Judgment Case ID: 98

Judgment:
l Appeals Nos. 152	 167 and 167 A of 1951. Appeal from the Judgments dated April 25	 and May 1	 1950	 of the High Court of Judicature for Patiala and East Punjab States Union at Patiala (Teja Singh C. J. and Chopra J.) in T. P. A. R. I. A. O. No. 34 of 1950 and Civil Appeals Nos. 493/494 of Samwat 2005. Rang Behari Lal (Ram Nivas Sanghi	 with him) for the appellants in Civil Appeals Nos. 167 and 167 A. Udai Bhan Chaudhuri for the appellant in Civil Appeal No. 152. Lachhman Das Kaushal for the respondent in Civil Appeals Nos. 167 and 167 A. Ram Nivas Sanghi for the respondent in Civil Appeal No. 152. October 24. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J. These appeals are connected and raise a common question of law. They come before us on special leave granted by the Pepsu High Court at Patiala under sub clause (e) of clause (1) of article 133 of the Constitution	 754 The facts in Civil Appeal No. 152 of 1951 are different from those in the other two appeals	 and the consequences are different also. The proceedings arise out of the liquidation of two companies called the Marwari Chamber of Commerce Ltd.	 (in Civil Appeal No. 152 of 1951) and the Aggarwal Chamber of Commerce Ltd.	 (in the other two appeals). The Official Liquidator settled the list of contributories	 and after various steps taken before the Liquidation Judge of the High Court by way of objection on grounds of law as well as on merits	 there were payment orders on 4th June	 1946	 in Civil Appeal No. 152 of 1951 and on 18th January	 1949	 in the latter two appeals. The correctness and the validity of the payment order in Civil Appeal No. 152 of 1951 was challenged in appeals taken to the High Court by the Official Liquidator and the contributory. The order of the Liquidation Judge was modified in favour of the Liquidator	 and as against a sum of Rs. 4	762 13 3 ordered to be paid	 there was an order for the payment of Rs. 24	005 7 3. On further appeal by the contributory to the Judicial Committee	 it was held that the appeal to the Division Bench was barred by time	 and consequently the judgment of the Bench was set aside	 and that of the Liquidation Judge restored. This was on 6th December	 1949. In the other two appeals	 an application for removal of the name of the contributory was granted by the Liquidation Judge	 but on appeal a Division Bench of the High Court reversed this order. On further appeal taken by the company	 the Judicial Committee	 Patiala	 remanded the case for retrial	 and the Liquidation Judge made an order for payment of Rs. 8	191 0 9 on 18th January	 1949	 as aforesaid. On 2nd February	 1950	 the firm Murari Lal Hari Ram	 appellant in Civil Appeal No. 152 of 1951	 filed an application under section 152	 Civil Procedure Code	 for amendment of the order of the Liquidation judge	 Kartar Singh J.	 alleging that there was a 756 clerical or arithmetical error arising from an accidental slip or omission in that a sum of Rs. 24	005 7 3 was taken as due by the firm instead of the correct figure of Rs. 21	805 7 3. This application was dismissed by the learned Judge on 16th March	 1950. The firm applied to him for a certificate for leave to appeal	 but this again was dismissed. An appeal was preferred from the order dismissing the amendment petition	 but it was thrown out on the ground of want of a certificate from the Single Judge. This order is dated 1st May	 1950	 and is couched in these	 terms " We have recently held in Ganpat Rai Hira Lal vs Aggarwal Chamber of Commerce	 Ltd.	 L.P.A. Nos. 493 and 494 of Samvat 2005 (Pepsu) that no appeal lies from an order of a Single Bench to a Division Bench without a certificate by the Single Judge that the case is a fit one for further appeal. In this case it is admitted that the appellants made an application for a certificate to the Single Bench	 from whose decision he is appealing	 but the same was refused. The appeal is. therefore not competent and is dismissed in limine. " The reference in the order to the case of Ganpat Rai Hira Lal vs Aggarwal Chamber of Commerce Ltd.	 L.P. A. Nos. 493 and 494 of Samvat 2005 (Pepsu) is to the order made by the High Court in the connected matter which has given rise to the two Appeals Nos. 167 and 167 A of 1951. There	 an appeal was lodged from the payment order of the Liquidation Judge	 but it was dismissed on the same ground	 namely	 want of a certificate from the Single Judge. In Civil Appeal No. 152 of 1951	 the argument for the appellant is that no certificate front the Single Judge is necessary	 as the matter is governed not by Ordinance X of 2005 of the Patiala State but by the Patiala States Judicature Farman Shahi	 1999 Bikarmi	 under which no certificate is necessary. It is true that under section 44 of the earlier Farman a certificate that the case is a fit one for appeal is required only if the judgment	 decree	 or order sought to be appealed is wade in the exercise of civil 98 756 appellate jurisdiction. It is	 however	 clear that we are not governed by this provision. The amendment application was made on 2nd February	 1950	 as stated already. No appeal is provided under the Civil Procedure Code from an order amending or refusing to amend a judgment	 decree or order	 though an appeal would lie from the amended decree or order. There is no warrant for the view that the amendment petition is a continuation of the suit or proceedings therein. It is in the nature of an independent proceeding	 though connected with the order of which amendment is sought. Such a proceeding is governed by the law prevailing on its date	 which admittedly is Pepsu. Ordinance X of 2005	 and which provides in section 52 for a certificate. The section is in the following terms: " Subject to any other provision of law	 an appeal shall lie to the High Court from a judgment	 decree or order of one Judge of the High Court and shall be heard by a Bench consisting of two Judges of the High Court: Provided that no such appeal shall lie to the High Court unless the Judge who decides the case or in his absence the Chief Justice certifies that the case is a fit one for appeal. " So far as the appellant firm is concerned	 there is no