Shri Durga Prasad & ANR Vs. The
Banaras Bank Limited  INSC 381 (21 December 1962)
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1963 AIR 1322 1964 SCR (1) 475
CITATOR INFO :
R 1971 SC 658 (6) R 1972 SC1903 (14,16) R
1973 SC1252 (17)
Supreme Court, Appellate jurisdiction
of-Certificate, granted by High Court, if Competent-'Court immediately
below'--Meaning of-Constitution of India, Art. 133 (1).
The Official Liquidator of the respondent
Bank advertised for sale, the two houses belonging to the Bank. These houses
were sold to the second appellant with the sanction of the court. The second
appellant thereafter transferred the houses to the first appellant reciting in
the deed that the latter was the real owner and that the sale deed from the
Official Liquidator was obtained benami for him. The Official Liquidator moved
the High Court at Allahabad for an order declaring the sale null and void and
for an order retransferring the houses to the Bank. A 476 single judge of the
High Court held that the first appellant being at the material time a member of
the committee of inspection and he having suppressed that interest was
precluded from buying the property of the Bank and directed the first appellant
to convey the houses to the Official Liquidator of the Bank. This order was
confirmed by a Division Bench of the High Court in appeal under cl. 10 of the
Letters Patent. The High Court then certified the case under Art. 133 (1) (a)
of the Constitution ,or appeal to this Court. It was urged at the hearing of
the appeal on behalf of the Official Liquidator that the appeal was
incompetent, for the High Court had no jurisdiction to grant the certificate
under art. 133 (1) (a) of the Constitution without certifying that the appeal
involved some substantial question of law.
Held, that under Art. 133 (1) of the
Constitution the expression 'Court immediately below' has not the same connotation
as the expression 'Court subordinate to the High Court' and as the judgment of
the Single judge was affirmed in appeal, the appeal to the Supreme Court could
not be entertained with a certificate under Art. 133 (1) (a) unless it was
certified that it involves some substantial question of law.
Deoki Nandan v. -State of U. P., A. 1. R.
1959 All. 10, reversed.
Toolsay Persaud Bhuckt v. Benayek Misser
(1896) L. R. 23 I.A. 102, Probhawati Kunwar v. Panmat Lodha, (1941) 45 Cal.
W. N. 1002, referred to.
Ladli Prasad Jaiswal v. The Karnal
Disttillery Co.  Vol. I S. C. R. 270, relied on.
CIVIL APPELLATE JURTSDICTION: Civil Appeal
No. 569 of 1960.
Appeal from the judgment and decree dated
September 9, 1958, of the Allahabad High Court in Special Appeal No. 214 of
Ranganadham Chetty, A. V. Rangam, A.
Vedavalli and M. I.
Khowaja, for the appellants.
G.S. Pathak and G. C. Mathur, for the
477 1962. December 21. The judgment of the
Court was delivered by SHAH J.-The Banaras Bank Ltd-hereinafter called 'the
Bank' was directed to be wound up by order of the Allahabad High Court. A
committee of inspection was appointed under s. 178-A of the Indian Companies
Act, 1913 to act with the Official Liquidator, and one of the members of the
Committee was Durga Prasad the first appellant in this appeal. The Official
Liquidator advertised for sale two houses which formed part of the assets of
the Bank. Roshan Lal the second appellant made an offer to purchase the two
houses for Rs. 18,000/-. This offer was accepted by the Official Liquidator and
with the sanction of the Court the two houses were sold to Roshan Lal on August
2, 1941. Roshan Lal thereafter transferred the houses to Durga Prasad reciting
in the deed that the latter was "the real owner" of the houses and that
the sale deed from the Official Liquidator was obtained by him "benami'
for Durga Prasad. On coming to learn about this conveyance, the Official
Liquidator moved the High Court of Allahabad for an order that the sale be
declared null and void and that Durga Prasad be called upon to surrender the
two houses and to retransfer the same to the Bank. The High Court held that the
sale deed was obtained by Durga Prasad who was the real purchaser, that he had
suppressed his interest in the purchase, and that being a member of the
committee for inspection, qua the Bank he occupied the position of a trustee
and was on that account precluded from. buying the property of the Bank. The
High Court accordingly directed Durga Prasad to covey the houses to the
Official Liquidator of the Bank. This order was confirmed in appeal tinder cl.
