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PETITIONER: GARIKAPATTI VEERAYA

       Vs.

RESPONDENT: N.   SUBBIAH CHOUDHURY

DATE OF JUDGMENT: 01/02/1957

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P. DAS, S.K.

CITATION:  1957 AIR  540            1957 SCR  488

ACT: Supreme  Court, Appellate Jurisdiction of-- Decree in   suit instituted  prior to the Constitution reversed in appeal  by High  Court after the Constitution-Value  of  subject-matter short  of  twenty-thousand Appeal, if lies-Vested  right  of appeal-Constitution of India, Arts.133, 135.

HEADNOTE: This application for special leave to appeal arose out of  a suit instituted on April 22, 1949, and valued at Rs. 11,400. The  Trial  Court dismissed the suit and the High  Court  in appeal   reversed  that  decision  on  February  10,   1955. Application  for  leave to appeal to the Supreme  Court  was refused  by the High Court on the ground that the value  did not come upto Rs. 20,000.  It was contended on behalf of the applicant  that  he  had a vested right  of  appeal  to  the Federal Court under the law as it then stood and that  Court having  been substituted by the Supreme Court, he was as  of right  entitled to appeal to that Court under Art.   I35  Of the Constitution. Held,  (per  Das C.J., Bhagwati, B. P. Sinha and S.  K.  Das jj., Venkatarama Ayyar J. dissenting) that the contention of the  applicant was well-founded, that he had a vested  right of  appeal to the Federal Court on and from the date of  the suit  and  the  application  for  special  leave  should  be allowed. The  vested  right of appeal was a  substantive  right  and, although  it could be exercised only in case of  an  adverse decision, it was governed by the law prevailing at the  time of  commencement  of the suit and comprised  all  successive rights   of  appeal  from  court  to  court,  which   really constituted  one  proceeding.  Such a right could  be  taken away  only by a subsequent enactment either expressly or  by necessary intendment. Colonial Sugar Refining Company Ltd.  V. Irving, (1905) A.C. 369, followed. Sadar Ali v. Dalimuddin, (1929) I.L.R. 56 Cal. 5I2 and In re Vasudeva Samiiar, (1928) I.L.R. 52 Mad. 361, relied on. Case-law reviewed.

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Article  133 Of the Constitution had no application to  such cases.  It was not intended to have retrospective  operation so as to take away this vested right nor did it do so either in  express  terms or by  necessary  intendment.   Correctly construed  it  should be read as restricted  to  only  those judgments,  decrees  and  final orders of a  High  Court  in respect of which there was no such 489 vested  right  of  appeal,  as  otherwise  cl.  2o  of   the Adaptation  of Laws Order, 1950, which saves such  a  right, would  become nugatory.  A litigant in a Princely State  who could  have no vested right of appeal to the  Federal  Court must, however, come under Art. 133. Janardan  Reddy  v. The State, (1950) S.C.R.  940,  Keshavan Madhava Menon v. The State of Bombay, (1951) S.C.R. 228  and Dajisahib  Mane v. Shankar Rao Vithal Rao, (1955)  2  S.C.R. 872, referred to. This vested right of appeal acquired under the old law was a matter  contemplated  by Art.  I35 Of  the  Constitution  in relation to which the jurisdiction and powers of the Federal Court   were   exercisable  at  the  commencement   of   the Constitution  and as such it was within the purview  of  the appellate jurisdiction of the Supreme Court, and the  appeal was  entertainable by it.  Article I35 could not be  limited to  such cases only where the right of appeal  had  actually arisen  in  a concrete form, and was no  mere  potentiality, immediately before the Constitution. Ramaswami  Chettiar  v. The Official Receiver,  A.I.R.  1951 Mad.  1051.  Veeranna v. China Venkanna,  I.L.R.  1953  Mad. 1079, Probirendra Mohan v. Berhampore Bank Ltd.  A.I.R. 1954 Cal.  289,  Ram Sahai v. Ram Sewak, A.I.R.  1956  All.  321, Tajammul  Hussain v. Mst.  Qaisar Jagan Begam,  A.I.R.  1956 All. 638 and The Indian Trade and General Insurance Co. Ltd. v. Raj Mal Pahar Chand, A.I.R. 1956 Punj. 228, overruled. Canada Cement Co. Ltd. v. East Montreal (Town of), (1922)  I A.C. 249 and Nathoo Lal v. Durga Prasad, (1955) I S.C.R. 51, distinguished. Per Venkatarama Ayyar 1. A right of appeal was undoubtedly a substantive  right but it did not therefore, follow that  it vested in the parties to a suit on and from the date of  its commencement  and  the decision in Colonial  Sugar  Refining Company Ltd. v. Irving on which such a theory was sought  to be   founded  was  neither  supportable  in  principle   nor warranted by the authorities it relied on. Right to appeal to a superior court could arise only on  the passing of an adverse decision and the rights of  successive appeals  provided  by the law did not  constitute  either  a single proceeding or a single right as will be apparent from the relevant provisions of the Code of Civil Procedure. Colonial Sugar Refining Company Ltd. v. Irving, (1905)  A.C. 369, not followed. Sadar Ali v. Dalimuddin, (1929) I.L.R. 56 Cal. 5I2 and In re Vasudeva Samiar, (1928) I.L.R. 52 Mad. 361, dissented from. Case-law discussed. Assuming  that  the petitioner had such a  vested  right  of appeal to the Federal Court before the commencement of, the 490 Constitution,  that right must be held to have  ceased  with the  repeal  of  the  Government of  India  Act,  1935,  and consequent  a  abolition  of  the  Federal  Court,  by   the Constitution. Veeranna v. Chinna Venkanna, I.L.R. 1953 Mad.  I079 and Daji Sahib  Mane v. Shankar Rao Vithal Rao Mane, (1955) 2  S.C.R. 872, relied on. There was, therefore, nothing on which Cl. 20 Of the Adapta-

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tion  of  Laws Order, 1950, could operate so as to  keep  it alive.  Nor could this Court be considered to be a successor of the Federal Court so as to attract the operation of  that clause. State  of Seraikella v. Union of India, (1951)  S.C.R.  474, relied on. Article  I33  applied to all judgments,  decrees  and  final orders of High Courts in Civil Proceedings passed after  the commencement  of the Constitution irrespective of the  dates of  their institution and if an appeal did not  satisfy  its requirement   as  to  valuation  it  must  be  held  to   be incompetent.   Any  vested right of appeal that  might  have existed prior to the Constitution must be held to have  been taken away by it by necessary implication. Canada  Cement  Co.  v. East Montreal, (1922)  1  A.C.  249, Durousseau v. United States, 3 L. Ed. 232 : 6 Cranch 307 and Baltimoye  and Potomac Railroad Company v. J. H.  Grant,  98 U.S. 23I : 25 L. Ed. 231, referred to. Article 135 Of the Constitution could have no application to such  a  case as Art. 133 applied and there  was  no  vested right  to appeal to the Federal Court in relation  to  which jurisdiction  was  exercisable  by  that  Court  immediately before   the   commencement  of   the   Constitution.    The application for special leave must, therefore, be refused.

JUDGMENT: CIVIL APPELLATE JUIRISDICTION: Petition for Special Leave to appeal No. 170 of 1955 and Civil Miscellaneous Petition  No. 579 of 1956. Petition  under Article 136 of the Constitution for  special leave to appeal from the judgment and decree dated March  4, 1955, of the Andhra High Court in A.S. No. 301 of 1951. M.   S. K. Sastri, for the petitioner. T.   V. R. Tatachary, for the respondents Nos. 1 and 2. M.   C.  Setalvad Attorney-General for India, for  assisting the Court. 1957.  February 1. The judgment of Das C.J., Bhagwati, B. P. Sinha  and  S.  K.  Das  JJ.  was  delivered  by  Das   C.J. Venkatarama Ayyar J. delivered a separate judgment. 491 DAS C.J.-This is an application for special leave to  appeal from  the judgment passed on February 10, 1955 by  the  High Court  of  Andhra.  The suit out of which  this  application arises was instituted on April 22, 1949, in the sub-court of Bapatla,  which  was  then within the  jurisdiction  of  the Madras  High  Court.  The judgment of the  trial  court  was passed  on  November  14, 1950, dismissing  the  suit.   The plaintiff  appealed. 0 In October 1, 1953, the Andhra  State was formed and a new High Court was established under a.  28 of  The  Andhra  State  Act, 1953 (Act  XXX  of  1953),  and apparently the appeal stood transferred to the High Court of Andhra  under the provisions of s. 38 of the same  Act.   On March 4, 1955, the High Court of Andhra accepted the appeal, reversed the decree of the trial court and decreed the suit. The  application  for  leave to appeal  to  this  Court  was dismissed  on the ground, inter alia, that the value of  the property  was  only Rs. 11,400 and did not come  up  to  the amount  of Rs. 20,000.  In this application  the  petitioner contends  that  the judgment being one of reversal  and  the value  being above Rs. 10,000, he was entitled, as a  matter of  right,  to come up to this Court on appeal and  as  that right  has been denied to him by the High Court, this  Court should,  in  exercise of its discretion, grant  him  special

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leave  to  appeal  to  this Court  under  Art.  136  of  the Constitution. It  will  be  convenient  at this  stage  to  refer  to  the statutory  provisions  relating  to appeal  from  any  final judgment,  decree  or order of a High Court in  India  to  a superior court.  This was regulated by the provisions of the Letters  Patent  of each particular High.  Court.’  It  will suffice  for our present purpose to refer to cl. 39  of  the Letters  Patent,  1865 relating to the High  Courts  of  the three  Presidency towns.  Under that clause an appeal  could be taken to His Majesty in Council from any final  judgment, decree  or  order  of the High Court made on  appeal  or  in exercise  of its original jurisdiction by a majority of  the full  number  of  Judges of the said High Court  or  of  any Division  Court provided, in either case, the sum or  matter at issue was of the amount or value of not less than  10,000 rupees or that 492 such  judgment,  decree  or  order  involved,  directly   or indirectly, some claim, demand or question to or  respecting property  amounting  to or’ of the value of  not  less  than 10,000  rupees or from any other final judgment,  decree  or order  made either on appeal or otherwise as aforesaid  when the  said High Court should declare that the case was a  fit one for appeal to His Majesty in Council.  The  requirements to  be fulfilled for appeal to His Majesty in  Council  were also  set  out  in  ss. 109 and 110 of  the  Code  of  Civil Procedure,  1908.  The Government of India Act, 1.935 by  s. 200  established a Federal Court for India.  Section 204  of that  Act  gave original jurisdiction to the  Federal  Court with  respect  to certain matters.   Section  205  conferred appellate  jurisdiction  on  the  Federal  Court  from   any judgment,  decree or final order of a High Court in  British India  if the High Court certified that the case involved  a substantial question of law as to the interpretation of that Act  or any Order in Council made thereunder and  prohibited direct  appeal  to  His Majesty in Council  either  with  or without  special  leave in those matters.  When  the  Indian Independence  Act, 1947 was passed by Parliament  it  became necessary  to enlarge the jurisdiction of the Federal  Court to  enable  the  Federal Court to  entertain  appeals  which previously went to His Majesty in Council.  For that purpose was enacted the Federal Court (Enlargement of  Jurisdiction) Act,  1947,  being  Act I of 1948.  Section 3  of  that  Act provided that as from the appointed day, i.e., from February 1,  1948, an appeal would lie to the Federal Court from  any judgment to which the Act applied without the special  leave of the.  Federal Court, if an appeal could have been brought to  His Majesty in Council under the provisions of the  Code of Civil Procedure, 1908 or of any  other law immediately in force after the appointed day and with the special leave  of the  Federal  Court  in any other case and  that  no  direct appeal  would lie to His Majesty in Council either  with  or without special leave from any such judgment.  "Judgment  to which  this Act applied" was defined by s. 2(b)  as  meaning any  judgment, decree or final ’order of a High Court  in  a civil, case 493 from  which a direct appeal could have been brought  to  His Majesty in Council, either with or without special leave, if that Act had not, been passed.  By s. 4 all proceedings  and steps taken in, and orders made and certificates granted by, a High Court. in connection with an appeal to His Majesty in Council, unless the records had been transmitted, were to be deemed to be proceedings and steps taken and orders made and

