been filed by the respondents, the appeal before
us is confined to the remaining items provided in the plaint schedule. The first point raised by Mr. Paikedy for the appellant is that the decree in 0. S. No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit
Itt.vint Alath:ii Y.-l-1_, v arkty "'•""•l!.r, J. ln&it'a MoJIW y ork,y V arl:11 T>02 on the hypothccation bond executed by Ittiyavira in favour of l{amalinga lycr was a nullity because
the suit was barred by time. Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in substquent
litigation. If the suit wa< barred by time and yet, the coun decreed it, the court would be committing an illegality and thcrtfore the aggrieved party would be entitled to have tlie decree set aside by preferring
an appeal against it. But it i.5 well settled that a court having jurisdiction over the subject matter of the suit and over the parties tl1ereto, though bC'und to decide right may decide wrong; and that even
though it decided wrong it would not be doing some· thing which it had no jurisdiction to do. It had the jurisdiction ovu the subject-matter and it had the jurisdiction over the party and, therefore, merely
because it made an error in dr.cili;ng a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and
even though they decide wrong, the decrees rendered by tliem cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqhul Ahmed v. Onkar Parl.ap
Narain Sin11h ('), and contended that sioce the court ii bound under th~ pro,·isions of s. 3 of the Limita· tion Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction
if it fails to do so. ·All that the decision relied upon says that s. 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the
pgint of limitation is not referred to in thr pleadings. The privy council has not said that where the court fails to perform its duty, it act~ without jurisdiction. If it fails to do its duty, it merely makes an error of
law and an error of law can bt> corrected only in the manner laid down in the Civil Procedure Code. If [I) A.!.R. (1935) P.C. 85. l S.C.R. the partv aggrieved does not take appropriate steps
to have that error corrected, thr erroneous decree will hold good and will not be open to challenge on the basis of being a nullity. The next point raised by learned counsel is that the present suit was barred because it was not
instituted within three years of the decision of the Magistrate, First Class, Perumbavoor, h91ding that the appellant was in possession of the suit ·properties. It is no doubt true that .the order in question was
passed on 28-12-1111 while the suit was instituted in the District Court, Parur on 4-3-1118 and even if limitation is computed with reference to the date of the order of the High Court dismissing the revision
petition the suit will be said to have been instituted more than three years thereafter. The fact, however, is that the plaint was originally instituted by the respon- deni in the court of the Munsif. Moovattupuzha
and numbered as original suit .No. 129tj of 1114. The appellant contended that the valuation of the suit property made by the respondents was low and therefore the court appointed a Commissioner for
ascertaining their true value. The' Coinmissioner reported that the value of the suit properties was Rs. 4,602. The court thereupon passed an order on 21-2-1118 returning the plaint for presentation to the
proper court inasmuch as the sum total of the value of the reliefs claimed in the plaint was beyond it~ pecuniary limits. Shortly thereafter, the . plaint was presented by the respondents in the District Court at
.Parur. If the respondents had filed the suit in the Court of the Munsiff within three years of the date pf the final order passed in proceedings under s. 145 of the Code of Criminal Procedure but the plaint was
returned for presentation to the proper court, they would be entitled under s. 14 of the Limitation Act to the deduction of the entire period during which they were prosecuting their suit w~th due diligence
and in good faith in the co1,1rt of the Munsiff. Had fflatira lltalhf'li v. Varkey Vark~v Mudltolkar, J. 19'3 ltl#WfJ Mor.._ f.zrkl,J IGikly . MMtllttlA•, J. 504 SUPREME COURT Rt.l>ORtS [1964] VOL
the suit been barred by time whe~ it was instituted in the court of the Munsiff,_ a pka to that effect could have been taken by the appellant. The defendants do not appear to have done so. ·It, therefore, follows
that the suit must have been within time, when it was instituted in the court of the Munsiff. After the plaint was represented in the District Court at Parur, the appellant filed a written statement. In para 12
of the p_laint the respondents have stated thus : "The cause of action for this suit has arisen within the jurisdiction of this court from 15th Kanni 1113, the date of the final order in the
summary case." The only answer to this plea of the respondents which the appellant has given in the written sta_tement is to be found in para 13 of the written statement which reads thus :
"The plaintiffs have no manner of rj.ght what· soever, as alleged in para 10 of the plai:it. Even if the plaintiffs had any rights, they have become barred by limitation; and they need
not be considerr.d at this juncture. The plain- tiffs have no right to contend like this in the present suit, airer thr. lapse of a long period since the 2nd ddendant's brother took posses·
sion of the properties in execution proceedings. The plaintiffs are barred .from contending so." Just below the plaint, the respondents have also stated thus: "This suit is first filed in .\!oovattupu?.ha
Munsiff's Court as 0. S. No. 1296/1114. The defendants contended that the plaint properties arc of great value and so a Commissioner was appointed during the trial of the suit to ascer-
tain the value· of the properties. The value was 1 S.C.R. 50.5 ascertained to be Rs. 4,6021- chs. I+ and so an order was passed from the :\foovattupuzha .:-.runsiff's Court on 21-2-1118 stating that the
plaint should be returned and filed in the proper court having jurisdiction to try the case, since the same cannot be tried in the Munsiff's Court. According to that order, the plaint was
received back on a0-2-1118. The correct valuation is shown and the plaint is filed in this court to<;ether with the court-fee memos returned." There is no reference to these avcrments in the
written statement of the appellant. It would thus be clear that the appellant. has not raised a s11fficicntly clear plea of limitation by stating relevaut facts and making appropriate averments.
