PETITIONER:
SHRI DURGA PRASAD & ANOTHER
Vs.
RESPONDENT:
THE BANARAS BANK LIMITED
DATE OF JUDGMENT:
21/12/1962
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1963 AIR 1322 1964 SCR (1) 475
CITATOR INFO :
R 1971 SC 658 (6)
R 1972 SC1903 (14,16)
R 1973 SC1252 (17)
ACT:
Supreme Court, Appellate jurisdiction of-Certificate,
granted by High Court, if Competent-’Court immediately
below’–Meaning of-Constitution of India, Art. 133 (1).
HEADNOTE:
The Official Liquidator of the respondent Bank advertised
for sale, the two houses belonging to the Bank. These
houses were sold to the second appellant with the sanction
of the court. The second appellant thereafter transferred
the houses to the first appellant reciting in the deed that
the latter was the real owner and that the sale deed from
the Official Liquidator was obtained benami for him. The
Official Liquidator moved the High Court at Allahabad for an
order declaring the sale null and void and for an order re-
transferring the houses to the Bank. A
476
single judge of the High Court held that the first appellant
being at the material time a member of the committee of
inspection and he having suppressed that interest was
precluded from buying the property of the Bank and directed
the first appellant to convey the houses to the Official
Liquidator of the Bank. This order was confirmed by a
Division Bench of the High Court in appeal under cl. 10 of
the Letters Patent. The High Court then certified the case
under Art. 133 (1) (a) of the Constitution ,or appeal to
this Court. It was urged at the hearing of the appeal on
behalf of the Official Liquidator that the appeal was
incompetent, for the High Court had no jurisdiction to grant
the certificate under art. 133 (1) (a) of the Constitution
without certifying that the appeal involved some substantial
question of law.
Held, that under Art. 133 (1) of the Constitution the
expression ‘Court immediately below’ has not the same conno-
tation as the expression ‘Court subordinate to the High
Court’ and as the judgment of the Single judge was affirmed
in appeal, the appeal to the Supreme Court could not be
entertained with a certificate under Art. 133 (1) (a) unless
it was certified that it involves some substantial question
of law.
Deoki Nandan v. -State of U. P., A. 1. R. 1959 All. 10,
reversed.
Toolsay Persaud Bhuckt v. Benayek Misser (1896) L. R. 23
I.A. 102, Probhawati Kunwar v. Panmat Lodha, (1941) 45 Cal.
W. N. 1002, referred to.
Ladli Prasad Jaiswal v. The Karnal Disttillery Co. [1964]
Vol. I S. C. R. 270, relied on.
JUDGMENT:
CIVIL APPELLATE JURTSDICTION: Civil Appeal No. 569 of 1960.
Appeal from the judgment and decree dated September 9, 1958,
of the Allahabad High Court in Special Appeal No. 214 of
1956.
Ranganadham Chetty, A. V. Rangam, A. Vedavalli and M. I.
Khowaja, for the appellants.
G.S. Pathak and G. C. Mathur, for the respondent.
477
1962. December 21. The judgment of the Court was delivered
by
SHAH J.-The Banaras Bank Ltd-hereinafter called ‘the Bank’
was directed to be wound up by order of the Allahabad High
Court. A committee of inspection was appointed under s.
178-A of the Indian Companies Act, 1913 to act with the
Official Liquidator, and one of the members of the Committee
was Durga Prasad the first appellant in this appeal. The
Official Liquidator advertised for sale two houses which
formed part of the assets of the Bank. Roshan Lal the
second appellant made an offer to purchase the two houses
for Rs. 18,000/-. This offer was accepted by the Official
Liquidator and with the sanction of the Court the two houses
were sold to Roshan Lal on August 2, 1941. Roshan Lal
thereafter transferred the houses to Durga Prasad reciting
in the deed that the latter was “the real owner” of the
houses and that the sale deed from the Official Liquidator
was obtained by him “benami’ for Durga Prasad. On coming to
learn about this conveyance, the Official Liquidator moved
the High Court of Allahabad for an order that the sale be
declared null and void and that Durga Prasad be called upon
to surrender the two houses and to retransfer the same to
the Bank. The High Court held that the sale deed was
obtained by Durga Prasad who was the real purchaser, that he
had suppressed his interest in the purchase, and that being
a member of the committee for inspection, qua the Bank he
occupied the position of a trustee and was on that account
precluded from. buying the property of the Bank. The High
Court accordingly directed Durga Prasad to covey the houses
to the Official Liquidator of the Bank. This order was
confirmed in appeal tinder cl. 10 of the Letters Patent by a
Division Bench of the High Court. The High Court, however,
certified the case under Art. 33 (1) of the
478
Constitution for appeal to this Court. The High Court
observed :
“It is not in dispute that the judgment of
this Court involves directly or indirectly a
claim respecting property of a value of not
less than Rs. 20,006/- and, in view of the
decision of this Court in Shri Deoki Nandan v.
