http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

PETITIONER:

GANPAT RAI HIRALAL AND ANOTHER

Vs.

RESPONDENT:

AGGARWAL CHAMBER OF COMMERCE LTD.MURARI LAL HARI RAMV.MARWAR

DATE OF JUDGMENT:

24/10/1952

BENCH:

AIYAR, N. CHANDRASEKHARA

BENCH:

AIYAR, N. CHANDRASEKHARA

MAHAJAN, MEHR CHAND

BHAGWATI, NATWARLAL H.

CITATION:

1952 AIR 409 1953 SCR 752

CITATOR INFO :

E 1957 SC 540 (21)

R 1963 SC 221 (8)

ACT:

Pepsu Ordinance (X of 2005), ss. 52,116-Patiala States Judi-

cature Farman, 1999--Appeal from order of single Judge-

Certificate of fitness-When necessary-Order made before

Ordinance came into force-Petition for amendment thereafter-

Appeal from order dismissing petition-Necessity of

certificate-Right of appeal--Vested right-Effect of change

of law.

HEADNOTE:

Section 116 of the Pepsu Ordinance X of 2005 (1948-1949)

is a transitory regulation providing for a change over of

proceedings 'from one set of courts in the covenanting State

to others of like status in the Union, and for their

continuance etc. in the latter courts. It does not mean

that the proceedings must be treated as having freshly

commenced. What is contemplated in the latter part of the

section is a notional commencement, and the section means

that all rights which arose or are likely to arise in future

shall remain intact not with standing the new set Lip and

that they would be dealt with by the Union courts in place

of the courts of the covenanting State. There is nothing in

the section to justify the view that any taking away of a

vested right of appeal retrospectively was intended.

Under the Patiala States Judicature Farman of 1999 a

certificate was necessary for an appeal to a Division Bench

from an order of a single Judge of the Patiala High Court

only in respect of judgments and orders made in the exercise

of civil appellate jurisdiction. Under the Pepsu Ordinance

X of 2005 (1948-49) a certificate was necessary in all

cases. In Appeal No. 152 an application made on 2nd

February, 1950, for amendment of an order made by a

Liquidation Judge in 1946 was dismissed and an appeal from

the order of dismissal to a Division Bench was dismissed on

1st May, 1950, for want of a certificate. In appeals Nos.

167 and 167A, the payment orders were made on the 18th

January, 1949, and appeals from those orders were dismissed

on 3rd March, 1949, for want of a certificate:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5

Held, (i) that as a petition for amendment was not a

continuation of the earlier proceedings but was in the

nature of an

753

independent proceeding though connected with the order

sought to be amended, it was governed by the law prevailing

on its date, viz., the Pepsu Ordinance of 2005 under which a

certificate was, necessary, and in Appeal No. 152 the

dismissal of the appeal to the Division Bench for want of a

certificate was right;

(ii)that with regard to Appeals Nos. 167 and 167-A, as the

law in force on the relevant dates was the Patiala States

Judicature Farman of 1999 the appellants had a right to

appeal from the payment order without a certificate; this

vested right could not be taken away by a subsequent change

in the law unless the later enactment expressly or by

necessary implication was retrospective in operation and

deprived them of such a right, that there was nothing in s.

116 of the Ordinance to show that it was intended to have

retrospective effect and the order of the High Court

dismissing the appeals as incompetent was, therefore,

erroneous.

Colonial Sugar Refining Company v. Irving [1905] A.C. 369

referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 152, 167

and 167-A of 1951. Appeal from the Judgments dated April

25, and May 1, 1950, of the High Court of Judicature for

Patiala and East Punjab States Union at Patiala (Teja Singh

C. J. and Chopra J.) in T. P. A. R. I. A. O. No. 34 of 1950

and Civil Appeals Nos. 493/494 of Samwat 2005.

Rang Behari Lal (Ram Nivas Sanghi, with him) for the

appellants in Civil Appeals Nos. 167 and 167-A.

Udai Bhan Chaudhuri for the appellant in Civil Appeal No.

152.

Lachhman Das Kaushal for the respondent in Civil Appeals

Nos. 167 and 167-A.