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certificates granted in connection with an appeal from  that judgment  to  the Federal Court under the Act and  would  be concluded, or as the case may be, have effect,  accordingly. Under  s. 5 every application to His Majesty in Council  for special  leave  to appeal from a judgment to which  the  Act applied  remaining  undisposed  of  immediately  before  the appointed  day  would on that day stand transferred  to  the Federal Court by virtue of the Act and would be disposed  of by that Court as if it had been an application duly made  to that  Court  for  special  leave to  appeal  from  the  said judgment.   This  was  followed by the  Abolition  of  Privy Council  Jurisdiction Act, 1949 (Act V of 1949),  which  was passed  by the Constituent Assembly in September,  1949  and came  into force on October 10, 1949, which was referred  to as the ’appointed day’.  Section 2 provided that as from the ’appointed day the jurisdiction of His Majesty in Council to entertain  appeals and petitions from or in respect  of  any judgment,  decree  or order of any court or  tribunal  other than  the  Federal  Court  within  the  territory  of  India including  appeals  and  petitions in  respect  of  criminal matters whether such jurisdiction was exercisable by  virtue of  His  Majesty’s prerogatives or  otherwise  would  cease. Section  5  conferred  corresponding  jurisdiction  on   the Federal  Court, that is to say, as from the  ’appointed  day the  Federal  Court  was  authorised,  in  addition  to  the jurisdiction conferred on it by the Government of India Act, 1935  and  the Federal Court (Enlargement  of  Jurisdiction) Act,  1947, to have the same jurisdiction to  entertain  and dispose  of Indian appeals and petitions as His  Majesty  in Council  had  by  virtue of His  Majesty’s  prerogatives  or otherwise  immediately  before  the  ’appointed  day’.   All proceedings in respect of any 494 Indian   appeal  pending  before  His  Majesty  in   Council immediately before the appointed day’ were by s. 6 to  stand transferred to the Federal Court and were to be disposed  of by it in the exercise of the jurisdiction conferred on it by the Act. It  will be recalled that the suit out of which the  present petition arises was filed on April 22, 1949.  The petitioner contends  that  as from the date of the institution  of  the suit  he  acquired a vested right to appeal to  the  Federal Court  which  has since then been replaced  by  the  Supreme Court.   In support of this contention he relies on  certain judicial decisions to which reference may now be made. The leading case on the subject relied on by the  petitioner is  Colonial Sugar Refining Company Ltd. v.  Irving(1).   In that  case  the  Collector of Customs acting  under  an  Act called  the Excise Tariff Act, 1902 required the  appellants to pay pound 20,100 excise duty on 6,700 tons of sugar.  The appellants disputed the claim.  So they deposited the ’money with the Collector and then brought an action in the Supreme Court of Queensland against the Collector for recovering the sum  so  deposited.  The writ in the action  was  issued  on October  25,  1902.  At the date of the institution  of  the action  the Order in Council of June 30, 1860, gave a  right of appeal to His Majesty in Council from the judgment of the Supreme  Court.  A special case having been stated  for  the opinion of the Full Court, that Court on September 4,  1903, gave  judgment  for  the Collector.   In  the  meantime  the Judiciary  Act,  1903 had been passed and  it  received  the royal  assent  on August 25, 1903, that is to say  about  10 days before the judgment was delivered by the Supreme Court. By s. 38 the jurisdiction of the High Court of Australia’ in certain   specified  matters  was  made  exclusive  of   the

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jurisdiction  of the several Courts of the States and by  s. 39  it  was made exclusive in all other  matters  except  as therein provided.  Sub-section 2 of s. 39 provided that  the several Courts of the States would be invested with  Federal jurisdiction  in  all matters above mentioned  except  those specified in s. 38, subject to certain (1)  [1905] A.C. 369,   495 conditions  and  restrictions, one of which was  that  every decision  of  a  Court  of  a  State  from  which,  at   the establishment  of  the Commonwealth, an appeal  lay  to  the Queen  in Council, should be final and conclusive except  so far  as an appeal might be brought to the High  Court.   The result of this Act was that Her Majesty in Council ceased to be a Court of Appeal from the decision of the Supreme  Court and  the only appeal from the Supreme Court under  that  Act lay  to the High Court of Australia.  The Supreme  Court  of Queensland having granted leave to the appellants under  the Order in Council of 1860 the appellants filed the appeal  in the  Privy Council.  The respondent filed a petition  before the Privy Council praying that the appeal might be dismissed with  costs  on the ground that the right of appeal  to  His Majesty in Council given by the Order in Council of June 30, 1860, under which the leave had been granted, had been taken away  by  the Judiciary Act, 1903 and that the  only  appeal from  a decision of the Supreme Court of Queensland  lay  to the High Court of Australia.  On behalf of the appellants it was  contended  that the provisions of  the  Judiciary  Act, 1903, on which the respondent relied, were not retrospective so  as to defeat a right in existence at the time  when  the Act received the royal assent.  Their Lordships of the Privy Council dismissed the respondent’s petition and observed  as follows:- "  As regards the general principles applicable to the  case there  was  no  controversy.  On the one hand,  it  was  not disputed  that  if  the matter in question be  a  matter  of procedure  only, the petition is well founded, On the  other hand,  if  it  be more than a matter  of  procedure,  if  it touches  a right in existence at the passing of the Act,  it was  conceded  that,  in  accordance with  a  long  line  of authorities  extending  from the time of Lord  Coke  to  the present  day, the appellants would be entitled  to  succeed. The Judiciary Act is not retrospective by express  enactment or by necessary intendment.  And therefore the only question is, was the appeal to Hi& Majesty in Council a right  vested in the appellants at the date of the passing of the Act,  or was it a mere matter of procedure ? It seems to their 496 Lordships  that  the question does not admit of  doubt.   To deprive  a  suitor  in a pending action of an  appeal  to  a superior  tribunal  which belonged to him as of right  is  a very   different  thing  from  regulating   procedure.    In principle   their  Lordships  see  no   difference   between abolishing an appeal altogether and transferring the  appeal to a new tribunal.  In either case there is an  interference with  existing  rights  contrary to  the  wellknown  general principle   that  statutes  are  not  to  be  held  to   act retrospectively  unless a clear intention to that effect  is manifested." This  proposition  of  law has been  firmly  established  in English jurisprudence and this decision is accepted as sound and  cited with approval in leading text books.  As will  be presently seen, it has been followed and applied in numerous decisions  in  England  and India  and  its  correctness  or authority  has  not been questioned by any  of  the  learned

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counsel appearing before us on the present occasion. The principle of the above decision was applied in India  by Jenkins C.J.in Nana bin Aba v. Skeku bin Andu (1) and  by the  Privy  Council itself in Delhi Cloth and General  Mills Co.Ltd.  v. Income Tax Commissioner, Delhi (1).  In  Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi  (supra) two assessment orders were made, one on  June 12, 1923, and the other on March 23, 1924.  In each case the sum  in dispute exceeded Rs. 10,000.  At the request of  the assessee  two cases were stated by the Commissioner  to  the High  Court under s. 66 of the Indian Income Tax  Act.   The High  Court  affirmed the decisions of the  Commissioner  in January,  1926.  The petitioner applied for leave to  appeal to  the  Privy Council.  On April 1, 1926, came  the  Indian Income  Tax  Amendment Act, 1926 which added s. 66A  to  the Indian  Income  Tax Act which gave a right of  appeal.   The learned  Judges of the High Court were of opinion  that  the petitioners had a right of    appeal   to  His  Majesty   in Council provided they could in     effect bring their  cases within the requirements of a. 109  (c) of the Code of  Civil Procedure but not otherwise.  The High Court dealt with  the applications for (1)  [1908] I.L.R. 32 Bombay 337. (2)  [1927] L.R. 54 I.A. 421; I.L.R.9  Lah. 284. 497 certificates  on that footing but dismissed them and  as  it refused to certify that the case was a fit one for appeal to His  Majesty  in Council, the company applied to  the  Privy Council  for special leave to appeal from the two orders  of the High Court passed in January, 1926.  It will be  noticed that in January, 1926 when the orders were made by the  High Court  under s. 66, s. 66A was not in the Act at all and  it had  been held by the Privy Council in Tata Iron  and  Steel Company  Ltd. v. Chief Revenue Authority(1), that there  was no  right  of appeal from a judgment delivered by  the  High Court  under s. 66 of the Indian Income Tax Act.  -Therefore the orders of the High Court were final when they were  made in January 1926.  Such was the position until April 1, 1926, when s. 66A was added to the Act.  The question was  whether this section destroyed the finality that had attached to the orders  when they were made and gave any right of appeal  at all from the orders of the High Court made before the Act of 1926 came into force.  Their Lordships answered the question as follows: " The principle which their Lordships must apply in  dealing with this matter has been authoritatively enunciated by  the Board  in Colonial Sugar Refining -Co. v. Irving(1),  where, it  is  in  effect laid down that,  while  provisions  of  a statute  dealing  merely  with  matters  of  procedure   may properly,    unless   that   construction    be    textually inadmissible, have retrospective effect attributed to  them, provisions  which touch a right in existence at the  passing of the statute are not to be applied retrospectively in  the absence of express enactment or necessary intendment.  Their Lordships can have no doubt that provisions which if applied retrospectively,  would deprive of their  existing  finality orders which, when the statute came into force, were  final, are provisions which touch existing rights.  Accordingly, if the  section now in question is to apply to orders final  at the  date  when it came into force, it must  be  clearly  so provided.   Their Lordships cannot find in the section  even an  indication to that effect.  On the contrary, they  think there is a clear (1) [1923] L.R. 50 I.A. 212. (2) [1905] A.C. 369.

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498 suggestion that a judgment of the High Court referred to  in sub-s. 2 is one which under sub-s. 1 has been. pronounced by " not less than two judges of the High Court ", a  condition which  was  not itself operative, until the  entire  section came into force. In their Lordships’ judgment, therefore, the petitioners  in these  cases  have  no statutory right  of  appeal  to.  His Majesty in Council.  Only by an exercise of the  Prerogative is either appeal admissible." The  question of finality of order was considered.  by  this Court in the case of Indira Sohanlal v. Custodian of Evacuee Property,  Delhi  and others (1).  In that  case  the  facts shortly  stated  were as follows: On October 10,  1947,  the appellant had arranged with a Pakistani for the exchange  of certain properties she left behind at Lahore at the time she migrated to India after the partition for certain lands in a village  in the State of Delhi belonging to that  Pakistani. On   February  23,  1948,  the  appellant  applied  to   the Additional  Custodian, for confirmation of  the  transaction under s. 5-A of the East Punjab Evacuees’ (Administration of Property) Act, 1947 as amended in 1948.  Section 5-B of that Act  provided  that if the original order under s.  5-A  was passed  by  an  Additional or Deputy  Custodian  of  Evacuee Property,  any person aggrieved by such order  might  appeal within 60 days, from the date of the order to the  Custodian of  Evacuee  Property; and subject only to the  decision  on such  appeal, if any, the order passed by the  Assistant  or Deputy  Custodian would be final and conclusive.   For  some reason or other the appellant’s application for confirmation was  not taken up promptly, but was adjourned from  time  to time.   -In   the  meantime  the   East   Punjab   Evacuees’ (Administration  of  Property)  Act, 1947  was  repealed  by ordinances, which in their turn were eventually replaced  by the  Administration of Evacuee Property Act,  1950  (Central Act XXXI of 1950).  Section 27 (1) of the Act empowered  the Custodian   General,  either  on,  his  own  motion  or   on application  made  to him in this behalf, to  call  for  the record  of  any proceeding in which any  district  judge  or Custodian had passed an (1)  [1955] 2 S.C.R. 1117. 499 order  for  the  purpose of satisfying  himself  as  to  the legality or propriety of any such order and to pass order in relation  thereto as he thought fit.  In other words  s.  27 (1) of the new Act gave a power of revision to the Custodian General.   On  March  20,  1952,  the  Additional  Custodian acceded  to  the appellant’s application and  confirmed  the exchange.   On May 59 19529 the appellant applied to be  put in  possession.  Thereupon a notice was issued under  s.  27 (1)  of  the Central Act XXXI %of 1950 to the  appellant  to show  cause why the order of the Additional Custodian  dated March  20, 1952, should not be set aside.  On May 20,  1953, the  Custodian  General passed an order  setting  aside  the order of confirmation passed by the Additional Custodian  on the  ground, inter alia, that notice had not been served  on all parties interested and directed the Custodian to  decide the   case  on  notice  to  all  parties  interested.    The petitioner  obtained special leave to appeal to  this  Court against  the  order  of the  Custodian  General  of  Evacuee Property.  At the hearing of the appeal the learned  counsel for. the appellant contended that according to the principle ,laid down by the, Privy Council in Colonial Sugar  Refining Co.  Ltd.  V. Irving (supra), she had, on the filing of  her application  for  confirmation in 1948,  acquired  a  vested

