Case ID: 549

Judgment:
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 28	1934	 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 and/or 1948 are invalid by reason of the (1) A.I.R. 1948 P.C. 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 J.who 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) L.R. 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.