Ram Nivas Sanghi for the respondent in Civil Appeal No.

152.

1952. October 24. The Judgment of the Court was

delivered by

CHANDRASEKHARA AIYAR J.-These appeals are connected and

raise a common question of law. They come before us on

special leave granted by the Pepsu High Court at Patiala

under sub-clause (e) of clause (1) of article 133 of the

Constitution,

754

The facts in Civil Appeal No. 152 of 1951 are different from

those in the other two appeals, and the consequences are

different also.

The proceedings arise out of the liquidation of two

companies called the Marwari Chamber of Commerce Ltd., (in

Civil Appeal No. 152 of 1951) and the Aggarwal Chamber of

Commerce Ltd., (in the other two appeals). The Official

Liquidator settled the list of contributories, and after

various steps taken before the Liquidation Judge of the High

Court by way of objection on grounds of law as well as on

merits, there were payment orders on 4th June, 1946, in

Civil Appeal No. 152 of 1951 and on 18th January, 1949, in

the latter two appeals.

The correctness and the validity of the payment order in

Civil Appeal No. 152 of 1951 was challenged in appeals taken

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5

to the High Court by the Official Liquidator and the

contributory. The order of the Liquidation Judge was

modified in favour of the Liquidator, and as against a sum

of Rs. 4,762-13-3 ordered to be paid, there was an order for

the payment of Rs. 24,005-7-3. On further appeal by the

contributory to the Judicial Committee, it was held that the

appeal to the Division Bench was barred by time, and

consequently the judgment of the Bench was set aside, and

that of the Liquidation Judge restored. This was on 6th

December, 1949.

In the other two appeals, an application for removal of the

name of the contributory was granted by the Liquidation

Judge, but on appeal a Division Bench of the High Court

reversed this order. On further appeal taken by the

company, the Judicial Committee, Patiala, remanded the case

for retrial, and the Liquidation Judge made an order for

payment of Rs. 8,191-0-9 on 18th January, 1949, as

aforesaid.

On 2nd February, 1950, the firm Murari Lal-Hari Ram,

appellant in Civil Appeal No. 152 of 1951, filed an

application under section 152, Civil Procedure Code, for

amendment of the order of the Liquidation judge, Kartar

Singh J., alleging that there was a

756

clerical or arithmetical error arising from an accidental

slip or omission in that a sum of Rs. 24,005-7-3 was taken

as due by the firm instead of the correct figure of Rs.

21,805-7-3. This application was dismissed by the learned

Judge on 16th March, 1950. The firm applied to him for a

certificate for leave to appeal, but this again was

dismissed. An appeal was preferred from the order

dismissing the amendment petition, but it was thrown out on

the ground of want of a certificate from the Single Judge.

This order is dated 1st May, 1950, and is couched in these,

terms " We have recently held in Ganpat Rai Hira Lal v.

Aggarwal Chamber of Commerce, Ltd., L.P.A. Nos. 493 and 494

of Samvat 2005 (Pepsu) that no appeal lies from an order of

a Single Bench to a Division Bench without a certificate by

the Single Judge that the case is a fit one for further

appeal. In this case it is admitted that the appellants

made an application for a certificate to the Single Bench,

from whose decision he is appealing, but the same was

refused. The appeal is. therefore not competent and is

dismissed in limine."

The reference in the order to the case of Ganpat Rai Hira

Lal v. Aggarwal Chamber of Commerce Ltd., L.P. A. Nos. 493

and 494 of Samvat 2005 (Pepsu) is to the order made by the

High Court in the connected matter which has given rise to

the two Appeals Nos. 167 and 167-A of 1951. There, an

appeal was lodged from the payment order of the Liquidation

Judge, but it was dismissed on the same ground, namely, want

of a certificate from the Single Judge.