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right to have it determined under. s. 5-A with the attribute of  finality and conclusiveness attaching to the order  when made just as a litigant acquired a vested right of appeal on the  commencement of his suit or proceeding and that  vested right  could not be taken away by subsequent statute  except by  express  provision or by necessary-  intendment.   There was,  according  to the appellant, nothing in s. 27  of  the Administration  of Evacuee Property Act, 1950  (Central  Act XXXI  of 1950), which expressly or by  necessary  intendment took  away that vested right.  It will’ be noticed  that  at the  date.  of the commencement of the Central Act  XXXI  of 1950 no order had actually been made to which the  attribute of finality could attach.  In these circumstances this Court repelled the contention of the appellant with the  following words: 500 "  However this may be, it appears to be clear that while  a right  of  appeal  in  respect  of  a  pending  action   may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action-though we do  not so  decide-no  such vested right to obtain  a  determination with  the attribute of finality can be predicated in  favour of a litigant on the institution of the action.  By the very terms  of  section  5-B  of East Punjab  Act  XIV  of  1947, finality attaches to it on the making of the order.  Even if there  be,, in law, any such right at all as the right to  a determination  with the attribute of finality, it can in  no sense  be  a vested or accrued right.  It  does  not  accrue until  the  determination is in fact made,  when  alone  the right  to  finality becomes an existing right  as  in  Delhi Cloth and General Mills Co.  Ltd. v. Income Tax Commissioner (1).   We are, therefore, of the opinion that the  principle of Colonial Sugar Refining Co. Ltd. v. Irving (supra) cannot be  invoked in support of a case of the kind we are  dealing with." It is clear from the above passage that this Court, on  that occasion,  left open the question whether a right of  appeal in  respect  of  a pending action could  be,  treated  as  a substantive   right   vesting  in  the   litigant   on   the commencement   of  the  action.   It   becomes,   necessary, therefore, to go into that question in detail. In  Ramakrishna Iyer v. Sithai Ammal (2 ), a  magistrate  on August 4, 1923, granted sanction under s. 195 of the Code of Criminal  Procedure  to  prosecute the  the  respondent  for having  preferred  a  false charge of  dacoity  against  the appellant.   Sub-section  6 of s. 195, as it stood  at  that date, provided that the sanction might be revoked or granted by  any authority to which the authority giving or  refusing it  was subject.  Pursuant to the sanction  the  complainant filed  a  petition of complaint.  On August  22,  1923,  the respondent  applied  for revocation of the sanction  but  no order was made.  On September 1, 1923, s. 195 of the Code (1)  (1927) I.L.R. 9 Lahore 284. (2)  (1925) I.L.R. 48 Mad. 620 (F.B). 501 of Criminal Procedure was amended.  The relevant portion  of the amended section was in these terms: " 195. (1) No court shall take cognisance---- (a)......................................... (b)  of  any offence punishable under any of  the  following sections  of the same Code, namely, sections 193, 194,  195, 196,  199, 200, 205, 206, 207, 208, 209, 210, 211  and  228, when  such offence is alleged to have been committed in,  or in  relation to, any proceeding in any court, except on  the complaint in writing of such court or of some other court to

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which such court is subordinate; or After the amendment came into force the respondent  received notice  of the prosecution already instituted  against  her. In  1924  she filed another petition for revocation  of  the sanction.   The  magistrate  revoked,  the  sanction.    The complainant  petitioner  filed this  petition  against  this order  of  revocation  of  sanction.   In  dismissing   this application  a Full Bench of five Judges of the Madras  High Court presided over by Courts Trotter C. J. referred to  the decision of the Privy Council in Colonial Sugar Refining Co. Ltd.  v.  Irving  (supra) and quoted  the  passage  in  Lord Macnaghten’s judgment as laying down the principle in  clear language.   At page 629 Coutts Trotter C. J., who  delivered the judgment of the Full Bench, stated as follows :- "The question we have to decide is whether this was a  right of  entering  the Superior Court and invoking  its  aid  and interposition to redress the error of the Magistrate’s Court below  and therefore it seems to us that, on  principle  and those  very weighty authorities. we ought to hold that  this is not a case of procedure but it is a case of a real  right to  invoke  the aid of a higher tribunal.  We  are  also  of opinion  that  those  principles  are  really.involved   and carried  out  by section 6 of the General Clauses Act  X  of 1887." It will be noticed that even the peremptory language of  the amended s. 195 quoted above was not regarded 502 as  containing  anything  which expressly  or  by  necessary intendment  took  away  the right which had  vested  in  the respondent  under old s. 195(6) when the sanction  had  been granted against her on August 4,.1953, to have it revoked. In  Daivanayaka Reddiyar and two others v. Renukambal  Ammal (1),  a  suit was filed on March 21, 1921, by  a  widow  for maintenance.   It was valued at rupees 14,600  according  to the  provisions of the Court Fees Act (VII of 1870) then  in force.   Under s. 13 of that Court Fees Act appeals  lay  to the district court or the High Court according as the  value of  the subject matter of the suit was below or over  rupees 5,000.,  On April 18, 1922, the Madras Court Fees  Amendment Act  (V of 1922) came into force.  Section 7(2) of  the  old Court  Fees Act (VII of 1870) was amended.  The trial  court decreed  the suit on March 13, 1923.  On April 19, 1923  the defendants filed an appeal in the High Court.  In the appeal the court fee was paid on Rs. 2,633-5-4 calculated according to the valuation in terms of the amended Act.  An  objection was  taken  on behalf of the plaintiff-respondent  that  the appeal  did not lie to the High Court but should  have  been filed in the district court.  The contention was that though the suit was valued at more than Rs. 5,000 under the law  in force at the time of filing of the plaint, yet the valuation of  the suit according to the amended Court Fees Act at  the time the appeal was presented would have been less than  Rs. 3,000  and,  therefore, the appeal, to the  High  Court  was incompetent.   The  following question was referred  to  the Full Bench: " Does the appeal against the decree in a suit in which  the valuation  of  the relief claimed. according to the  law  in force at the date of the plaint was more than Rs. 5,000  but at  the time of the appeal is less than Rs. 5,000  owing  to the  amendment of the Court Fees Act, lie to the High  Court or to the District Court The  Full  Bench consisting of three Judges  held  that  the appeal had properly been brought before the High  court. The Full Bench observed: (1)[1927]     I.L.R. 50 Mad.  857.

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503 "  It is argued that this section does not confer any  right of  appear to the High Court in definite classes  of  suits, but  that the right of appeal is merely given to  the  Court authorised  to hear appeals and the question of whether  the Court is the District Court or the High Court depends on the valuation. of the suit at the time of filing the appeal.  It is   difficult  to  treat  this  argument  as  in  any   way distinguishing the case from that of Colonial Sugar Refining Company  v. Irving (1), for, in both cases there  was,  when the suit was filed, a vested right of appeal to a particular tribunal,  which  is taken away by a  subsequent  enactment. According to the argument, when the right is taken away by a subsequent  alteration in a mere fiscal enactment, the  case is  not  the same as when the right depends  on  substantive law.   This  is untenable.  It Has been held  by  the  Privy Council  that this cannot be done and we are bound  by  that general expression of the law and must follow it." Bala  Prasad and others v. Shyam Behari Lal and  others  (2) which  was  a decision by a single judge  who  followed  the Privy   Council  decision  does  not  require  any   further consideration  and we may pass on to Ram Singha  v.  Shankar Dayal  (3) which is very important.  In the  last  mentioned case  a suit for rent was filed on July 12, 1926.   At  that time the North-Western Provinces Tenancy Act, 1901 (U.P. Act II  of 1901) was in force.  Section 177 of that Act  gave  a right of appeal from the decision of the Assistant Collector to  the  District  Judge when the amount  or  value  of  the subject  matter of suit exceeded Rs. 100.  On  September  7, 1926,  Agra Tenancy Act (U.  P. Act III of 1926)  came  into force.  It repealed the old Act of 1901.  Section 240 of the new  Act reproduced s. 175 of the old Act providing that  no appeal  would  lie from any decree’ or order passed  by  any court  under this Act except as provided in this  Act.   The material portion of s. 242, which corresponded to s. 177  of the old Act provided as follows:- "242  (1).  An appeal shall lie to the ’district judge  from the decree of an assistant collector of the first (1) [1905] A.C. 369.          (3) (1928) I.L.R. 50 All.  965 (F.B.). (2) (1928) 26 A.L.J.4o6. 65 504 class  or  of a collector in any of the  suits  included  in group A of the Fourth Schedule in which- (a)  the  amount  or  value of  the  subject-matter  exceeds rupees two hundred; or (b)........................................................... On  December  23, 1926 i.e., after the   new Act  came  into force, the suit was decreed by the assistant collector.  The defendant  presented an appeal to the district  judge.   The district  judge  returned  the memorandum  of  appeal.   The defendant  presented the memorandum before the Collector  of Etawah  and  that  officer was of opinion  that  he  had  no jurisdiction  to entertain the appeal and referred the  case to the High Court under s. 207 of the Agra Tenancy Act.  The reference came up before a Bench of the Allahabad High Court which referred the following question to a Full Bench: "  Whether  the filing of an appeal is governed by  the  law obtaining at the date of the institution of a suit or by the law  that may prevail at the date of the decision of it,  or at the date of the filing of the appeal ?" It will be noticed that the question definitely called for a decision  as  to  when the right of  appeal  vested  in  the litigant.  A Full Bench of three Judges presided over by Mr.

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Justice  Sulaiman, then Acting Chief Justice  of  Allahabad, expressed the following opinion: " In our opinion the point is concluded by the pronouncement of  their  Lordships  of the Privy Council in  the  case  of Colonial Sugar Refining Company Ltd. v. Irving (1).  In that case,  ordinarily  an appeal lay to their Lordships  of  the Privy Council from an order of the Supreme Court.  While the matter was pending in that court, the law was amended so  as to  allow an appeal to the High Court.  Their  Lordships  of the  Privy Council held that the new Act could  not  deprive the party of his right to appeal to the Privy Council.  Lord Macnaghten remarked at page 372: ’ To deprive a suitor in  a pending  action  of an appeal to a superior  tribunal  which belonged  to him as of right is a very different thing  from regulating procedure’." (1)  [1905] A.C. 369. 505 "That  principle  was reaffirmed by their Lordships  it  the case of Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner(1).  The principle has been followed by a  Full Bench  of the Madras High Court in the case  of  Daivanayaga Reddiar v. Renukamba, Ammal(2).  Dalal J. has taken the same view in the case of Bala Prasad v. Shyam Behari Lal(3).  " The Full Bench answered the question as follows: " Our answer to the reference is that the right to appeal to the  court  of the District Judge was governed  by  the  law prevailing  at the date of the institution of the suit,  and not  by the law that prevailed at the date of its  decision, or at the date of the filing of the appeal." It  will be noticed that the language of s. 242 (1)  of  the new  Act which came into force before the decree was  passed was  not regarded as containing anything which expressly  or by necessary intendment took away the right of appeal  which vested in the parties on the date of the institution of  the suit on the mere ground that the decree had been made  after the  new  amendment  came into  force.   This  case  clearly establishes that the right of appeal vests in the parties at the  date of the suit and is governed by the law  prevailing at that time and the date of the decree or of the filing  Of the appeal does not affect this right unless some subsequent enactment  takes away this right expressly or  by  necessary intendment.   It also establishes that the wide language  of s. 242(1) of the new Act, namely "An appeal shall lie to the District   Judge   from   the   decree   of   an   Assistant Collector........  could  not be construed as  covering  the decree  passed  after  the date of the new -Act  in  a  suit instituted before its date. A  Full Bench of the Lahore High Court adopted  and  applied the  Privy Council decision in the case of Kirpa  Singh,  v. Ajaipal  Singh and others (4).  It was regarded  as  settled that the right of appeal was not a mere matter of  procedure but  was a vested’ right which inhered in a party  from  the commencement  of the action in the court of  first  instance and that such right (1)  [1927] I.L.R. 9 Lah. 284. (2)  [1927] I.L.R. 50 Mad. 857. (3)  [1928] 26 A.L.J. 406. (4)  [1928] I.L.R. 10 Lah. 165 (F.B.). 506 could not be taken away except by an express provision or by necessary implication. The  decision of a Special Bench of the Calcutta High  Court in Sadar Ali v. Dalimuddin (1) is very instructive.  There a suit  was filed in the munsiff’s court at Alipur on  October 7,  1920, for a declaration that the defendant had no  right

