Special charter provision prevails over general civil procedure rule in Kerala High Court appeals involving divided opinions.

Section 23 of the Travancore-Cochin High Court Act, 1125 survives the Kerala High Court Act, 1958 because Section 9 repeals only provisions covered by the Kerala Act and no corresponding provision displaces Section 23. The Code of Civil Procedure, 1908 saves special or local laws under Section 4(1), and Section 98(2) is only a general rule for appeals heard by two or more Judges. Section 23 is a special charter provision governing the effect of disagreement between two Judges of the Kerala High Court, so it prevails over Section 98(2). The earlier contrary view was overruled.

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Issues: Whether Section 23 of the Travancore-Cochin High Court Act, 1125 remains in force despite Section 9 of the Kerala High Court Act, 1958, and whether it operates as a special provision overriding Section 98(2) of the Code of Civil Procedure, 1908 in appeals before the Kerala High Court.

Analysis: Section 9 of the Kerala High Court Act repeals only those provisions of the Travancore-Cochin High Court Act that relate to matters provided for in the Kerala Act, and no corresponding provision was found to displace Section 23. Section 4(1) of the Code of Civil Procedure saves special or local laws unless there is a specific provision to the contrary in the Code itself. Section 98(2) is a general provision governing appeals heard by two or more Judges, whereas Section 23 is a special charter provision regulating the consequence of disagreement between two Judges of the Kerala High Court. The judgment held that the High Court Act is the special law for the High Court concerned and therefore prevails over the general procedural rule in Section 98(2); the contrary view in the earlier decision was overruled.

Conclusion: Section 23 of the Travancore-Cochin High Court Act survives and applies to the Kerala High Court, and it prevails over Section 98(2) of the Code of Civil Procedure, 1908.

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