It i~ apparently because of this that the trial court, though it did raise a formal issue of limitation, gave no finding thereon. Nothing woul_d have been simpler for the trial court than to dismiss the suit on the ground of
limitation if the plea was seriously 1·aised before it. Had the point been pressed it would not have been required to discuss in detail the various questions of fact pertaining to the merits of the case before it
could dismis~ the suit. In the plaint, the respondents claimed that the· period of limitation for the suit commenced on 1.5-2-1 lla when the High Court dismissed the revision pctitinn
preferred by the respondents. The appellant ha~ not stated that under Art. 47 of the Limitation Act, the period of limitation is to be computed not from the date of the revisioual order but from the date of the original
order. Had he done so, we have no doubt that the respondents would at least have placed on record by amending the plaint the date on which the plaint was instituted in the Court of the Munsiff.
Thus, had the plaint been instituted in the court of the Munsiff say two months before the expiry of the limitation, the suit would have been within time lttovir• Mdth11i v. r urkt)' Varkey
M11ihelkM1 J. /:111:irQ .Wothai V11rko- Vark~• .\111./JrnUcar, J. on 4.:~·l l lS when the plaint was re-presented to the District Court, computing the period of limitation even from the date of ll1e original order. Moreover._
the appellants could well have raised the question of limitation in the High Court in support of the decree which had been passed in their favour by the trial court. Had they dune so, the High Court
would have looked into the records before it for ;atisfying itself whether the suit was within time or not. The point now raised before us is not one purely of law but a mixed question of fact and law.
:\o specific ground has ev;n been taken in the petition made by the appellant before the High Court for grant of a certificate on the ground that the suit was barred by time. In the circumstances,
we decline leave to the appellant to raise the point of limitation before us. The next contention of the learned counsel is that the suit is governed by Art. 142 of the Limitation
Act and as the rcspondenls have not established that they were in possession within 12 years thereof, their suit is barred by time. This plea of the appellant rests upon another contention .,,hich is that the
delivery of possession to the auction purchaser in 0. S. No. 59 of l09a was a sham and fraudulent transaction. The appellant claimed that he was in possession of these properties at the time of delivery
of possession and that he actually obstructed the delivery of possession to the auction·purchascr. According to him, the Amin who came tu effect delivery of possession did not remove the obstruction
and therefore what is recorded in Ex. D, the report pertaining to the delivery of possession, establishes at best the delivery of merely symbolical possession. Exhibit D shows on its face that actual p011session of
the properties was delivered by the Amin to the auction.purchaser in pursuance of the execution sale. A presumption as to regularity attaches to the records of the court and s.ich presumption cannot be
)I l S.C.R. lightly brushed aside. In addition to the presumption, however, there is the evidence of P. W. 2–Vasu Vasu Elayath-who was one of the persons who had attested the report Ex. D. He swears that the Amin
came to the property and effected delivery of possession to the auction·purchaser. As the High Court has pointed out, he is a respectable person re- siding in the nc;ighbourhood and that since nothing has
been brought out in his cross-examination to discredit him, he deserves .. to he believed. Then there is the evidence of P. W. 3, Meeralava Osakkal Rawther, who was also present at the time of delivery of possession.
