Ganpat Rai Hiralal & ANR Vs.
Aggarwal Chamber of Commerce Ltd.  INSC 48 (24 October 1952)
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)
Pepsu Ordinance (X of 2005), ss.
52,116-Patiala States Judicature 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.
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 notwithstanding 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:
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
(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
 A.C. 369 referred to.
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
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
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
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
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 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,
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
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 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 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
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)  A.C. 369.
758 the appeals are not competent is, in our
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
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