In Civil Appeal No. 152 of 1951, the argument for the

appellant is that no certificate front the Single Judge is

necessary, as the matter is governed not by Ordinance X of

2005 of the Patiala State but by the Patiala States

Judicature Farman Shahi, 1999 Bikarmi, under which no

certificate is necessary. It is true that under section 44

of the earlier Farman a certificate that the case is a fit

one for appeal is required only if the judgment, decree, or

order sought to be appealed is wade in the exercise of civil

98

756

appellate jurisdiction. It is, however, clear that we are

not governed by this provision. The amendment application

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5

was made on 2nd February, 1950, as stated already. No

appeal is provided under the Civil Procedure Code from an

order amending or refusing to amend a judgment, decree or

order, though an appeal would lie from the amended decree or

order. There is no warrant for the view that the amendment

petition is a continuation of the suit or proceedings

therein. It is in the nature of an independent proceeding,

though connected with the order of which amendment is

sought. Such a proceeding is governed by the law prevailing

on its date, which admittedly is Pepsu. Ordinance X of

2005, and which provides in section 52 for a certificate.

The section is in the following terms:

" Subject to any other provision of law, an appeal shall

lie to the High Court from a judgment, decree or order of

one Judge of the High Court and shall be heard by a Bench

consisting of two Judges of the High Court: Provided that no

such appeal shall lie to the High Court unless the Judge who

decides the case or in his absence the Chief Justice

certifies that the case is a fit one for appeal...."

So far as the appellant firm is concerned, there is no

question of any right of appeal vested in it which is sought

to be taken away by giving retrospective effect to the

Ordinance which came into force in August, 1948. The order

of the High Court holding that no appeal lies from an order

of a single Judge without a certificate by him that the case

is a fit one for appeal, is, in our opinion, right.

In the other two Appeals Nos. 167 and 167 A, of 1951,

different considerations come into play. The payment order

of the Liquidation Judge was on 18th January, 1949, and the

appeal was preferred on 19th February, 1949. In the

meantime, as there was some doubt on the question, the

appellants took the precaution of applying to the Judge for

a certificate, but this was dismissed on 3rd March, 1949.

On the relevant dates, the Patiala States Judicature Farman,

1999, was in force, and the appellants hood a, right of

757

appeal from the payment order without a certificates They

could not be deprived of this right by a subsequent change

in the law, unless the later enactment provides expressly or

by necessary implication for retrospective effect being

given. The learned Judges of the High Court conceded this

in their order, but they thought 'that section 116 of

Ordinance X of 2005 (1948-49) contained an express provision

to the contrary. The section is in these terms:

Notwithstanding anything contained in this Ordinance, all

suits, appeals, revisions, applications, reviews, executions

and other proceedings, or any of them, whether civil or

criminal, pending in the Courts and before judicial

authorities in any Covenanting State shall be continued and

concluded respectively in Courts or before judicial

authorities of the like status in the Union ; and the Courts

or authorities in the Union shall have the same jurisdiction

in respect, of all such suits, appeals, revisions, reviews,

executions, applications and other proceedings, or any of

them, as if the same had been duly commenced and continued

in such Courts or before such authorities."

It is fairly obvious that this is a transitory regula-

tion, providing for a change over of proceedings from one

set of Courts in the Covenanting State to others of like

status in the Union and for their continuance etc. in the

latter Courts. It does not say that the proceedings must be

treated as having freshly commenced. What is contemplated

in the latter part of the section is a notional

commencement, if such a term could be used. The section

obviously means that all rights which arose or are likely to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5

arise in the future shall remain intact notwithstanding the

new set-up, and that they would be dealt with by the Union

Courts in place of the Courts of the Covenanting State.

There is nothing in the section to justify the view that any

taking away of a vested right of appeal retrospectively was

intended. The decision in Colonial Sugar Refining Co. v.

Irving(1) clearly applies to the facts, and the order of the

High Court that

(1) [1905] A.C. 369.

758

the appeals are not competent is, in our opinion, erroneous.

The result is that Appeal No. 152 of 1951 is dismissed

with costs throughout, while Appeals Nos. 167 and 167A of

1951 are allowed with costs throughout.

Appeal No. 125 dismissed.

Appeals Nos. 167 and 167A allowed.

Agents for the appellants in Appeals Nos. 167 and 167A:

Mohan Behari Lal.

Agent for the appellant in Appeal No. 152: Kundan Lal Mehta.

Agent for respondents in Appeals Nos. 167 and 167A: Naunit

Lal.

Agent for respondent in Appeal No. 152: Mohan Behari Lal.