Exhibit D states that the charges for beating of a drum at the time of delivery of posse<sion were paid to him (P. W. 3) in token whereof he had put his signature on •the exhibit. This witness also swears
that actual delivery of possession to the auction- purchaser was effected as stated in Ex. D. His evidence has also been accepted by the High Court. \Ve see no reason to take a different view of the
evidence. Learned counsel. however, refers us to Ex, J which i~ a petition d:ited 16-7- lOH9 filed by the appellant in the District Court, Parur in 0. S. l\o. 59 of 1093 and says that this was filed only four days
after the date of delivery of possession. His conten- tion is that this document would show that the appellant continued to be in possession of the proper- ties. What is stated in that petition however is this :
"For the reasons statcel m the accompanying affidavit it is prayed that the Court may be pleased, to decl.are my possession and rights etc. over the properties mentioned in the decree
in the above suit and to hold that the said properties are not liable to be sold for the said decree. and to allow this petition with costs." . It would thus be cleaF that he has onlv claimed his
right to the possession of the properties' and not that /ltavira .\faJhai v, rark~v v .. rkey Mudholkar, J. /l/ooir• MaJ'uri l'itrhy Vat~J he had obstructed the delivery of possession of the
properlies by the Amin to the auction purchaser. No doubt, the District .Judge has recorded an order there- on to the effect that since the appellant does not say that he was dispossessed his application is not tenable.
It seems to us that in the absence of any averments of the kind we have already indicated, the appellan• cannot derive any benefit from his application. It was contended in the High Court and it is con-
tended also before us that the appellant had sent an obstruction petition to the Amin, but he ha5 neither produced a certified copy of that petition nor examined the Amin in proof of what he has .said. In
the circumstances, agreeing with the High Court, we hold that there can be no doubt that actual delivery of possession of the suit properties \\'as effected by the Amin to the auction-purchaser
C>n 12-7-1099. No doubt, in the proceedings under s. I J,) of the Criminal Procedure Code, there is a finding to the effect that the appdlant was in possession. That, however, mean• only this, that he wa, in
possession at the date of the preliminary order made in those proceedings. In view of our finding that actual delivery of possession was effected to the auction-purchaser on 12-7-1099,
it must be said that the appellant's possession on the date of the preliminary order could only. have originated in a trespass subsequent to the delivery of possession on 12-7-1099, and
probably d.1ring the disputes by reason of which the respondents were compelled to take proceedings under s. u:; of the Criminal Proce- dure Code. The present suit cannot therefore be
regarded as one by auction-purchasers for recovery of property on the strength of an execution sale in their favour but only one for eviction of a person who obtained wrongful possession of property by
trespass after delivery of possession had been effected through court. As we have already pointed out, l S.C.R. after the application was made by the respondents under s. 145 of the Code of Criminal Procedure, the
Magistrate before whom it was made ordered attach- ment of property and placed it in the possession of the Receiver who continued to be in possession till the final decis'ion of those proceedings.
The posses- sion of the Receiver during this period would nrce- ssarily ensure for the benefit of the successful party. If, therefore, this period is tak.cn into account the respondents' suit would be well within time.
The next point urged by learned counsel is that Anantha Iyer and his brother got no rights by reason of the attachment and sale of the hypothec~· tion bond executed by Ittiyavira in fav0t1r of
Ramalinga Iyer because long before their. purchase, I<amalinga Iyer had assigned that bond to Sankara Rama Iyer. The contention of the respondtnt is that Ex. V under which the alleged assignmrnt was
made i~ a sham document executed by Ramalinga Iyer in order to screen the hypothecation bond from his creditors and to preserve the amount thereunder for his own· benefit. It is clear from the evidence
includii°t!\ that of the appellant himself that Ramalinga Iyer was deeply in debts at the time of the exe<11tion of Ex. V. After the execution of Ex. V, Ramalinga Iyer who pr:iduced that document
for r"gistration before the Sub-Registrar himself obtai11ed the docum~nt bark from him. Then~ is no evidence to show that thereafter he handed it over to Sankara Rama Iyer or that the lat· er had accep•cd
the transaction. The major part of the considera- tion reciteJ in Ex. V consisted of amounrs alleged to be due from Ramalinga Iyer to his creditors wh.ich the assignee was st1pposed to discharge. The balance
of the consideration was not paid at the time of tile execution of the said document but was said to have been adju~ted against the amounts due from Ramalin- ga Iyer to the a~~ignce Sankara Rama Iyer.