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to  use  a certain pathway and for  a  permanent  injunction against  the defendant.  On July 17, 1924, the  trial  court dismissed the suit.  On July 17, 1926, the subordinate judge dismissed  the plaintiff’s appeal.  On October 4, 1926,  the plaintiff filed a second appeal in the High Court.  At  that time el. 15 of the Letters Patent permitted a further appeal to the High Court from the judgment of a single judge of the High  Court, except in certain cases which are not  material for  our  present purpose, without any leave of  the  single judge.   During the pendency of the second appeal cl. 15  of the  Letters Patent was amended and the amendment came  into force  on  January  14, 1928.  The  amended  Letters  Patent imposed  a condition that a further appeal would lie only  " where  the judge who passed the judgment declares  that  the case  is a fit one for appeal." It is well-known  that  this amendment was made in order to reduce the number of  Letters Patent Appeals from the judgments of single judges which had assumed alarming proportions in every High Court.  After the Letters Patent were amended the second appeal was  dismissed by  the single judge on April 4, 1928.  The  learned  single judge  declined  to grant leave under  the  amended  Letters Patent.   On 30, 1928, the appellant filed an appeal on  the strength of el. 15 of the Letters Patent as it stood  before the   amendment  and  obtained  a  rule  calling  upon   the respondent  to  show  cause why his  appeal  should  not  be accepted  and  registered without the leave  of  the  single judge.  The contention of the appellant was that the amended clause  could  not be applied to his appeal, for  to  do  so would  be  to apply, it retrospectively and to  impair  and, indeed,  to  defeat  his substantive  right  which  was  in’ existence  prior  to  the  date  of  the  amendment:.    The appellant claimed that on October 7, 1920, when (1)  (1929) I.L.R. 56 Cal. 512. 507 the  suit  was  filed,  he had vested in  him  by  the  then existing law, i.e., cl. 15 of the Letters Patent as it  then stood,  a substantive right of appeal from the  decision  of the single judge and that an intention to interfere with it, to clog it with a new condition, or to impair or imperil it, could  not be presumed, unless it was clearly manifested  by express words or necessary intendment.  Reliance was  placed on the judgment of Garth C.J. in Runjit Singh’s case (1) and on  other Indian decisions to the effect that the  suit  and all appeals from the decree made therein were to be regarded as  one legal proceeding on the principle stated by West  J. in  Chinto Joshi v. Krishnaji Narayan (2) namely  "that  the legal  pursuit of a remedy, suit, appeal and second  appeal, are really but steps in a series of proceediros connected by an intrinsic unity".  Rankin C.J. delivering the judgment of the  Special Bench consisting of five learned judges of  the Calcutta High Court, adverted to the difficulty in supposing " that the amendment made by the Letters Patent, which  came into  force  in January last, was made with any  other  view than  to  obviate unreasonable,  or  unreasonably  prolonged litigation : or to suppose that the date of the suit has any rational  bearing upon that object or as distinguishing  one case  from another for this purpose." He was conscious  that it might be " thought difficult to arrive at an opinion that the  reform introduced is reasonable and necessary but  that it should in effect be postponed for years." He put the onus on the appellant by saying that the 66 whole weight of these considerations  has to be borne by the applicant’s  argument that  the Letters Patent as they stood on the  7th  October, 1920,  conferred upon him at that date an  existing  right." ’.In  spite  of  these  difficulties  the  Full  Bench   was

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constrained  to come to the decision that the applicant  had discharged that onus., At page 518 the learned Chief Justice observed: "Now the reasoning of the Judicial Committee in the Colonial Sugar Refining Company’s case (3) is a Conclusive authority, to show that rights of appeal are not matters of  procedure; and that the right to enter the (1)  (1878) I.L.R. 3 Cal. 662 at page 665. (2)  (1879) I.L.R. 3 Bom. 214 at page 216. (3) [1905] A.C. 369. 508 superior  court is, for the present purpose deemed to  arise to  a  litigant before any decision has been  given  by  the inferior  court.  If the latter proposition be  accepted,  I can  see  no  intermediate  point at  which  to  resist  the conclusion  that. the right arises at the date of the  suit. It does not arise as regards Court B alone, when the suit is instituted in Court A and as regards Court C when the  first appeal is lodged before Court B. A " present right of Appear "  (cf.  section 154 of the Code of Civil  Procedure)  is  a different matter.  The principle must, I think, involve that an admixture of different systems is not to be applied to  a single case.  It is quite true that the suitor cannot  enter Court  C without going through Court B, but neither  can  he enter  Court  B till Court A has given  its  decision.   The right  must be a right to take the matter to Court C in  due course of the existing law." Further  down  the  Special.   Bench  posed  before  them  a question  :  "Whether  it  is  any  necessary  part  of  the intendment  of the Letters Patent that they  should  operate upon  appeals  arising out of suits instituted  before  14th January, 1928, when such appeals were heard after that  date ?"  In spite of the wide language of the amended cl.  15  of the  Letters Patent, namely, that an appeal shall  lie  from the judgment of single judge only where the judge who passed the  judgment  declared  that the case was  a  fit  one  for appeal, the Special Bench found nothing in that language  to indicate that it applied to a decree passed after the amend- ment came into force or that it took away the vested  right. The Special Bench after saying that_"As there is-nothing  in the  language  of  the  Letters  Patent  to  evidence   this intention,  we must enquire whether it is manifest from  the subject-matter"-went on to deal with the subject-matter  and observed: " Now in this case, I cannot say that it appears to me  that there  is very much material upon which to base  a  definite conclusion  that  the intention was to bring  pending  suits under the new system.  The long postponement of a  desirable reform  may have been thought wise, and it would  hardly  be correct  for a court of law to proceed merely upon  its  own opinion 509 as  to the degree of respect to which the right of  a  third appeal  is entitled.  In this aspect the present  case  may, reasonably be thought less strong than the case of Bourke v. Nutt  (1894)  1  Q.B.  725, where  a  similar  argument  was ultimately  negatived.  If bankrupts may continue to  become members  of school boards, I cannot say that  litigants  may not  continue  to have a third appeal  unless  it  otherwise appears that this construction of the Letters Patent is  not reasonably  possible.   Far  be it from  me  to  distinguish between  such  forms of excess or to divide such  claims  to toleration." In re Vasudeva Samiar (1) was also concerned with the effect of the amended el. 15 of the Letters Patent on a preexisting

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right  of  appeal.  In that case the suit was filed  in  the District Munsif’s Court on July 30, 1919.  The second appeal was  filed in the High Court on July 15, 1924.  The  amended el.  15 of the Letters Patent came into force in  Madras  on January  31, 1928.  On February 9, 1929, the  second  appeal was  disposed of.  An appeal was filed without any leave  of the  learned  single  judge.  The  High  Court  office  took objection to the maintainability of the appeal by reason  of the  amended Letters Patent and the case was  placed  before the Full Bench consisting of five judges under the orders of Coutts Trotter C. J. for the determination of the  question. Coutts Trotter C. J. entirely concurred in the reasoning  of Rankin  C. J. and had no answer to it.  He adverted  to  the argument that the result would be that cl. 15 of the amended Letters  Patent will remain a dead letter for many years  to come and repelled it in the following sentence: " The result is regrettable, because it makes the amended Letters Patent, which were doubtless brought into being to relieve the heavy burden  of  Second  Appeals, which in this  Court  have  now reached  the  startling  figure of 5,000  cases,  unable  to effect any substantial relief to us for five years." For the moment  we pass over his observation in connection with  the case of Canada Cement Co. v. East Montreal (Town of) (2) and will  refer  to  it later on.  The  point  for  our  present purpose is that the Full Bench did not (1) (1928) I.L.R. 52 Mad. 361. (2) [1922] 1 A.C. 249. 510 think  that  the  opinion  expressed in  that  case  was  in conflict  with  the  earlier  decision  in  Colonial  Sugar Refining   Co.   Ltd.   v.   Irving   (supra),   which   was authoritatively adopted and reconfirmed in the later case of Delhi  Cloth  and  General  Mills Co.  Ltd.  v.  Income  Tax Commissioner,  Delhi  (supra).  The  learned  Chief  Justice concluded his judgment with the following words: "  We  must therefore hold, however  reluctantly,  that  the institution of the suit carries with it the implication that all  appeals then in force are preserved to it  through  the rest  of  its  career, unless  the  legislation  has  either abolished  the  Court  to which an appeal then  lay  or  has expressly  -or  by  necessary intendment  given  the  Act  a retrospective effect.  We agree with the Calcutta High Court that the words of the amended Letters Patent do not admit of such an interpretation." The  principle  laid down by the Privy Council  in  Colonial Sugar  Refining Co. Ltd. v. Irving (supra) was applied by  a Full  Bench  of  the Nagpur High  Court  in  Radhakishan  v. Shridhar (1). The  doctrine  laid down by the Privy Council  ill  Colonial Sugar  Refining  Co. Ltd. v. Irving (supra)  has  also  been applied by the courts in India to cases where the subsequent legislation did not take away the entire right of appeal but imposed certain onerous conditions on such right.  The  case of  Nagendra Nath Bose v. Mon Mohan Singh (2) is a  case  of that  type.  In that case the plaintiff instituted the  suit for rent valued at Rs. 1,306-15-0 and obtained a decree.  In execution  of that decree the defaulting tenure was sold  on November 20, 1928, for Rs. 1,600.  On December 19, 1928,  an application was made under 0. 21, r. 90 of the Code of Civil Procedure  by  the petitioner who wag one  of  the  judgment debtors for setting aside the sale.  That application having been dismissed for default of his appearance, the petitioner preferred  an  appeal to the District  Judge,  Hooghly,  who refused  to admit the appeal on the ground that the  amount, recoverable in

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(i)  I.L.R. 1950 Nag. 532 (F.B.). (2)  34 C.W.N. 1009; A.I.R. (1931) Cal. 100. 511 execution  of the decree had not been deposited as  required by  the proviso to s. 174 (c) of the Bengal Tenancy  Act  as amended  by an amending Act of 1928.  The contention of  the petitioner  was that the amended provision, which came  into force  on February 21, 1929, could not affect his  right  of appeal from the decision on an application made on  December 19, 1928, for setting aside the sale.  Mitter J. said: "We  think the contention of the petitioner is  well-founded and  must prevail.  That a right of appeal is a  substantive right  cannot now be seriously disputed.  It is not  a  mere matter  of procedure.  Prior to the amendment of 1928  there was an appeal against an order refusing to set aside a  sale (for  that is the effect also where the application  to  set aside   the  sale  is  dismissed  for  default)  under   the provisions  of  Order  43, rule (1), of the  Code  of  Civil Procedure.  That right was unhampered by any restriction  of the kind now imposed by section 174 (5), proviso.  The Court was  bound to admit the appeal whether  appellant  deposited the  amount recoverable in execution of the decree  or  not. By  requiring such deposit as a condition precedent  to  the admission  of the appeal, a new restriction has been put  on the right of appeal, the admission of which is now hedged in with  a condition.  There can be no doubt that the right  of appeal  has  been affected by the new provision and  in  the absence of an express enactment this amendment cannot  apply to  proceedings pending at the date when the new  amendment, came into force.  It is true that the appeal was filed after the   Act  came  into  force,  but  that   circumstance   is immaterial-for  the date to be looked into for this  purpose is  the  date of the original  proceeding  which  eventually culminated in the appeal." That  decision  was  approved by a Bench of  this  Court  in Hoosein  Kasam  Dada  (India) Ltd. v. The  State  of  Madhya Pradesh  (1).   In  that  case on  November  28,  1947,  the appellant  submitted a return to the Sales Tax Officer.   At that time s. 22(1) of the Central Provinces and Berar  Sales Tax Act, 1947 provided (1)  [1953] S.C.R. 987. 66 512 that  no  appeal against the order of assessment  should  be entertained  unless it was shown that such amount of tax  as the appellant might admit to be due from him had been  paid. Pending the assessment on the appellant’s return the Act was amended  on  November  25, 1949, so as to  provide  that  no appeal would be admitted unless such appeal was  accompanied by satisfactory proof of payment of tax in respect of  which the  appeal had been preferred.  The Assistant  Commissioner to  whom  the return was transferred for  disposal  made  an assessment  on  April 8, 1950.  The appellant  preferred  an appeal on May 10, 1950, without depositing the amount of tax in  respect of which he had appealed.  The Board of  Revenue was of opinion that s. 22 (1) as amended applied to the case as  the assessment was made, and the appeal  was  preferred, after  the  amendment  came into  force,  and  rejected  the appeal.  The Bench of this Court held, following the leading Privy  Council  decision  and some of  the  other  decisions referred to above, that the right of appeal was a matter  of substantive right and not merely a matter of procedure, that this  right  became vested in a party when  the  proceedings were first initiated and that such right could not be  taken away  except by express enactment or  necessary  intendment.