question of any right of appeal vested in it which is sought to be taken away by giving retrospective effect to the Ordinance which came into force in August	 1948. The order of the High Court holding that no appeal lies from an order of a single Judge without a certificate by him that the case is a fit one for appeal	 is	 in our opinion	 right. In the other two Appeals Nos. 167 and 167 A	 of 1951	 different considerations come into play. The payment order of the Liquidation Judge was on 18th January	 1949	 and the appeal was preferred on 19th February	 1949. In the meantime	 as there was some doubt on the question	 the appellants took the precaution of applying to the Judge for a certificate	 but this was dismissed on 3rd March	 1949. On the relevant dates	 the Patiala States Judicature Farman	 1999	 was in force	 and the appellants hood a	 right of 757 appeal from the payment order without a certificates They could not be deprived of this right by a subsequent change in the law	 unless the later enactment provides expressly or by necessary implication for retrospective effect being given. The learned Judges of the High Court conceded this in their order	 but they thought 'that section 116 of Ordinance X of 2005 (1948 49) contained an express provision to the contrary. The section is in these terms: Notwithstanding anything contained in this Ordinance	 all suits	 appeals	 revisions	 applications	 reviews	 executions and other proceedings	 or any of them	 whether civil or criminal	 pending in the Courts and before judicial authorities in any Covenanting State shall be continued and concluded respectively in Courts or before judicial authorities of the like status in the Union ; and the Courts or authorities in the Union shall have the same jurisdiction in respect	 of all such suits	 appeals	 revisions	 reviews	 executions	 applications and other proceedings	 or any of them	 as if the same had been duly commenced and continued in such Courts or before such authorities. " It is fairly obvious that this is a transitory regula tion	 providing for a change over of proceedings from one set of Courts in the Covenanting State to others of like status in the Union and for their continuance etc. in the latter Courts. It does not say that the proceedings must be treated as having freshly commenced. What is contemplated in the latter part of the section is a notional commencement	 if such a term could be used. The section obviously means that all rights which arose or are likely to arise in the future shall remain intact notwithstanding the new set up	 and that they would be dealt with by the Union Courts in place of the Courts of the Covenanting State. There is nothing in the section to justify the view that any taking away of a vested right of appeal retrospectively was intended. The decision in Colonial Sugar Refining Co. vs Irving(1) clearly applies to the facts	 and the order of the High Court that (1) 758 the appeals are not competent is	 in our opinion	 erroneous. The result is that Appeal No. 152 of 1951 is dismissed with costs throughout	 while Appeals Nos. 167 and 167A of 1951 are allowed with costs throughout. Appeal No. 125 dismissed. Appeals Nos. 167 and 167A allowed. Agents for the appellants in Appeals Nos. 167 and 167A: Mohan Behari Lal. Agent for the appellant in Appeal No. 152: Kundan Lal Mehta. Agent for respondents in Appeals Nos. 167 and 167A: Naunit Lal. Agent for respondent in Appeal No. 152: Mohan Behari Lal.

Summary:
Section 116 of the Pepsu Ordinance X of 2005 (1948 1949) is a transitory regulation providing for a change over of proceedings 'from one set of courts in the covenanting State to others of like status in the Union	 and for their continuance etc. in the latter courts. It does not mean that the proceedings must be treated as having freshly commenced. What is contemplated in the latter part of the section is a notional commencement	 and the section means that all rights which arose or are likely to arise in future shall remain intact not with standing the new set Lip and that they would be dealt with by the Union courts in place of the courts of the covenanting State. There is nothing in the section to justify the view that any taking away of a vested right of appeal retrospectively was intended. Under the Patiala States Judicature Farman of 1999 a certificate was necessary for an appeal to a Division Bench from an order of a single Judge of the Patiala High Court only in respect of judgments and orders made in the exercise of civil appellate jurisdiction. Under the Pepsu Ordinance X of 2005 (1948 49) a certificate was necessary in all cases. In Appeal No. 152 an application made on 2nd February	 1950	 for amendment of an order made by a Liquidation Judge in 1946 was dismissed and an appeal from the order of dismissal to a Division Bench was dismissed on 1st May	 1950	 for want of a certificate. In appeals Nos. 167 and 167A	 the payment orders were made on the 18th January	 1949	 and appeals from those orders were dismissed on 3rd March	 1949	 for want of a certificate: Held	 (i) that as a petition for amendment was not a continuation of the earlier proceedings but was in the nature of an 753 independent proceeding though connected with the order sought to be amended	 it was governed by the law prevailing on its date	 viz.	 the Pepsu Ordinance of 2005 under which a certificate was	 necessary	 and in Appeal No. 152 the dismissal of the appeal to the Division Bench for want of a certificate was right; (ii)that with regard to Appeals Nos. 167 and 167 A	 as the law in force on the relevant dates was the Patiala States Judicature Farman of 1999 the appellants had a right to appeal from the payment order without a certificate; this vested right could not be taken away by a subsequent change in the law unless the later enactment expressly or by necessary implication was retrospective in operation and deprived them of such a right	 that there was nothing in section 116 of the Ordinance to show that it was intended to have retrospective effect and the order of the High Court dismissing the appeals as incompetent was	 therefore	 erroneous. Colonial Sugar Refining Company vs Irving referred to.