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Ganpat Rai Hira Lal And Another v. Aggarwal Chamber Of Commerce Ltd. .
Factual and Procedural Background
The appeals arise out of the liquidation of two companies—Marwari Chamber of Commerce Ltd. and Aggarwal Chamber of Commerce Ltd. The Official Liquidator settled the lists of contributories, resulting in payment orders by the Liquidation Judge:
- Marwari Chamber of Commerce Ltd. (Civil Appeal No. 152 of 1951): Payment order dated 4 June 1946 for Rs 4,762-13-3, later modified by the High Court to Rs 24,005-7-3. On 6 December 1949 the Judicial Committee restored the original order, holding the High Court appeal time-barred.
- Aggarwal Chamber of Commerce Ltd. (Civil Appeals Nos. 167 & 167-A of 1951): After remand from the Judicial Committee, the Liquidation Judge ordered payment of Rs 8,191-0-9 on 18 January 1949.
Subsequently:
- Civil Appeal 152: The contributory firm (Murari Lal-Hari Ram) filed an application on 2 February 1950 under Section 152 CPC to correct an alleged clerical error, asserting that only Rs 21,805-7-3 was due. The Single Judge dismissed the application and refused a certificate for intra-court appeal. A Division Bench dismissed the would-be appeal in limine for want of such a certificate.
- Civil Appeals 167 & 167-A: The contributories appealed against the payment order on 19 February 1949; the appeal was dismissed by the Division Bench on 1 May 1950 for lack of a certificate from the Single Judge.
Legal Issues Presented
- Whether, after the coming into force of Pepsu Ordinance 10 of 2005 (August 1948), an appeal from a Single Judge to a Division Bench of the Pepsu High Court requires a certificate that “the case is a fit one for appeal.”
- Whether the Ordinance can retrospectively abrogate a vested right of appeal that existed under the earlier Patiala States Judicature Farman-E-Shahi 1999 (Bikarmi).
- In Civil Appeal 152 specifically, whether an application under Section 152 CPC to amend a liquidation order is governed by the pre-Ordinance Farman or by Ordinance 10 of 2005 for purposes of intra-court appeal.
Arguments of the Parties
Appellant's Arguments (Civil Appeal No. 152)
- No certificate is necessary because the governing law is the Patiala States Judicature Farman-E-Shahi 1999, not Ordinance 10 of 2005.
- Section 44 of the Farman requires a certificate only when the Single Judge’s order is passed in civil appellate jurisdiction; the present order (on an amendment application) is not of that nature.
The opinion does not detail arguments from the respondents or from the appellants in Appeals 167 and 167-A.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ganpat Rai Hira v. ACC of Samvat 2005 (Pepsu) | An intra-court appeal from a Single Judge requires a certificate under Ordinance 10 of 2005. | Relied upon by the High Court to dismiss the appeals in limine; the Supreme Court examined its correctness. |
| Colonial Sugar Refining Co. v. Irving, 1905 AC 369 | Vested rights of appeal cannot be taken away retrospectively unless the later enactment clearly so provides. | Applied to hold that the right of appeal in Appeals 167 & 167-A, which arose before the Ordinance, could not be extinguished. |
Court's Reasoning and Analysis
Civil Appeal 152 of 1951
- An amendment application under Section 152 CPC is a separate, self-contained proceeding; it is governed by the law in force on the date of that application (2 February 1950).
- On that date Ordinance 10 of 2005 was operative, and Section 52 of the Ordinance expressly requires a certificate for an intra-court appeal from a Single Judge.
- No vested right of appeal existed before the amendment application; therefore, the High Court was correct in insisting on the certificate and in dismissing the appeal.
Civil Appeals 167 & 167-A of 1951
- The payment order was passed on 18 January 1949 and the appeal lodged on 19 February 1949, when the earlier Farman was in force.
- Under that Farman, no certificate was needed; a vested right of appeal therefore accrued to the appellants.
- Section 116 of Ordinance 10 of 2005 is merely a transitional provision ensuring that pending proceedings continue in courts of like status; it contains no language indicating an intention to retrospectively remove existing rights of appeal.
- Accordingly, the High Court erred in holding the appeals incompetent for lack of a certificate.
Holding and Implications
DISPOSITION: Civil Appeal No. 152 of 1951 is dismissed with costs; Civil Appeals Nos. 167 and 167-A of 1951 are allowed with costs.
Implications: The decision reaffirms that:
- A certificate under Pepsu Ordinance 10 of 2005 is mandatory for intra-court appeals only where the cause of action arose after the Ordinance came into force.
- Vested rights of appeal arising prior to legislative change remain unaffected in the absence of explicit retrospective intent. While the ruling resolves the parties’ specific disputes, it primarily clarifies the temporal reach of Ordinance 10 of 2005 rather than establishing a broad new precedent.
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 (c) of clause (1) of Article 133 of the Constitution.
2. The facts in Civil Appeal No. 152 of 1951 are different from those in the other two appeals, and the consequences are different also.
3. 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 the 4th of June, 1946, in Civil Appeal No. 152 of 1951 and on 18th January, 1949, in the latter two appeals.
4. 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 4762-13-3 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.
5. 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 8191-0-9 on 18th January, 1949, as aforesaid.
6. 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 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 v. ACC 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.”
7. The reference in the order to the case of Ganpat Rai Hira v. ACC 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.
8. In Civil Appeal No. 152 of 1951, the argument for the appellant is that no certificate from the Single Judge is necessary, as the matter is governed not by Ordinance 10 of 2005 of the Patiala State but by the Patiala States Judicature Farman-E-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 made in the exercise of civil 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 10 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....”
9. 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.
10. 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 had a right of appeal from the payment order without a certificate. 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 10 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.”
11. It is fairly obvious that this 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 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. v. Irving 1905 AC 369 clearly applies to the facts, and the order of the High Court that the appeals are not competent is, in our opinion, erroneous.
12. The result is that Appeal No. 152 of 1951 is dismissed with costs throughout, while Appeals Nos. 167 and 167-A of 1951 are allowed with costs throughout.
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