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Accordingly  it  was held that the appellant  had  a  vested right  of  appeal  when  the  assessment  proceedings   were initiated in 1947, that his right of appeal was governed  by the  law as it existed on that date, that the  amendment  of 1950 could not be regarded as a mere alteration in procedure or  an  alteration regulating the exercise of the  right  of appeal,  if it whittled down the right itself, and  that  it had  no retrospective effect as the amended Act of 1950  did not   expressly   or  by  necessary   intendment   give   it restrospective  effect and the appeal could not,  therefore, be  rejected for non-payment of tax in respect of which  the appeal was preferred. The  case  of  Ganpat Rai Hiralal  v.  Aggarwal  Chamber  of Commerce  Ltd.  (1), is also instructive.   There  were  two winding up proceedings regarding two companies, (1)  [1953] S.C.R. 752, 513 namely,  the Marwari Chamber of Commerce Ltd.  and  Aggarwal Chamber  of Commerce Ltd.  The Official  Liquidator  settled the list of contributories in both cases.  On June 4,  1946, payment  order for Rs. 24,005-7-3 was made by the  court  in the  case of Marwari Chamber of Commerce Ltd.  At that  time Patiala  States  Judicature  Firman of 1999  was  in  force. Under  s.  44 of that Firman a certificate  of  fitness  was required  for  an appeal from a judgment of a  single  judge only if the judgment, decree or order sought to be  appealed from   was   made  in  the  exercise  of   Civil   Appellate Jurisdiction.   After the payment order had been made  Pepsu Ordinance  (X of 2005) was promulgated.  Section 52  of  the Ordinance  required a certificate of fitness for  appeal  in all  cases,  including the winding up  cases.   On  February 2,1950,  an application was made in respect of  the  Marwari Chamber of Commerce Ltd. under s. 152 of the Civil Procedure Code for amendment of the payment order by substituting  Rs. 21,805-7-3 for Rs. 24,005-7-3.  On March 16, 1950, the above application was dismissed by the judge, who refused to grant the  certificate of fitness.  An appeal against  this  order refusing  to amend the payment order was filed  without  any certificate.  On May 1, 1950, that appeal was dismissed  for want of the necessary certificate.  An appeal was brought to this  Court on certificate of fitness granted by  the  Pepsu High  Court.   In the case of Aggarwal Chamber  of  Commerce Ltd. the payment order was made on January 18, 1949, by  the Liquidation  Judge.   On  February 19,1949,  an  appeal  was preferred  to  the  High Court.  At that  time  the  Patiala States  Judicature Firman 1999 was in force.  Then came  the Pepsu  Ordinance  (X  of  2005).   The  High  Court   having dismissed  the  appeal a further appeal was  filed  in  this Court  on certificate of fitness granted by the High  Court. The  question for decision was whether the appellant  had  a vested right of appeal to this Court in either of two cases. This  Court  dismissed  the appeal in  connection  with  The Marwari Chamber of Commerce Ltd., not on the ground that the appellant  had no vested right of appeal but, on the  ground that the application for amendment, which was filed 514 on  February 2, 1950, was an independent proceeding  and  as that proceeding was instituted after the Pepsu Ordinance  (x of  2005), came into operation, the vested right  of  appeal arising  out  of  that  proceeding  was  governed  by   that Ordinance and a certificate was necessary.  It was  observed that  there was no warrant for the view that  the  amendment petition  was  a  continuation of  the  suit  or  proceeding thereunder,  that  it was in the nature  of  an  independent proceeding   though  connected  with  the  order  of   which

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amendment  ’was  sought  and  that  such  a  proceeding  was governed by the law prevailing on its date, which admittedly was  Pepsu Ordinance (X of 2005), which provided,  under  s. 52,  for  a certificate.  The court,  however,  allowed  the appeal  in the matter of Aggarwal Chamber of  Commerce  Ltd. following  the principle laid down in the case  of  Colonial Sugar Refining Co. Ltd. v. Irving (supra), for in that  case there was no new proceeding and the right of appeal  arising out  of  the proceeding resulting in the payment  order  had vested  at the commencement of those proceedings  which  was prior to the date when the Pepsu Ordinance (X of 2005)  came into force. Similar  principle  has also been adopted  in  cases,  where court  fees  were increased by subsequent amendment  of  the Court Fees Act.  Reference may be made to the cases of R. M. Seshadri  v.  Province  Madras (1); In  re  Reference  under section 5 of Court Fees Act(2); Sawaldas Madhavdas v..  Arti Cotton  Mills Ltd. (3).  There are certain  other  decisions which also adopted the same principle but reference will  be made  to  them later on in connection with the  question  of construction of Art. 133 of the Constitution. From  the  decisions cited above  the  following  principles clearly emerge: (i)  That  the legal pursuit of a remedy, suit,  appeal  and second   appeal  are  really  but  steps  in  a  series   of proceedings  all connected by an intrinsic unity and are  to be regarded as one legal proceeding. (ii) The  right of appeal is not a mere matter of  procedure but is a substantive right. (1)  A.I.R. 1954 Mad. 543. (2)  I.L.R. 1955 Bom. 530. (3)  A.I.R. 1955 Bom. 332; 57 Bom.  L.R. 304. 515 (iii)     The  institution of the suit carries with  it  the implication  that  all rights of appeal then  in  force  are preserved,  to  the  parties thereto till the  rest  of  the career of the suit. (iv) The right of appeal is a vested right and such a  right to  enter  the superior court accrues to  the  litigant  and exists  as  on  and  from the date  the  lis  commences  and although  it  may  be actually exercised  when  the  adverse judgment  is pronounced such right is to be governed by  the law prevailing at the date of the institution of the suit or proceeding  and not by the law that prevails at the date  of its decision or at the date of the filing of the appeal. (v)  This vested right of appeal can be taken away only by a subsequent  enactment,  if it so provides  expressly  or  by necessary intendment and not otherwise. In  the case before us the suit was instituted on April  22, 1949,  and  on the principle established  by  the  decisions referred to above the right of appeal vested in the  parties thereto at that date and is to be governed by the law as  it prevailed  on  that date, that is to say, on that  date  the parties  acquired  the right, if unsuccessful, to go  up  in appeal  from  the sub-court to the High Court and  from  the High  Court  to the Federal Court. under the  Federal  Court (Enlargement of Jurisdiction) Act, 1947 read with cl. 39  of the Letters Patent and ss. 109 and 110 of the Code of  Civil Procedure  provided. the conditions thereof were  satisfied. The question for our consideration is whether that right has been taken away expressly or. by necessary intendment by any subsequent  enactment.  The respondents to  the  application maintain that it has been so taken away by the provisions of our Constitution. In construing the articles of the Constitution we must  bear

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in mind certain cardinal rules of construction.  It has been said  in  Hough  v.  Windus  (1),that  "statutes  should  be interpreted,  if possible, so as to respect  vested  right." The  golden rule of construction is that, in the absence  of anything  in  the  enactment to ,show that  it  is  to  have retrospective operation, it cannot (1)  [1884]12 Q.B.D. 224 at 237. 516 be  so construed as to have the effect of altering  the  law applicable to a claim in litigation at the time when the Act was passed (1).  The following observation of Rankin C.J. in Sadar Ali v. Dalimuddin (supra) at page 520 is also apposite and helpful: "Unless the contrary can be shown the provision which  takes away the jurisdiction is itself subject to  the implied  saving of the litigant’s right." In Janardan  Reddy v.  The State (2) Kania C.J. in delivering the  judgment  of the  Court  observed  that  our  Constitution  is  generally speaking  prospective  in its operation and is not  to  have retroactive   operation  in  the  absence  of  any   express provision to that effect.  The same principle was reiterated in  Keshavan  Madhava Menon v. The State of Bombay  (3)  and finally  in Dajisaheb Mane and Others v. Shankar Rao  Vithal Rao  (4) to which reference will be made in  greater  detail hereafter. In the next place we must take into account the  surrounding circumstances that existed at the time when our Constitution makers  framed the Constitution and for which provision  had to be made by them.  In construing the Articles relating  to the  appellate  jurisdiction  of this Court it  is  well  to remember  the several categories of persons who were at  the date of the Constitution, interested in the right of  appeal from judgments, decrees or final orders of a High Court to a superior  court  in one way or another.   There  were  seven categories of persons so interested, namely- (1)  Those who were aggrieved by a judgment of a High  Court in what was British India passed before the commencement  of the Constitution in a civil proceeding arising out of a suit or  proceeding instituted before the Constitution  and  who. had  preferred an appeal from such judgment to  the  Federal Court or whose appeal from such judgment to the Privy  Coun- cil  had  stood transferred to the Federal Court  and  whose appeal  was pending in such court immediately prior  to  the commencement of the Constitution; (1)  Leeds  and County Bank Ltd. v. Walker (1883) 11  Q.B.D. 84 at page 91 Moon v. Durden (1848) 2 Ex. 22; 76 R.R. 479 at P. 495. (2)  [1950] S.C.R. 940 at pp. 946-947. (3)  [1951] S.C.R. 228. (4)  [1955] 2 S.C.R. 872 at pp. 876-877. 517 (ii)Those who were aggrieved by a judgment passed by such  a High  Court before the commencement of the  Constitution  in such  civil proceeding arising out of a suit  or  proceeding instituted.in  the  court  of  first  instance  before   the Constitution, but in which only, an application for leave to appeal  to  the  Federal  Court  had  been  made  and   such application was pending before the Federal Court immediately before  the commencement of the Constitution but  no  appeal had  actually been filed or was pending before  the  Federal Court at that date; (iii)Those who were aggrieved by a judgment passed by such a High  Court  before the Constitution in a  civil  proceeding arising out of a suit or proceeding instituted in the  court of first instance before the Constitution and in respect  of which  no  application for leave to appeal  to  the  Federal

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Court had been made but the time for making such application had not expired at the commencement of the Constitution; (iv)Those who may be aggrieved by a judgment passed by  such a  High Court after the date of the Constitution in a  civil proceeding arising out of a suit or proceeding filed in  the court of first instance before the Constitution; (v)  Those who were aggrieved by a judgment passed by a High Court  in a Princely State before the Constitution  and  who had  appealed  from such judgement to the Privy  Council  of that  State  which’ was pending at the commencement  of  the Constitution; (vi)Those  who were aggrieved by such a judgment of  a  High Court of a Princely State and who had not actually filed  an appeal  but  whose application for leave to  appeal  to  the Privy  Council of that State was pending before  such  Privy Council   immediately   before  the  commencement   of   the Constitution; and lastly (vii)Those  who may be aggrieved by the judgment of  a  High Court   in   the  territory  of  India  passed   after   the commencement  of  the  Constitution in  a  civil  proceeding arising  out  of a suit or proceeding filed also  after  the Constitution would come into force. The Constitution makers knew about these several  categories of persons and further that, according to a 518 series  of  decisions  of the highest courts,  it  had  been firmly  established that the right of appeal to the  Federal Court vested in a litigant at the date of the institution of the  suit or proceeding in the court of first  instance  and not on the date of the passing of the judgment by the  trial court  or the High Court or of the filing of the  appeal  in the  High  Court or the Federal Court.  In other  words  the Constitution  makers  knew that the right of appeal  to  the Federal  Court had already vested in persons falling  within categories (i) to (iv) at the date of the institution in the court  of first instance of the suit or proceeding to  which they  were parties, no matter when the judgment of the  High Court was passed or was likely to be passed in future.   The Constitution  makers  also knew that this vested  right  was governed  by  cl.  39 of the Letters Patent  read  with  the Federal  Court (Enlargement of Jurisdiction) Act,  1947  and the  Abolition of Privy Council Jurisdiction  Act,’1949  and ss.  109  and  110  of the Code  of  Civil  Procedure.   The Constitution makers were also aware of the rights of persons who  fell  within  categories  (v)  and  (vi).   With   full knowledge of all. these rights the Constitution makers  made such  provision as they thought fit.  The  question  is,-has the  Constitution,  expressly or  by  necessary  intendment, taken  away  this vested right of appeal from any  of  these categories  of  persons?   This  leads  us  to  examine  the relevant  provisions  of  the Constitution  and  other  laws bearing on the question. Article   395  of  the  Constitution  repealed  the   Indian Independence Act, 1947 and the Government of India Act, 1935 together  with all enactments amending or supplementing  the latter Act, but expressly kept alive the Abolition of  Privy Council   Jurisdiction  Act,  1949.   The  repeal   of   the Government  of  India  Act, 1935  necessarily  involved  the abolition  of  the Federal Court which was the  creature  of that  Act.   In its place the Constitution by Art.  124  has established  this Court-, which by Art. 129 is made a  court of record with all the powers of such a court, including the power to punish for contempt of itself.  Article 131 confers original jurisdiction on this Court  in certain disputes 519

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therein mentioned.  Appellate jurisdiction of this Court  is dealt with in Art. 132 and the following Article Article 132 confers jurisdiction on this Court to entertain appeals from judgments,  decrees or final orders of a High Court  in  the territory  of India, whether in civil or criminal  or  other proceeding,  if  the  High Court  certifies  that  the  case involves   a   substantial  question  of  law  as   to   the interpretation of the Constitution.  The relevant portion of Art. 133 runs as follows: 133(1).   An appeal shall lie to the Supreme Court from  any judgment,  decree or final order in a civil proceeding of  a High  Court  in  the territory of India in  the  High  Court certifies- (a)  that the amount or value of the subject. matter of  the dispute in the court of first instance and still in  dispute on appeal was and is not less than twenty thousand rupees or such  other  sum  as  may be specified  in  that  behalf  by Parliament by law; or (b)  that  the  judgment,  decree or  final  order  involved directly  or  indirectly some claim or  question  respecting property of the like amount or value; or (c)  that  the case is a fit one for appeal to  the  Supreme Court;  and,  where  the judgment,  decree  or  final  order appealed from affirms the decision of the court  immediately below in any case other than a case referred to in subclause (c),  if  the High Court further certifies that  the  appeal involves some substantial question of law. Article  134 (1) (c) authorises this Court to  entertain  an appeal  from  any  judgment, final order or  sentence  in  a criminal  proceeding  of a High Court in  the  territory  of India,  if the High Court issues the requisite  certificate. Article 135 is in the terms following: 135.      Until  Parliament by law otherwise  provides,  the Supreme  Court shall also have jurisdiction and powers  with respect to any matter to which the provisions of article 133 or  article 134 do not apply if jurisdiction and  powers  in relation  to  that matter were exercisable  by  the  Federal Court   immediately   before  the   commencement   of   this Constitution under any existing law. 67 520 Article 136 authorises this Court in its discretion to  rant special  leave  to  appeal in  certain  cases.   Article  37 confers  power  of review upon this Court to review  as  own judgments.   Provision  is made for the enlargement  of  the jurisdiction or conferment of additional or ancillary powers under  Arts.  138 to 140.  Article 372 of  the  Constitution provides  for the continuance in force of the existing  laws and for their adaptation.  The relevant portions of Art. 372 are as follows: 372.(1)  Notwithstanding the repeal by this Constitution  of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in  force in   the   territory  of  India   immediately   before   the commencement  of this Constitution shall continue  in  force therein until altered or repealed or amended by a  competent Legislature or other competent authority. (2)For the purpose of bringing the provisions of any law  in force  in  the  territory  of India  into  accord  with  the provisions of this Constitution, the President may by  order make such adaptations and modifications of such law, whether by  way  of  repeal or amendment, as  may  be  necessary  or expedient,  and  provide that the law shall,  as  from  such -date as may be specified in the order, have effect  subject to  the adaptations and modifications so made, and any  such

