Case: Sardar Syedna Tahersaifuddin Saheb Vs. The State Of Bombay

3. While this action was pending, the Legislature of the Province of Bombay passed the Bombay Prevention of Excommunication Act (Bombay Act XLII of 1949) prohibiting excommunication, and that came into force on 1-11-1949. 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 28-2-1934. and 28-4-1948, 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 to4. The issues in the action were then settled, and issue No. 19, which was raised with reference to the contentions, was as follows :Whether the orders of excommunication made in 1934 and/or 1948 are invalid by reason of the provisions of the Bombay Prevention of Excommunication Act of 1949?5. 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 Arts. 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 Arts. 132 and 133 of the Constitution. Hence this appeal6. Pending the appeal, the plaintiff died on 11-3-1953. and his daughter applied on 22-5-1953, to be substituted in his place. But eventually she did not press the application, and that was dismissed on 5-10-1953. In this Court by an order dated 21-11-1955, 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.

Reasoning:
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 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 appealHere, 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 existNow, the order appealed against is only a decision on one of the issue, and it does not dispose of the suit. In United Provinces v. Mst. Atiqa Begum (B). (supra), there was a decree, and the requirements of S. 205 were satisfiedApplying 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 Art. 132 and the fact that a certificate has been given does not alter the position. It is said that the certificate is also under Art. 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.