There;~· no evidence to show that any of the debts recited in lllafliro Mathai Varkey Yark~' };Judholl.:ar, J. flfatira MaJliai v. Ya1..l:1.)' Var~·1y M•diwlt.,, J. the document were actually due from Ramalinga
Iyer or that any money had been received by him from Sankara Rama Iyer. The appellant d()(."S not even say that he had. made enquiries concerning the consideration of this document.
It is fu1 thrr to be borne in mind that though the document was execut- ed in the year )(JS:/, right uptill now, neither Sankara Rama I ycr nor any person claiming under him has made any attempt to realise the amounts due under
the hypothecation bond. The High Court has pointed out thus: "ff the assignment was a genuine transaction and was intended to take effect the assignee would not have foregone the amount under the
hypmhecation bond, especially when he had to get such a lan~e amount from Ramalinga Iyer and also paid a further consideration as mentioned in Ex. V. That one circumstance, that the assignee has not made any attempt to·
realise the amount under the hypothecation bond during the 32 years that had elapsed after the assignment and before the institution of the present suit amounts almost to proof positive of the fact that the assignment was not
a genuine transaction and was only a sham documenc executrd for the purpose of screening the amount under the hypothccation bond for the benefit of Ramalinga Iyer himself.'' We agree with the observations of the High Court
and would add that this circumstance as well as the omission of the aprellant to examine any person directly connerted with the execution procecdinb'S would justifr an inference that
the transaction evidenced by Ex. V is not a genuine one and that the document itself is sham and bogus. Upon this view, we hold that the sale in execution of the decree obtained by Anantha Iyer conveyed to the auction-
purchascr all the rights of the hypothecation bond 1 S.C.R. executed by Ittiyavira in favour of Ramalinga Iyer. The next and the last point urged by learned counsel is that the appellant is not bound by the
decree in 0. S. No. 59 of 1093, because he was not made a party thereto. If in fact the assignment of the properties by lttiyavira in favour of the appellant was a genuine one, tile appellant's contention would
have to be upheld. The document on which the appellant relies is Ex. XXIX. According to the respondents, this document is sham and bogus and was executed by Ittiyavira for the purpose of scree-
ning the property for his own benefit. The trial court held that the document was a genuine one but the High Court has reversed that finding. At the outset, we have to bear in mind the fact that the
alleged sale was by a father in favour of his son aI]d that the son at the date of that transaction W.lS not shown to have had any independent means of his own from which to provide tor the consideration for
the sale. According to the cbcumeut, the consider<>.- tion was Rs. ~5,000/- which consisted of Rs. 1,500/- . said to have b< en pa id by the appellant to his father from time to time before the trans;;ction, Rs. 1,000/-
either paid or agreed to be paid by him to his mother in discharge of a debt by his father to her. and Rs. 500/- which had already been paid to his you- nger brother in dischar,i!;e of a debt which the father
owed to him. We agree with the High Court that the recit~ Is excite suspicion. There is rio proof of these payments excrpc the interested testimony of the appell~nt himself. fn the proceedings und·:·r s. I-Hi
oft he Criminal Procedure Code, the appellant had stated that he harl obtained the nccessarv hinds fur obtainin.~ Ex. XXIX from his mother; b~t in view or a recital in that document that
he had to pay ]{s 1000/- to his mother, it ·would appear that he has prevaricated. Then a((ain. the younger brother who is said to have loaned Rs iiOO/- to the appel- lant's father was only 14 years of age at the time of
/963 lttqvira 1'1atliai Varkey Varkey. ft1.udh1•lka1, J. IUaoiro Mollto! v. York.} Yark.7 Af•ttlMlkar, /, SUPREMECOURTREPORTS [l964]VOL. execution of that document. It 1s impossible to
believe tr1at a young boy like him could have betn in the position to loan Rs. iiOO/· to his father. It was urged before us by Mr. Paikedy that what the parties really meant was that the appellant was to pay the
sums of Ks. l,000/- and Rs. 500/- respectively to his mother and younger brother so as to discharge his father·s liability to pay them. If there was any substar.ce !:i this contention, it should have been
advanced before the courts below and not raisc4Jor the first time before us. Apart from that it would appear that despite the execution of the document, lttiyavira continued to be the owner of the proper-