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adaptation  or modification shall not be questioned  in  any court of law. In  exercise of the powers conferred on him by Art.  372(2), the  President  promulgated the Adaptation  of  Laws  Order, 1950,   which  came  into  force  simultaneously  with   the Constitution  on  January 26, 1950.  In the  first  schedule dealing  with the Central Acts are set out  the  adaptations made in the Code of Civil Procedure.  It is to be noted that ss.  109  and 110 of the Code of Civil  Procedure  were  not deleted altogether but were modified only.  The sections  as adapted run as follows: 109.  Subject to the provisions in Chapter IV of Part  V  of the  Constitution and such rules as may, from time to  time, be made by the Supreme Court regarding 521 appeals  from  the  Courts of India, and  to  the  provision hereinafter  contained, an appeal shall lie to  the  Supreme Court- (a)  from  any  judgment, decree or final  order  passed  on appeal  by  a  High Court or by any  other  Court  of  final appellate jurisdiction; (b)  from  any judgment, decree or final  order passed by  a High Court in the exercise of original civil jurisdiction  ; and (c)from  any  judgment, decree or order, when the  case,  as hereinafter provided is certifide to be a fit one for appeal to the supreme Court. 110.      In each of the cases mentioned in clauses (a) and (b)  , of s. 109, the amount or value of the  subject-matter of  the suit in the Court of first instance must  be  twenty thousand  rupees or upwards, and the amount or value of  the subject-matter  in  dispute on appeal to the  Supreme  Court must be the same sum on upwards, or  the  judgment,  decree  or  final  order  must  involve, directly  or  indirectly,  some  claim  or  question  to  or respecting  property of like amount or value, and where  the Judgment.  decree or final order appealed from  affirms  the decision  of the Court immediately below the  Court  passing such  judgment,  decree  or final  order,  the  appeal  must involve some substantial question of law. This  adaptation, however, was subject to the provisions  of cl. 20 of the Order itself, which runs as follows :- 20.  Nothing  in  this  Order  shall  affect  the   previous operation  of, or anything duly done or suffered under,  any existing  law,  or  any  right,  privilege,  obligation   or liability  already acquired, accrued, or incurred under  any such law, or any penalty, forfeiture or punishment  incurred ill respect of an offence already committed against any such law. The result of the foregoing provisions ’may here be  shortly summarised.   The  Constitution  by Art.  395  repealed  the Government  of India Act and thereby abolished  the  Federal Court.  It, however, continued 522 he Abolition of Privy Council Jurisdiction Act, 1949,  which directed  that  the Federal Court in addition to  he  powers conferred  on  it  by  the  Federal  Court  (Enlargenent  of Jurisdiction) Act, 1947, would have all the appelate  powers exercised  by the Privy Council.  Though the  Federal  Court (Enlargement  of  Jurisdiction)  Act,  1947,  being  an  Act amending or supplementing the Government of India Act, 1935, was repealed, yet notwithstanding such repeal the provisions of  the  Act  were continued in force  under  Art.  372  (1) subject  to the other provisions of the  Constitution.   The Adaptation  order  modified ss. 109 and 110 of the  Code  of

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Civil  Procedure, inter alia, by raising the valuation  from Rs.  10,000  to Rs. 20,000, but that provision did  not,  by virtue  of  clause  20  of  the  Order,  affect  any  right, privilege, obligation or liability already acquired, accrued or incurred under any existing law.  The true implication of the  above  provisions  is that the  pre-existing  right  of appeal  to the Federal Court continues to exist and the  old law,  which created that right of appeal also  continues  to exist  to  support the continuation of that  right  and  the Federal  Court  having been abolished the Supreme  Court  is substituted  for the Federal Court as the machinery for  the purpose  of giving effect to the exercise of that  right  of appeal.   As the old law continues to exist for the  purpose of  supporting the pre-existing right of appeal the old  law must  govern the exercise and enforcement of that  right  of appeal.  The continuance of the old law, however, is subject to the other provisions of the Constitution. Turning to the Constitution it will appear that Art. 374 (2) provides   for  the  removal  of  all  suits,  appeals   and proceedings, civil or criminal, pending in the Federal Court at  the commencement of this Constitution to this Court  and invests  this Court with jurisdiction to hear and  determine the  same.   This saves the vested right of  appeal  of  the persons  falling  within categories (i) and  (ii)  mentioned above.  It is conceded that Art. 135 saves the vested  right of  appeal of persons falling within category  (iii),  i.e., persons who are dissatisfied with the judgments passed by  a High 523 Court  in what was British India before the commencement  of the Constitution, in civil proceedings arising out of  suits or  proceedings  instituted  also before that  date  and  in respect of which no application for leave to appeal had been made  before the Federal Court prior to the commencement  of the   Constitution.    Article   374   (4)   abolishes   the jurisdiction of the authority which functioned as the  Privy Council in the Princely States which under the  Constitution became  Part B States and provided for the transfer  of  all appeals and other proceedings pending before such  authority at the commencement of the Constitution to the Supreme Court to be disposed of by it.  This saved the right of appeal  of persons  falling  within categories (v) and  (vi).   Persons falling  within category (vii) may clearly avail  themselves of Art: 133.  The only question that remains is whether  the right  of  appeal from the judgment of a High  Court  passed after  the  date of the Constitution in a  civil  proceeding arising  out of a suit or proceeding instituted  before  the Constitution  which  had vested in  persons  falling  within category  (iv) is to, be governed by Art. 133 or by the  old law under Art. 135. In  Radha  Krishna  v. Shridhar (supra),  Nandalal  v.  Hira Lal(1), Mahant Sidha Kamal Nayan v. Bira Naik(2),  Ramaswami v. Ramanathan(3), Daji Saheb v. Shankarrao(4), Mt.  Murtu v. Paras  Ram (5) and Bhagwantrao v. Viswasrao(6), it has  been held that Art. 133 of the Constitution is not  retrospective and  that  the  vested right of appeal is  governed  by  the conditions  laid down in the Code of Civil  Procedure  which were in force previous to the adaptation there. of and  this Court was by Art. 135 substituted for the Federal Court, and invested  with jurisdiction to entertain the  appeals  under that article.  In Daji Saheb v. Shankarrao (supra) the suit, the  value of which was between Rs. 11,000 and  Rs.  13,000, was  dismissed by the trial court on December 20, 1946,  and the  High Court reversed the decree of the trial  court  and passed the decree in favour of the plaintiff on November 8,

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(1)  I.L.R. 1950 Nag. 830 (2)  I.L.R. 1950 Cut. 663. (3)  I.L.R. 1951 Mad. 125. (4)  I.L.R. 1952 Bom. 906. (5)  A.I.R. 1952 Him. 14. (6)  I.L.R. 1953 Nag. 822. 524 1949.  The Bombay High Court having granted a certificate of fitness,  the  case came up before this Court  and  will  be found  reported as Daji Saheb Mane v. Shankarrao (1).  On  a question of the maintainability of the appeal being  raised, this  Court hold that Art. 133 did not apply because (i)  it related expressly to appeals against any judgment, decree or final  order  in a-civil proceeding of a High Court  in  the territory of India and (ii) on the date of the decree of the High Court the defendant had a vested right of appeal to the Federal  Court  and on January 25, 1950,  a  certificate  of fitness  to  appeal was bound to be granted.  It  was.  held that the appeal to the Supreme Court was competent by virtue of  the  provisions of Art. 135 of the Constitution  as  the jurisdiction and powers in relation to the matter in dispute were exercisable by the Federal Court immediately before the commencement  of  the Constitution under  an  existing  law, inasmuch  as  the Federal Court had jurisdiction  under  the Code of Civil Procedure to entertain and hear appeals.  from a  decree of a High Court which reversed the  lower  Court’s decree  concerning  property of the value of Rs.  10,000  or upwards.   As regards the argument urged by  the  respondent that Art. 133 applied,this Court observed:- " if we accede to, the argument urged by the respondent,  we shall be shutting out altogether a large number of  appeals, where  the parties had an automatic right to go  before  the Federal Court before the Constitution and which we must hold was  taken away from them for no fault of their own,  merely because  the Supreme Court came into existence in  place  of the Federal Court.  An interpretation or construction of the provisions  of the Constitution which would lead to  such  a result should be avoided, unless inevitable." On the other hand there are two decisions of the Madras High Court  which  run  counter  to  the  decisions  hereinbefore referred  to and which may now be considered.  In  Ramaswami Chettiar  V. The Official Receiver (2), a Division Bench  of the  Madras High Court held that the expression "  matter  " under Art. 135 (1) [1935] 2 S.C.R. 872. (2) A.I.R. 1951 Mad. 1951. 525 excluded  civil  and  criminal  proceedings  and  should  be understood  as meaning a matter which is neither  civil  nor criminal  and,  therefore, by applying the  maxim  expressio unius  est exclusio alterius, the word "matter" in Art.  135 should  be  deemed  to  exclude  both  civil  and   criminal proceedings  and  the hardship imposed on  the  litigant  by adopting  this construction was mitigated by  conferment  of discretionary  power on this Court  to grant  special  leave under  Art. 136.  On this construction litigants,  who  come within  categories  (iii) and (iv) will all have  to  depend upon the discretionary powers of this Court to grant special leave  under Art. 136.  This will be a poor  consolation  to those litigants, for they will have no appeal as a matter of right, which they formerly possessed under the Code of Civil Procedure but will have to seek a favour entirely  dependent on, the discretion of this Court.  We do not think any other High  Court  has  gone  to this  length  and,  indeed,  this decision has been expressly dissented from in Bhagwantrao v.

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Viswasrao  (supra)  and we are not prepared to  accept  that Madras decision as correct. In Veeranna v. China Venkanna (1) it has been held by a Full Bench  of three judges of the Madras High Court that if  the judgment is delivered in a civil proceeding of a High  Court -after  the commencement of the Constitution then no  matter whether the civil proceeding was instituted before or  after the  commencement  of the Constitution,  Art.  133(1)  would apply  directly and if that article applied Art.  135  would not,  for that article would apply only to matters to  which Arts.  133  and 134 did not apply,  and  consequently  there would be no right of appeal from such judgment to this Court if  the  value  of the subject-matter of the  suit  and  the appeal  was not Rs. 20,000 or upwards.  This case  has  been followed  in Prabirendra Mohan v. Berhampore Bank Ltd.  (2), Ram Sahai v. Ram Sewak (3), Tajammul Husain v. Mst.   Qaisar Jahan  Begam (4) and The Indian Trade and General  Insurance Co.  Ltd.  v. Raj Mal Pahar Chand (5).   It  is,  therefore, necessary to (1)  I.L.R. 1953 Mad. 1079. (2)  A.I.R. 1954 Cal. 289. (3)  A.I.R. 1956 All. 321. (4)  A.I.R. 1956 All. 638. (5)  A.I.R. 1956 Punj. 228. 526 examine  in  detail the decision in the  Madras  Full  Bench case. In that case the suit was filed in 1945 in the court of  the subordinate Judge of Kakinada for partition and  possession. The   subordinate   Judge  passed  a   preliminary   decree. Eventually  the High Court reversed the decision  on  August 23,  1951.   The value of the suit was over Rs.  10,000  but below  Rs.  20,000.  The learned  judges  distinguished  the previous cases hereinbefore referred to which were cited  by counsel  in support of the maintainability of the appeal  on the  ground, inter alia, that in those cases  the  judgments appealed  from  were passed by the High  Courts  before  the commencement  of  the Constitution.  It was  fully  conceded that  the  institution  of  a  suit  carried  with  it   the implication  that  all  -appeals  then  in  force  would  be preserved to the parties to the suit throughout the rest  of the career of the suit as was laid down by the Full Bench of five  Judges  of that Court.  But it was  pointed  out  that there  were two exceptions to the application of that  rule, namely, (i) when by competent enactment such right of appeal was  taken  away expressly or impliedly  with  retrospective effect and (ii) when the court to which an appeal then, that is,  at  the  commencement  of  the  suit,  would  lie   was abolished.  Reference was made to the case of Canada  Cement Co. Ltd. v. East Montreal (Town of) (supra) and the  passage from  the judgment of Coutts Trotter C.J. in In re  Vasudeva Samiar  (supra)  was quoted as an excellent summary  of  the effect of that decision.  The conclusion was thus expressed at page 1086: "Now,  the suit in the present case was instituted in  1945. On  that  date  the  final Court of  Appeal  was  the  Privy Council.  Strictly speaking, if any right was vested in  the parties to the suit on the date of its institution, it was a right to finally appeal to the Privy Council.  But from  1st February, 1948, such a right was expressly abolished.  There was  no  doubt  no  abolition  of  a  Court  as  such,   but substantially that was the result.  From that day the  Privy Council ceased to be a Court of Appeal from the Indian  High Courts.  Such right as was vested in the parties to the suit to appeal

