Appeal No 99 of 1954
Appeal from the judgment and order dated the 20th August 1952 of the Bombay High Court in Appeal No 43 of 1952 arising out of Original Suit No 1262 of 1949
N C Chatterjee J B Dadachanji and Rameshwar Nath for the appellant
Porus A Mehta and R H Dhebar for the respondent
November 27
The following Judgment of the Court was delivered by VENKATARAMA AIYAR J
On February 281934 the Appellant who is the religious head of the Dawoodi Bohra Community passed an order excommunicating one Tyebbhai Moosaji Koicha
On July 17 1920 the appellant had excommunicated two persons Tahirbhai and Hasan Ali and the validity of the order was questioned in a suit instituted in the Court of the Subordinate Judge Barhampur
The litigation went up to the Privy Council which held that the appellant as the religious head had the power to excommunicate a member of the community but that that power could only be exercised after observing the requisite 1009 formalities and as in that case that had not been done the order of excommunication was invalid
Vide Hasan Ali vs Mansoorali 1
Apprehending that the order dated February 28 1934 was open to challenge under the decision in Hasan Ali vs Mansoorali supra on the ground that it had not complied with the requisite formalities the appellant started fresh proceedings and on April 28 1948 passed another order of excommunication
Thereupon Tyebbhai Moosaji filed the present suit for a declaration that both the orders of excommunication dated February 28 1934 and April 28 1948 were invalid and for other consequential reliefs
While this action was pending the Legislature of the Province of Bombay passed the Bombay Prevention of Excommunication Act Bombay XLII of 1949 prohibiting excommunication and that came into force on November 1 1949
The plaintiff contended that the effect of this legislation was to render the orders of excommunication illegal
The answer of the appellant to this contention was firstly that the Act had no retrospective operation and that in consequence the orders passed on February 28 1934 and April 28 1948 were valid and remained unaffected by it and secondly that the Act was itself unconstitutional because the subject matter of the impugned legislation was not covered by any of the entries in List 2 or 3 of Seventh Schedule to the Government of India Act 1935 and the Legislature of the Province of Bombay had no competence to enact the law
After the coming into force of the Constitution the contention was also raised that the right of the defendant to excommunicate members of the com munity was protected by articles 25 and 26 of the Constitution and that the impugned Act was void as infringing the same
The issues in the action were then settled and issue No 19 which was raised with reference to the above contentions was as follows  Whether the orders of excommunication made in 1934 andor 1948 are invalid by reason of the 1 AIR 1948 PC 66
1010 provisions of the Bombay Prevention of Excommunication Act of 1949 This was tried as a preliminary issue and as it raised the question of the vires of a statute the State of Bombay was impleaded as the second defendant in the suit
Shah Jwho tried this issue held that the impugned Act was retrospective in its operation that it was within the competence of the Provincial Legislature and further that it did not offend articles 25 and 26 of the Constitution
Against this finding the present appellant preferred an appeal to a Bench of the Bombay High Court and that was heard by Chagla C J and Bhagwati J who held that under the Act excommunication meant the condition of being expelled that it was a continuous state during which the person excommunicated was deprived of his rights and privileges and that therefore the Act would operate to protect those rights from the date it came into operation
They further held that the Act was within the competence of the Legislature and they also repelled the contention that it infringed the rights guaranteed under articles 25 and 26 of the Constitution
In the result they concurred in the decision of Shah J and dismissed the appeal but granted a certificate to appeal to this Court under articles 132 and 133 of the Constitution
Hence this appeal
Pending the appeal the plaintiff died on March 11 1953 and his daughter applied on May 22 1953 to be substituted in his place
But eventually she did not press the application and that was dismissed on October 5 1953
In this Court by an order dated November 21 1955 the cause title was amended by deleting the name of the plaintiff
Thus the only parties who are now before the Court are the defendant and the State of Bombay
The question is whether in the events which have happened the appeal can proceed
We are of opinion that it cannot
It should be remembered in this connection that no decree had been passed in the suit
Only a finding has been given on a preliminary point and it is that finding that has been the subject of 1011 appeal to the High Court of Bombay and thereafter to this Court
There are other issues still to be tried and the action is thus undetermined
Now the claim with which the plaintiff came to Court was that he was wrongly excommunicated and that was an action personal to him
On the principle actio personalis moritur cum persona when he died the suit should abate
As a matter of fact his legal representative applied to be brought on record but the application was not pressed
The result is that the suit has abated