ties comprised in it. No doubt, the appellant claims to have been in actual posse.-.sion of the properties and possibly he was, but, as has been pointed out by the High Court, his possession was no more than that
of an agent of lttiyavira. We, therefore, agree with the High Court that Ex. XXIX was a sham and bogus document and that the transaction evidenced by it is not genuine. Having thus failed on all the contentions on
merits, learned counsel has sought to urge a new point before us. The point is that the appeal before the Hil{h Court should have been heard not by a Division Bench of merely two judges, but by a
Bench of three judges, as provided ins. ll (1) of the Travancore High Court Act. 1099 (IV of 1099). Learned counsel admits that the appeal was heard not by the Travancore High Couit but by the High
Court of Travancore-Cochin which came into being after the merger of the two States of Travancore and Cochin. He admit~ that the Travancore High Court Act, I 099 was repealed by Ordinance II of
I 124 which was re-enacted by Act V of 1125; but he says that s. 25 of that Act provided that a Full Bench will hear and decide all appeals from the decrees of the District Courts in
which the amount or va:uc of the subject-mailer is in excess of 1 s.c.R. Rs. 5,000/-. This provision was also repealed before the appeal in question was even preferred. Accor- ding to him, however, the appellants were entitled to
prefer an appeal before a Tribunal which existed when the suit itself was instituted. The rights __ of parties to a suit in the matter of preferring an appeal are governed by the law as it obtained when the suit
was instituted and, therefore, according to him, as under that law in a suit of that kind an appeal lay before a Bench of three judges, it could be heard only by such a Bench and not one consisting of a
lesser number of judges. There arc two reasons why this argument can- – not be accepted. In the first place, the High Court of Travancore was itself abolished as a result of the merger and a new High Court came -into
being-the Hi!(h Court of Travancorc-Cochin. The rights of parties to prefer appeals to that High Court were governed initially by Ordinance II of 1124 and later by Act V of 1125. These provisions came into
being subsequent to the institution of the suit. There- fore, the rights of a person aggrieved by the decision of a suit instituted prior to the coming into force of Act V of 112& were only those whi_ch were conferred
by that Act. A litigant has no right to contend that a Tribunal before whom he should have taken an appeal when he instituted the suit, should not be abolished. The Legislature has full power to enact a law of
that kind and it is not contended before us that the repeal of the Travancore High Court Act was un- constitutional. It would, therefore, follow that whatever rights may have vested in the party in the
matter of filing an appeal were abrc·gaced by compe- tent legislature. New rights we1e cor.r~rrcu in place of those which were taken away and it is only the new rights which could be availed of.
After the new rights were conferred even they were modified in one respect and that was with regard to the hearing of certain kinds 0f appeals by a Full Bench. The rights ltt1wira MatM.i
v. Vark~v V11rki•y \fudholktJr, J. lttaoira MatMi v. V"'kry VarktJ Mw!Wlw, J. to h~ve the appeal heard by a Full Bench by virtue of the provisions of Act V of had never vested in any of the parties to the present
litigation. Therefore, their abrogation by a later law cannot entitle them to make a complaint. There is yet another reason why the argument of the lear- ned counsel cannot be accepted.
That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of jud- ges is merely a matter of procedure. No party has a vested right to have his appeal heard by a speci-
fied number of judges. An appeal lay to the High Court and the appeal in question was in fact heard and disposed by the High Court and, therefore, no right of the party has been infringed merely because.
it was heard by two judges and not by three judges. No doubt in certain classes of cases, as for instance, cases which involve an interpretation as to any pro- vision of the Co11stitution, the Constitution provides
that the Bench of the Supreme Court hear· ug th•~ matter must be cumposed of judges who will not be · less than five in number. But it does n"t follow from this that the legal requirements in this regard
cannot be altered by a competent body. We there- fore overrule the contention of the learned counsel and hold that the appeal was rightly heard and deci- ded by a Bench of two judges.
In the result, we affirm the decree of the High Court and dismiss the appeal with costs. Appeal dismissed.