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527 to the Privy Council, therefore, came to an end on that day. Instead,  the  parties  may  be said  to  have  obtained  an alternative  right of appeal to the Federal Court  But  what must  not  be  overlooked is that this is  not  because  the parties  had a vested right, but because the  Federal  Court (Enlargement of Jurisdiction) Act specially provided for the substitution of the final appellate forum (vide section 3 of that Act)." Again at page 1087 it was said:- "it follows, therefore, that the utmost that can be said  in favour  of  the petitioner is that  immediately  before  the coming  into  force  of the Constitution  the  existing  law conferred  a right on parties in this case to appeal to  the Federal Court.  When this Court was abolished by the  coming into  force  of the Constitution the question is,  were  any rights substituted for the rights which existed at the  time ? Article 374 (2) specially provides for all suits,  appeals and  proceedings, civil or criminal, pending in the  Federal Court at the commencement of the Constitution.  These  shall stand  removed  to the Supreme Court and the  Supreme  Court shall have jurisdiction to hear and determine the same.  But we  find no provision made as regard proceedings by  way  of appeal or otherwise not pending in the Federal Court at  the commencement of the Constitution which might have been taken in  the Federal Court or in the High Court in respect of  an appeal  to the Federal Court.  There is no indication as  to what  is  to happen to such proceedings which had  not  com- menced by the date of the Constitution." It is quite obvious from the passages quoted above that  the judgment  of this Madras Full Bench proceeds on the  footing that  the vested right of appeal was to go to  a  particular court, that that court having been abolished the old  vested right  had come to an end, that a new court was  established and  a  new right of appeal was given to that court  on  new terms, that no provision had been made for filing appeals to the  new court in cases where appeals could have been  filed to  the  court which ceased to exist  and  that,  therefore, there  was no right to appeal to the new court in  spite  of the doctrine of the vested right.  In other words the Full 68 528 Bench  apparently  thought that this case  fell  within  the second  exception mentioned by them, namely, that the  court to  which the appeal lay at the date of the commencement  of the suit had been abolished and, therefore, the vested right of appeal ceased to exist.  Support for this conclusion  was derived  from the decision in the case of Canada Cement  Co. Ltd. v. East Montreal (Town of) (supra). Now  turning  to the facts of that last  mentioned  Canadian case  we  find  that the judgment of the  Circuit  Court  of Montreal  was  passed  on  January  5,  1921,  against   the appellant.   The  appellant  appealed to  the  King’s  Bench (Appeal  Side) for the Province of Quebec.   The  respondent applied  for dismissal of the appeal on the ground  that  it was  not maintainable.  On April 26, 1921, the King’s  Bench (Appeal  Side) held that no appeal lay and the  judgment  of the  Circuit,  Court  was final.   The  appellant  thereupon appealed  to the Privy Council.  The respondent  applied  to the Privy Council to quash the appeal on the ground that the appeal  to the Privy Council was incompetent.  Three  points were  urged  before the Judicial Committee.  The  first  was that  as the jurisdiction of the Circuit Court  was  derived from  the Cities’ and Towns’ Act, 1909, all right of  appeal must  be  found in that Act and as no right  of  appeal  was

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given by that Act no appeal lay.  This point was rejected by the Judicial Committee on the ground that the power that was given  to take proceedings to the Circuit Court  under  art. 5755  enabled these proceedings to be taken as part  of  the ordinary business of the court and the right of appeal  that existed from the judgment given by that court was applicable to  such  proceeding.  The second point urged was  that  the Circuit  Court was governed by the Civil Procedure Code  and so  it had to be ascertained if that Code gave  any  appeal. Reference was made to the different sections of the Code and it was contended that no such right of appeal had been given by  those  sections.   The Judicial  Committee  upheld  this point.  The last point which was raised is material for  our purpose.   That was that by the Quebec Statute 10 Geo. 5  c. 79 the whole of the sections of this Code of Civil Procedure 529 including those dealing with the Circuit Court and the right of  appeal were declared to be replaced by other  provisions and so far as the Circuit Court was concerned the provisions as  to  appeal  were completely dropped  out.   Section  42, however, provided that the Court of King’s Bench would  have jurisdiction  in all matters from all courts,  wherefrom  an appeal by law lay and s. 64 provided. that "unless otherwise provided by this Act, all cases, matters or things which, at the  time of its coming into force, were within the  compet- ence of the Court of Review, shall be within the  competence of  the  Court  of King’s Bench,  sitting  in  appeal."  The Judicial   Committee  accepted  this  contention  and   Lord Buckmaster  who  delivered  the  judgment  of  the  Judicial Committee observed as follows:- "Now  this appeal had not been brought when the statute  was passed,  although the proceedings before the  Circuit  Court had  been  instituted.   Consequently  the  statutes  giving whatever  right of appeal may have existed were replaced  by sections  which  gave  none, and s. 64  of  the  Act,  which provided that matters within the competence of the Court  of Review should be subject to the Court of King’s Bench,  must be regarded as qualified by the provision that the powers of the  Court  of Review with regard to the Circuit  Court  had been taken away, and consequently to that extent the statute had otherwise provided’.  " It  is clear from the above passage that the reason why  the appeal was held to be incompetent was not that the court  to which  an appeal lay at the date of the institution  of  the suit had been abolished and, therefore, the right of  appeal ceased to exist nor that that court was abolished and a  new court  was  set up in its place and  nothing  was  mentioned about  the  vested right of appeal but that  the  new  court which  took  the  place of the court  to  which  the  appeal originally lay was given jurisdiction in all cases "  unless otherwise  provided  by this Act " and that  that  very  Act having  declared  the whole of the sections of the  Code  in which  the  provisions  relating to the  Circuit  Court  and rights of appeal found place to be replaced by 530 other   provisions   and  those  other   provisions   having completely dropped out the provisions relating to the appeal from  the Circuit Court, it was held that the  statute  "had otherwise provided In other words his case illustrates  that the  matter really came within the first  exception,  namely that  the  vested  right  of  appeal  had  been  taken  away expressly or by necessary intendment rather than within  the second exception where the court to which the appeal lay had been abolished simpliciter.  This case, therefore, can  give no support to the conclusion of the Full Bench.

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Apart  from  what,  with respect, appears to  us  to  be  an erroneous  reading  of that Canadian case, the  judgment  of this  Madras  Full Bench seems to have been founded  on  the idea that the Constitution simply brought about an abolition of  the Federal Court simpliciter and consequently  the  old vested  right of appeal thereto ceased to exist and that  as no new right of appeal was given to the new court, i.e., the Supreme  Court, no appeal lay to it.  If this  reasoning  of the Madras High Court were correct then with respect to  the case of Colonial Sugar Refining Co. Ltd. v. Irving  (supra), it  could be said, adapting the language used in the  Madras Full  Bench  case and quoted above, that if  any  right  was vested  in  the  parties  to the suit  on  the  day  of  its institution in the court of first instance it was a right of final appeal only to the Privy Council, that though strictly speaking  there  was no abolition of the  Privy  Council  as such,  yet substantially that was the result, for the  Privy Council  ceased to be a court of appeal from the  Queensland Supreme  Court and, therefore, such right as was  vested  in the parties to the suit to appeal to the Privy Council  came to  an  end  when the amendment came  into  force  and  that instead  of that vested right the parties had  obtained  the alternative  right of appeal to the High Court of  Australia and, therefore, no appeal lay to the Privy Council.  If  the reasoning  of  the Madras High Court were correct  then  the Privy  Council case of Colonial Sugar Refining Co.  Ltd.  v. Irving  (supra) must be held to have been  wrongly  decided. But such an argument has not been advanced 531 and, we apprehend, cannot for a moment be countenanced.   In that  case the Privy Council enunciated a  principle  which, according  to  them,  was well established by  a  series  of decisions  going  back  to the time of Lord  Coke  and  that principle has been adopted by Full Benches of almost all the High  Courts of India and has never been dissented  from  or doubted.   It is now too late in the day to go back  upon  a principle  on the strength of which appeals have been  filed and allowed and rights of parties have been adjudicated upon and  titles  to properties have been declared  for  over  50 years.   If, therefore, we are to accept the correctness  of the principle laid down by the Privy Council, as we think we must,  then the only question that remains and calls  for  a decision  is  whether the Constitution has expressly  or  by necessary  intendment. taken away the right of appeal  which vested in the parties at the date of the commencement of the proceedings in the court of first instance. It is said that Art. 133 of the Constitution has taken  away that  right.   This contention appears to be  untenable  and open  to serious objections.  There is nothing in  Art.  133 which  in  terms expressly take,% away the vested  right  of appeal  from any judgment, decree or final order of  a  High Court passed in a civil proceeding arising out of a suit  or proceeding   instituted  before  the  commencement  of   the Constitution.    Does  the  article,  then,   disclose   any necessary  intendment to that effect?  It is said that  that article gives a right of appeal from any judgment, decree or final  order  of a High Court passed after the date  of  the Constitution,  provided it satisfies the conditions  therein mentioned  and this provision impliedly negatives the  right of  appeal from judgments passed after the  Constitution  if the  conditions  are  not  satisfied,  no  matter  when  the proceedings  had  been  instituted in  the  court  of  first instance.   Article 133 only speaks of any judgment,  decree or  final order of a high Court.  It does not say  judgment, decree  or  final  order  passed  after  the   Constitution.

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Therefore,  when an application for leave to appeal  from  a judgment,  decree  or final order of a High  Court  is  made after the 532 Constitution  then, at the date of the  application,  surely the  judgment,  decree  or final  order  passed  before  the Constitution can also , be described literally and correctly as  a judgment, decree or final order of a High Court.   But it is said at once that the Constitution is prospective and, therefore, the judgment, decree or final order  contemplated therein can only be a judgment, decree or final order passed after the Constitution.  But if by reason of the theory that the  Constitution  is prospective we are to read  the  words "passed  after the Commencement of the Constitution"  after. the words " judgment, decree or final order ", can there  be any  cogent  reason  why we may not also read  the  words  " arising out of a suit or proceeding instituted in the  court of first instance after the commencement of the Constitution " after the words " civil proceedings of a High Court in the territory  of India If the Constitution is prospective  with regard to the date of the judgment why should it not be also prospective  with regard to the institution of the  suit  or proceeding out of which the civil proceeding before the High Court arises?  To construe the language of Art. 133 to cover all  judgments, decrees or final orders made after the  date of the commencement of the Constitution irrespective of  the date  of the institution of the proceedings in the court  of the  first  instance will be to run counter to  the  earlier decisions referred to above.  The very wide language of  the amended cl. 15 of the Letters Patent or of s. 242 (1) of the amended  Agra Tenancy Act, 1926 and the other provisions  of other enactments, e.g., the amended provisions of the  Court Fees Act were not construed to apply to judgments,  decrees, or final orders made after the respective dates of amendment or   regarded  as  indicating  expressly  or  by   necessary intendment,  that the vested right of appeal had been  taken away.  The peremptory Words of the amended s. 22 (1) of  the Central  Provinces  and Berar Sales Tax Act, 1947  were  not considered  sufficient by this Court to take away the  right of  appeal  which had vested in the assessee under  the  old section  which  was in force at the time  the  returns  were riled.  It is erroneous, therefore, to 533 say  that the language of Art. 133 impliedly takes away  the right of appeal. There  are,  moreover, deeper grounds of  objection  to  the construction placed upon Art. 133 by this later Madras  Full Bench  case we are considering.  It overlooks the fact  that the  right  of appeal becomes vested in the parties  to  the suit at the date of the institution of the suit and the date of the judgment or the date of the filing of the appeal  has nothing to do with it.  Therefore, a party to a suit, who is dissatisfied  with a judgment passed by the High Court in  a civil  proceeding arising out of a suit or proceeding  filed in the court of first instance before the Constitution,  has a  right of appeal which had accrued to him at the  date  of the  institution of the suit or proceeding in the  court  of first instance according to the. law then in force and it is immaterial  whether the judgment is passed before  or  after the  Constitution.  The right to go from court to  court  in appeal  is  the  right  which  vests  at  the  date  of  the institution  of  the proceedings in the court of  the  first instance.   It is true, as pointed out by Rankin  C.J.  that the litigant cannot go from Court A to Court B or from Court B  to Court C unless and until an adverse order actually  is