10 of the Letters Patent by a Division Bench of the High Court. The High Court,
however, certified the case under Art. 33 (1) of the 478 Constitution for
appeal to this Court. The High Court observed :
"It is not in dispute that the judgment
of this Court involves directly or indirectly a claim respecting property of a
value of not less than Rs. 20,006/and, in view of the decision of this Court in
Shri Deoki Nandan v. State of Uttar Pradesh (1), the applicants are entitled as
of right to a certificate under Article 133 (1) of the Constitution without an
additional certificate that the case gives rise to a substantial question of
law. The requisite certificate will accordingly issue." At the hearing
before this Court counsel for the Official Liquidator submitted that the appeal
is incompetent, for the High Court had no jurisdiction to grant the certificate
under Art. 133 (1) (a) of the Constitution without certifying that the appeal
involved some substantial question of law. In our view this contention must
In Deoki Nandan v. State of Uttar Pradesh the
Allahabad High Court held.
"The words 'the Court immediately below'
within the meaning of cl. (1) of Art. 133 of the Constitution must be a court
other than the High Court. A single judge of a High Court is not a court
subordinate to the High Court.
An appeal against an order of an appellate
Bench of the High Court dismissing an appeal from an order of a single judge of
the Court on its original side rejecting a petition under Art. 226 of the
Constitution lies as a matter of right under Art. 133 (1) of the Constitution,
if the claim is in respect of property of a value in excess of Rs. 20,000/and
it is not (1) A.1 R. 1959 All, 15.
479 necessary that the case should give rise
to a substantial question of law." But the expression "court
immediately below' in Art. 133 (1) has not the same connotation as the
expression 'court subordinate to the High Court.' In Toolsey Persaud Bhuckt v. Benayek
Misser (1), the Privy Council appears to have expressed the view that a single
judge of a High Court trying an original proceeding was a court immediately
below the High Court hearing an appeal under the Letters Patent from his
judgment and therefore an appeal under S. 696 of the Code of Civil Procedure
Act XIV of 1882 (of which the terms were in substance identical with the terms
of Art. 133 (1)) could be certified for appeal to the Privy Council only if a
substantial question Of law was involved. The judicial Committee observed
"Their Lordships think that no question of law, either as to construction
of documents or any other point, arises on the judgment of the High Court, and
that there are concurrent findings of the two Courts below on the oral and documentary,
evidence submitted to them.
That being SO, the present appeal cannot be
In Probhawati Kunwar v. Panmal Lodha (2), the
High Court of Calcutta held that an appeal to the Privy Council cannot be
certified if the High Court confirms the judgment of a single judge trying an
original proceeding, unless it involves a substantial question of law. In a
recent case Ladli Prasad Jaisuul v. The Karnal Distillery Company Ltd.
(3), this Court held that a single Judge
hearing a second appeal under S. 100 of the Code of Civil Procedure, 1908 is
for purposes of Art. 133 (1) the Court immediately below a Division Bench of
the High Court hearing an appeal against his judgment under the Letters Patent.
It was observed in that case that (1) (1896) L.R. 28 I.A. 102.
(2) (1941) 45 Cal, W..N. 1002.
(3)  Vol, I s.C.R. 270.
480 the expression 'Court immediately below'
used in Art. 133 (1) (a) does not mean Court subordinate to the High Court.
"A Court subordinate to the High Court
is a Court subject to the superintendence of the High Court, whereas a Court
immediately below is the Court from whose decision the appeal has been
filed." In that case the Attorney-General appearing for the respondents
conceded that a single judge of a High Court trying a suit or proceeding as a
court of original jurisdiction was a court immediately below the High Court
hearing an appeal from his decision-and it was observed in the judgment of this
Court that the concession was properly made.
In the appeal before us, the judgment of the
High Court affirms the judgment of the single judge and the High Court has not
certified that the decision appealed from involves any substantial question of
law. The appeal cannot accordingly be entertained. Counsel for the appellant
requested that in any event special leave to appeal under Art. 136 of the
Constitution be granted. But we are of the view, having regard to all the circumstances
that this is not a fit case for granting leave to appeal.
The appeals therefore dismissed. There will
be no order as to costs.