State of Uttar Pradesh (1), the applicants are
entitled as of right to a certificate under
Article 133 (1) of the Constitution without an
additional certificate that the case gives
rise to a substantial question of law. The
requisite certificate will accordingly issue.”
At the hearing before this Court counsel for the Official
Liquidator submitted that the appeal is incompetent, for the
High Court had no jurisdiction to grant the certificate
under Art. 133 (1) (a) of the Constitution without
certifying that the appeal involved some substantial
question of law. In our view this contention must succeed.
In Deoki Nandan v. State of Uttar Pradesh the Allahabad High
Court held.
“The words ‘the Court immediately below’
within the meaning of cl. (1) of Art. 133 of
the Constitution must be a court other than
the High Court. A single judge of a High
Court is not a court subordinate to the High
Court.
An appeal against an order of an appellate
Bench of the High Court dismissing an appeal
from an order of a single judge of the Court
on its original side rejecting a petition
under Art. 226 of the Constitution lies as a
matter of right under Art. 133 (1) of the
Constitution, if the claim is in respect of
property of a value in excess of Rs. 20,000/-
and it is not
(1) A.1 R. 1959 All, 15.
479
necessary that the case should give rise to
a substantial question of law.”
But the expression “court immediately below’ in Art. 133 (1)
has not the same connotation as the expression ‘court
subordinate to the High Court.’ In Toolsey Persaud Bhuckt v.
Benayek Misser (1), the Privy Council appears to have
expressed the view that a single judge of a High Court
trying an original proceeding was a court immediately below
the High Court hearing an appeal under the Letters Patent
from his judgment and therefore an appeal under S. 696 of
the Code of Civil Procedure Act XIV of 1882 (of which the
terms were in substance identical with the terms of Art. 133
(1)) could be certified for appeal to the Privy Council only
if a substantial question Of law was involved. The judicial
Committee observed
“Their Lordships think that no question of
law, either as to construction of documents or
any other point, arises on the judgment of the
High Court, and that there are concurrent
findings of the two Courts below on the oral
and documentary, evidence submitted to them.
That being SO, the present appeal cannot be
entertained.
In Probhawati Kunwar v. Panmal Lodha (2), the High Court of
Calcutta held that an appeal to the Privy Council cannot be
certified if the High Court confirms the judgment of a
single judge trying an original proceeding, unless it
involves a substantial question of law. In a recent case
Ladli Prasad Jaisuul v. The Karnal Distillery Company Ltd.
(3), this Court held that a single Judge hearing a second
appeal under S. 100 of the Code of Civil Procedure, 1908 is
for purposes of Art. 133 (1) the Court immediately below a
Division Bench of the High Court hearing an appeal against
his judgment under the Letters Patent. It was observed in
that case that
(1) (1896) L.R. 28 I.A. 102.
(2) (1941) 45 Cal, W..N. 1002.
(3) [1964] Vol, I s.C.R. 270.
480
the expression ‘Court immediately below’ used in Art. 133
(1) (a) does not mean Court subordinate to the High Court.
“A Court subordinate to the High Court is a Court subject to
the superintendence of the High Court, whereas a Court
immediately below is the Court from whose decision the
appeal has been filed.” In that case the Attorney-General
appearing for the respondents conceded that a single judge
of a High Court trying a suit or proceeding as a court of
original jurisdiction was a court immediately below the High
Court hearing an appeal from his decision-and it was
observed in the judgment of this Court that the concession
was properly made.
In the appeal before us, the judgment of the High Court
affirms the judgment of the single judge and the High Court
has not certified that the decision appealed from involves
any substantial question of law. The appeal cannot
accordingly be entertained. Counsel for the appellant
requested that in any event special leave to appeal under
Art. 136 of the Constitution be granted. But we are of
the view, having regard to all thecircumstances, that this
is not a fit case for granting leave to appeal.
The appealis therefore dismissed. There will be no
order as to costs.
Appeal dismissed.
481