In the matter of maintainability of appeal in the Supreme Court of India
Mohan Lal Agarwala for the petitioner
G C Mathur and C P Lal for the respondent No 1 1960
September 14
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
Narain Das filed a civil writ petition under article 226 of the Constitution in the High Court of Judicature at Allahabad
He subsequently moved an application under section 476 of the Code of Criminal Procedure hereinafter called the Code for making a complaint under section 193 Indian Penal Code against Phanish Tripathi alleging that a certain statement in an affidavit filed by the latter was false
The learned Judge who heard this application holding that the appellant had not succeeded in showing that any portion of the affidavit of Tripathi filed on May 14 1959 was false dismissed the same
It is against this order of the learned Judge of the High Court that Narain Das has filed this memorandum of appeal under section 476B of the Code
The Registry has submitted the memorandum of appeal with a report for determining the question whether the appeal is competent in this Court
Section 476 of the Code is to be found in Ch
XXXV which is headed Proceedings in case of certain Offences Affecting the Administration of Justice 
Section 476 empowers any Civil Revenue or Criminal Court when it is of the opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 1951 b or c which appears to have been committed in or in relation to a proceeding before it to file a complaint after such inquiry as it thinks necessary before a Magistrate of Class having jurisdiction
It is clear therefore that where an offence referred to in section 1951 b or c is committed in or in relation to a proceeding in a Civil Court an inquiry under section 476 and
the action taken 678 on that inquiry by the Civil Court are in relation to that proceeding itself
Any person aggrieved by an order of a Court under section 476
of the Code may appeal in view of section 476B to the Court to which the former Court is subordinate within the meaning of section 1953 which provides that for the purposes of the section a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate
The decrees of a single Judge of the High Court exercising civil jurisdiction are ordinarily appealable to the High Court under el
10 of the Letters Patent of the Allahabad High Court read with el 13 of the United Provinces High Courts Amalgamation Order 1948
It is true that the decision of a single Judge of the High Court is as much a decision of the High Court as the decision of the appellate Bench hearing appeals against his decrees
But the Court constituted by the single Judge is a Court subordinate to the appellate Bench of the High Court in view of the artificial judicial subordination created by the provisions of section 1953 to the effect   a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appeal
able decrees 
In the case of a Civil Court which passes appealable decrees that Court is deemed to be subordinate to the Court to which appeals ordinarily lie from its decrees
In  the case of a Civil Court from whose decrees no appeal ordinarily lies that Court is deemed subordinate to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction the former Court is situate even though normally such a Court will not be subordinate to the principal Court having ordinary original civil jurisdiction within whose local limits it is situate
It was urged by the learned Advocate for Narain Das that the order of the learned single Judge under 679 s476 did not amount to a decree and that therefore the provisions of section 1953 were not applicable
It is not necessary for us to express an opinion on the question whether the order of the learned single Judge under section 476 is appealable under cl 10 of the Letters Patent or not
A right of appeal against that order is given by the provisions of section 476 B
The forum of appeal is also determined by the provisions of section 476B read with section 1953 and the only relevant consideration to determine the proper forum for an appeal against such an order of the single Judge is as to which Court the appeals against appealable decrees of the single Judge ordinarily lie
Such appeals lie to the High Court under cl 10 of the Letters Patent of the Allahabad High Court and therefore this appeal lies to  the High Court
Learned counsel for the appellant relied on the decision of this Court in M section Sheriff vs The State of Madras 1 in support of his contention that an appeal under section 476B lay to this Court from the decision of a single Judge of a High Court refusing to file a complaint under section 476 of the Code
That case is distinguishable as the question considered in that case was whether an appeal lay to this Court under section 476B of the Code from an order of a Division Bench of a High Court
It did not deal with the question whether an appeal lay to this Court under section 476B of the Code from an order of a single Judge of the High Court
No appeal lies to the High Court against the decision of a Division Bench of the High Court and therefore an appeal under section 476B from an order of the Division Bench of the High Court must lie to this Court
The fact that an appeal lies to this Court from the order of a single Judge of the High Court where the High Court certifies under article 132 of the Constitution that the case involves a substantial question of law as to the interpretation of the Constitution is of no assistance to the appellant s contention that this appeal is competent in this Court
It cannot be said that an appeal ordinarily lies to this Court from the 1 1954 SCR 1144
87 680 judgment of a single Judge of a High Court because such an appeal lies with a certificate granted under article 132
We therefore hold that the present appeal does not lie to this Court and that it lies to the High Court of Judicature at Allahabad
We therefore direct that the memorandum of appeal be returned for presentation
to the proper Court
Appeal incompetent


Summary:
The appellants in execution of a decree passed in their favour for possession over a house obtained possession thereof on July 22 1951
The order for delivery of possession was made without notice to and in the absence of the respondent
The respondent made an application in the Executing Court under sections 47 144 and 151 Code of Civil Procedure for setting aside the ex parte order of delivery and for redelivery of possession of the house to him or in the alternative for an order to the appellants for giving facilities for removing the moveables from the house
The Executing Court upheld the contention of the appellant that 76 592 the respondent s application was not maintainable
On appeal by the respondent the High Court held that the Executing Court had no jurisdiction to order the eviction of the respondent because of the provisions of the Mysore House Rent and Accommodation Control Order 1948 which was in operation on the date of eviction and under sections 9 and 16 of which certain restrictions were placed on the eviction of tenants
On appeal to this Court by special leave the appellants contended inter alia as they did in the High Court also  that the Mysore House Rent Control Order of 1948 was repugnant to the provisions of the IV of 1882 which became applicable in the State of Mysore by Part B States Laws Act 1951 Act III of 1951 which came into force on April 1 1951  and therefore the House Control Order could not operate on the rights of the parties on the day when the Executing Court made the order for delivery of possession to the appellants i e July 9 1951 or when delivery was actually given ie on July 22 1951
Held that the came into force only when it was extended by notification dated September 12 1951 under section 3 of that Act ie from October 1 1951 and therefore the Mysore House Rent and Accommodation Control Order 1948 was not repealed as from April 1 1951 when the Part B States Laws Act 1951 came into force and was in force when the possession was delivered
It was then an existing law which was saved by article 372 of the Constitution and remained unaffected by article 254 and the question of repugnancy to the Act IV of 1882 did not arise in this case
Ms Tilakram Rambaksh vs Bank of Patiala AIR 1959 Punj
440 considered
Section 47 of the Code of Civil Procedure was applicable to the proceeding out of which this appeal has arisen because the question whether the decree was completely satisfied and therefore the court became functus officio was a matter relating to execution satisfaction and discharge of the decree
Ramanna vs Nallaparaju A I R and J Marret vs Mohammad Shirazi and Sons AIR 1930 P C 86 considered
Where the court was not aware of the statutory restriction by which the execution of a decree was prohibited and passed an ejectment decree against a tenant the Executing Court could not execute the decree and any possession given under an ex parte order passed in execution of such a decree could be set aside under section 151 of the Code of Civil Procedure
KMuhammad Sikri Sahib vs Madhava Kurup AIR 1949 Mad 809 considered
1 The contentions of the appellant based on the ground of res judicata and estoppel were without any force
Sections 91 and 16 of the House Rent Control Order placed restrictions on 593 the power of the Court to execute the decree and ignoring them was not merely an error in the exercise of jurisdiction