This would ordinarily entail the dismissal of this appeal
Mr N C Chatterjee for the appellant argues that as the State of Bombay had been impleaded as a party and that as the decision on the question of the vires of the Act had been given in its presence the appellant is entitled to continue the appeal against the State without reference to the plaintiff and seek the decision of this Court on the validity of the Act  and relies on the decision of the Federal Court in The United Provinces vs Mst
Atiqa Begum and others 1
There a suit was filed by a landlord for recovery of rent
While it was pending in appeal an Act was passed by the Legislature of the United Provinces validating certain Government notifications requiring the landlords to give to the tenants remission of rent
The landlord contended that the Act was ultra vires and a Full Bench of the Allahabad High Court for whose opinion the question was referred agreed with this contention
Thereafter the Government of the United Provinces got itself impleaded as a party to the appeal of the landlord and a decision having been given therein in accordance with the opinion of the Full Bench it preferred an appeal to the Federal Court on a certificate granted under section 205 of the Government of India Act 1935 and contended that the impugned Act was valid
The judgment debtor himself did not file any appeal
The question was whether the Government was entitled to file the appeal when the party had not chosen to contest the decree
It was held by the Federal Court that the scope of 1 1012 section 205 of the Government of India Act was wider than that of section 96 of the Civil Procedure Code and that the Government was entitled to file the appeal for getting a decision on the validity of the Act notwithstanding that it had no interest in the claim in the suit
This ruling has in our opinion no application to the facts of the present case
Here the action itself has abated and there can be no question of an appeal in relation thereto as an appeal is only a continuation of the suit and there can be no question of continuing what does not exist
But apart from this there is another formidable obstacle in the way of the appellant
Under article 132 an appeal lies to this Court only against judgments decrees or final orders
That was also the position under section 205 of the Government of India Act
Now the order appealed against is only a decision on one of the issues and it does not dispose of the suit
In The United Provinces vs Mst
Atiqa Begum and others supra there was a decree and the requirements of section 205 were satisfied
Here there is only a finding on a preliminary issue and there is no decree or final order
The Explanation to article 132 provides that For the purposes of this Article the expression final order  includes an order deciding an issue which if decided in favour of the appellant would be sufficient for the final disposal of the case
 Applying this test even if we accept the contention of the appellant that the impugned Act is bad that would not finally dispose of the suit as there are other issues which have to be tried
We are clearly of opinion that the appeal is not competent under article 132 and the fact that a certificate has been given does not alter the position
It is said that the certificate is also under article 133 but under that article also an appeal lies Only against judgments decrees or final orders and no certificate could be granted in respect of an interlocutory finding
The result is that this appeal must be dismissed as not maintainable
We should add by way of abundant caution that as we express no opinion on the 1013 correctness of the decision under appeal this order will not preclude the appellant from claiming such rights as he may have in appropriate proceedings which he may take
In the circumstances there will be no order as to costs
Appeal dismissed


Summary:
The appellant as the religious head of his community ex communicated T who thereupon filed a suit for a declaration that the order of excommunication was invalid
When the suit was pending the Bombay Prevention of Excommunication Act 1949 was passed and one of issues raised in the suit was whether the order of excommunication was invalid by reason of the provisions of the Act
This issue was tried as a preliminary issue and 1 1948 LR 75 I A 30
128 1008 as it raised the question of the vires of the Act the State of Bombay was impleaded as the second defendant in the suit
The Bombay High Court decided the issue against the appellant but granted a certificate to appeal to the Supreme Court under articles 132 and 133 Of the Constitution of India
Pending the appeal the plaintiff died and the action which was personal to him consequently abated
It was contended for the appellant that as the State of Bombay had been impleaded as a party and that as the decision on the question of the vires of the Act had been given in its presence the appellant was entitled to continue the appeal against the State without reference to the plaintiff and seek the decision of the Court on the validity of the Act  Held that the appeal must be dismissed as not maintainable because 1 the appeal was only a continuation of the suit which in the events had abated and 2 the certificate under articles 132 and I33 of the Constitution was incompetent as it could not be granted in respect of an interlocutory finding
The United Provinces vs Mst
Atiqa Begum and Others  distinguished