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made  but  the right to go up to Court C vests, not  at  the date  of the adverse judgment or the date of the  filing  of the  appeal  but,  at the date of  the  institution  of  the original  proceedings.  If this is, as we apprehend  it  is, -the correct view. then to construe Art. 133 as covering all judgments,   decrees  and  final  orders  made   after   the Constitution  irrespective of the date of the initiation  of the  proceedings in the original court will be to take  away or  impair  the  vested  right of  appeal  from  a  judgment concerning  property or subject-matter of the value  of  Rs. 10,000  but  below  Rs.  20,000 which  had  accrued  to  the aggrieved   party  long  before  the  commencement  of   the Constitution.   Such  a  construction  plainly  and   surely amounts  to giving a retroactive operation to Art. 133,  for so  construed the article will certainly destroy  the  right which  was vested prior to the Constitution.  This  will  be contrary  to the canons of construction referred to  in  the earlier part of this 534 judgment.   As  already stated, if the words  of  Art.  133, namely,  "an appeal shall lie to the Supreme Court from  any judgment, decree or final order in a civil all proceeding of a High Court" bring within their ambit judgments, decrees or final orders passed after the date of the Constitution, then on a parity of reasoning the words in the amended cl. 15  of the  Letters  Patent that "an appeal shall lie to  the  said High Court from a judgment of one judge" should have covered a  judgment  of one judge passed ’after the  amendment  came into  force.  But the Special Bench, of five judges  of  the Calcutta High Court and the Full Bench of five judges of the Madras High Court did not regard that language as sufficient to cover the case of a judgment, which was passed after  the amended  cl. 15 of the Letters Patent came into force.   The truth of the matter is that the latter part of the  judgment in  this later Full Bench case of the Madras High  Court  we are  now  considering is inconsistent with  the  very  basic principle which, in the earlier part of their judgment,  the learned  judges  had  conceded, namely, that  the  right  of appeal  vested  in  the  parties to  a  suit  or  proceeding instituted before the date of the Constitution at the  -date of  the initiation of the suit or proceedings and that  this right had,nothing to do with the date of the passing of  the judgment.    The  learned  judges,  we  say  with   respect, completely  overlooked the fact that the  wide  construction they  put upon Art. 133 destroyed the pre-existing right  of appeal  which had vested in the aggrieved party long  before the   commencement  of  the  Constitution  and   that   this construction amounted to giving the article a  retrospective operation  which  was  not permissible  in  the  absence  of express provision or necessary intendment. The learned judges constituting this later Full Bench of the Madras High Court seem to have been oppressed by the feeling that  to hold that Art. 133 did not apply to  all  judgments passed by a High Court after the date of the Constitution in a  civil  proceeding  arising out of a  suit  or  proceeding instituted in the court of first instance prior to that date will make the article a dead letter for many years to  come. We need 535 only  point out that the Special Bench in Calcutta  and  the earlier  Full  Bench of Madras, which dealt with  the  cases relating  to the amended cl. 15 of the Letters  Patent  were not  deterred by any such feeling of oppression from  giving effect  to the principle which undoubtedly was laid down  by the  Privy  Council in Colonial Sugar Refining Co.  Ltd.  v.

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Irving (supra). The  learned judges of this later Full Bench of  the  Madras High Court may also have been oppressed by the feeling  that if  Art. 133 were not construed as covering  all  judgments, decrees or final orders of a High Court made after the  date of  the Constitution in a civil proceeding  irrespective  of whether  such  proceeding  arose  out of  a  suit  or  other proceeding  instituted before or after that date it will  be to deny a right of appeal to a litigant whose suit had  been filed  in a High Court of a princely State long  before  the Constitution  came into force and in which an adverse  order was made against him by the High Court of the  corresponding Part  B State and he will be deprived of a right of  further appeal to this Court for the case will not fall within  Art. 135 either.  This argument may be attractive at first but  a little  reflection will show that there is no  substance  in it.  If such a litigant had before the Constitution actually filed  his appeal before the Privy Council of  his  princely State or had filed an application before that authority  for leave  to appeal to it then Art. 374(4) will  amply  protect him,  for  this Court will be competent to  dispose  of  his appeal  or application.  If, however, the judgment had  been passed  by the High Court of the princely State  before  the Constitution  and  no  appeal or application  for  leave  to appeal  therefrom  had  been actually  filed  in  the  Privy Council then the suggested construction of Art. 133 will not help  the  aggrieved  litigant, for Art.  133  so  construed applies  only to judgments passed after the commencement  of the Constitution.  Nor will Art. 135 be of any assistance to him because the Federal Court could not, immediately  before the   commencement   of  the  Constitution,   exercise   any jurisdiction or powers in relation to a judgment passed by a High  Court  of a princely State.  Then there  remain  those litigants who filed 69 536 their  suits or proceedings in the High Court of a  princely State  before  the commencement of the constitution  but  in which judgment was passed after the date of the Constitution by  the  High Court of the corresponding Part B  State.   It will be shown hereafter that it is not necessary to put upon Art.  133 such a wide construction as is suggested  by  this later Madras Full Bench decision.  In any event our  solici- tude  to give a right of further appeal to this Court  to  a few litigants should not lead us to put such a  construction on  Art. 133 as will take away the right of appeal  of  many more  litigants who had acquired that right long before  the Constitution  came  into force.  The learned judges  of  the Madras  High  Court  do  not  appear  to  have  sufficiently adverted to the fact that a very large number of  litigants, who  had a vested right of appeal from judgments  concerning property  or subjectmatter of the value of over  Rs.  10,000 but  below  Rs. 20,000 would be deprived  of  their  -Vested right.   We again repeat the admonition given by this  Court in Daji Saheb Mane v. Shankarrao Vithalrao Mane referred  to above, namely, a construction which will have such an effect should  not  be  adopted unless it is  imperative.   We  see nothing imperative in Art. 133 in that behalf. There  is another argument advanced against the  correctness of this Madras Full Bench decision which may be noticed now. It is pointed out that the learned judges conceded that Art. 133 did not apply to a case in which the judgment. decree or final   order  of  the  High  Court  was  made  before   the Constitution.  This concession can only be explained on  the footing  that having been passed before the commencement  of

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the  Constitution such judgment, decree or final  order  did not  comply with the requirements of Art. 133, which,  being prospective, contemplated a judgment, decree or final  order of the High Court passed after the date of the  Constitution and  that  as  Art. 133 did not apply the  vested  right  of appeal  was  governed  by Art. 135.  Then, by  a  parity  of reasoning  why  can it not be said that Art.  133  does  not apply  to  a  judgment, decree or final  order  in  a  civil proceeding arising out of a suit or 537 proceeding instituted in the court of first instance  before the  date  of  the  Constitution, where  the  value  of  the subject-matter  of  the suit and the appeal  was  above  Rs. 10,000 but below Rs. 20,000, because such a judgment, decree or final order did not satisfy the conditions of Art. 133 as to  valuation?’  If non-compliance with one  requirement  of Art.  133, viz., the passing of the judgment after the  date of  the Constitution takes out of that article  a  judgment, decree or final order passed by a High Court before the date of  the Constitution in a civil proceeding arising out of  a suit  or  proceeding instituted also before  that  date  and brings it within Art. 135 as a matter not comprised in  Art. 133, why will not the non-compliance with the conditions  as to  the  valuation laid down in Art. 133  take  a  judgment, decree or’ final order passed by a High Court after the date of  the  Constitution in civil proceeding arising out  of  a suit  or proceeding instituted before that date also out  of the  operation of Art. 133 and consequently bring it  within Art. 135 as a matter to which the provisions of Art. 133  do not apply ? The same reasoning, it is urged, should apply to both  cases.   We need say no more on this  argument  except that we see some force in it, for it is not necessary for us to base our conclusions on this argument. We now pass on to consider another construction of Art.  133 which  appears to us to be quite cogent.  We have seen  that ss. 109 and 110 of the Code of Civil Procedure were  adapted by  the President’s Order and the valuation had been  raised from  Rs.  10,000 to Rs. 20,000 in order to  bring  it  into conformity  with  Art. 133.  Clause 20  of  that  Adaptation Order itself provided that such adaptation would not affect. the  vested  rights.  Therefore those litigants  who  had  a vested  right  of appeal from judgments,  decrees  or  final orders of a High Court in a civil proceeding arising. out of a  suit or proceeding instituted prior to  the  Constitution and  which involved a right or property valued at  over  Rs. 10,000 but below Rs. 20,000 are still to be governed by  the old ss. 109 and 110.  This means that the words "  judgment, decree  or final order" occurring in ss. 109 and 110 of  the Code as 538 adapted  must be read as a judgment, decree or  final  order made  after the date of the adaptation other than  those  in respect of which a vested right of appeal existed before the adaptation  and which were preserved by cl. 20.  If ss.  109 and 110 must be read in this way why should not Art. 133  be read as covering all judgments, decrees or final orders of a High Court passed after the commencement of the Constitution other  than  those  in respect of which a  vested  right  of appeal  existed  from before the Constitution?  It  is  said that there is no saving provision to Art. 133 like cl. 20 of the Adaptation Order and, therefore, Art. 133 cannot be read in a restricted way.  This argument is unsound and here  the observations  of  Rankin C.J. in the Special Bench  case  of Calcutta referred to above become apposite, namely, that the provision which takes away jurisdiction is itself subject to

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the implied saving of the litigant’s right.  Clause 20 ’will be meaningless if Art. 133 is also not read in a  restricted sense.   This restricted% construction of Art. 133 will  not be  open  to the objection that it  deprives  the  aggrieved litigant who had filed his suit or proceeding in a  princely State  before the Constitution but against whom  an  adverse judgment,  decree or final order has been made by  the  High Court  of  the  corresponding Part.B  State  for  the  Privy Council to which that litigant had the right to go had  been abolished.   Such  a  litigant  had  no  vested  right   and therefore  he  can  come under Art. 133  if  the  conditions thereof are satisfied. As  against  this construction it is said that it  will  not help   a  litigant  who  had  filed  his  suit  before   the Constitution but against whom an adverse order is made after the  Constitution, for having on this construction a  vested right  of appeal he will be outside the purview of Art.  133 and  he  can only exercise his vested right if he  can  come within  Art. 135.  It is said that in order to  come  within Art. 135 the judgment, decree or final order must be  passed before the commencement of the Constitution when the Federal Court was in existence, for on the coming into force of  the Constitution the Federal Court ceased to exist and 539 the   Federal   Court  could  not  possibly   exercise   any jurisdiction  immediately  before the  commencement  of  the Constitution  with respect to a judgment, decree  or’  final order   which  had  been  passed  after  the  date  of   the Constitution  when the Federal Court ceased to exist.   This is  to give Art. 135 a very narrow and limited  construction which  was  deprecated by this Court in Daji Saheb  Mane  v. Shankarrao   Mane   (supra).   Further   this   construction overlooks  the fact that Art. 135 confers on this Court  the same  jurisdiction and power with respect to any  matter  to which  the provisions of Art. 133 or Art. 134 do not  apply, if  the  jurisdiction and power in relation to  that  matter were exercisable by the Federal Court immediately before the Constitution  under  any  existing law.  If  we  accept  the position  that at the date of the institution of  the  civil proceeding  a right vested in the litigant to appeal to  the Federal  Court. then it becomes difficult to hold that  such vested right did not constitute a " matter " in relation  to which  jurisdiction  and  powers  were  exercisable  by  the Federal  Court  immediately before the commencement  of  the Constitution.  - The word " matter " is certainly a word  of wide  import  and by interpreting it in a  liberal  way  the vested  rights  of  appeal may well be  brought  within  the purview of Art. 135.  If we say that the Federal Court could not exercise jurisdiction or power unless a judgment, decree or final order was actually passed before it ceased to exist then  it  will also have to be said that the  Federal  Court could  not exercise jurisdiction or power in relation  to  a judgment,  decree or final order passed before  the  Federal Court ceased to exist, but with respect to which no leave to appeal bad been obtained either from the High Court or  from the Federal Court, for without such leave no jurisdiction or power  was  exercisable by the Federal Court in  respect  of those  judgments, decrees or final orders.  This  Court  has already  held  that the word " exercisable " should  not  be used  in that limited and restricted sense.  In our  opinion jurisdiction and powers in relation to a judgment, decree or final  order  to  be  passed by the  High  Court  after  the Constitution but with respect to 540

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which a right of appeal had vested in the parties before the commencement of the Constitution must be ’held to have  been " exercisable " by the Federal Court immediately before  the commencement  of  the Constitution.  Such  jurisdiction  and powers  were "exercisable " in the sense that they could  be exercised  as soon as a judgment, decree or final order  was passed  provided  that  with respect to it  a  litigant  had already  acquired  a vested right of appeal.   There  is  no reason  why the operation of Art. 135 should be  limited  to cases where the right of appeal was not a mere  potentiality but  had  actually  arisen in a  concrete  form  immediately before the commencement of the Constitution as was suggested by  Chakravartti  C. J. in Prabirendra Mohan  v.  Berhampore Bank Ltd. (supra). In  our opinion Veeranna v. Chinna Venkanna (supra) and  the cases following it were not correctly decided. Our  attention has been drawn to the case of Nathoo  Lal  v. Durga  Prasad  (1) where an objection was raised as  to  the maintainability of that appeal on the ground that  according to  the  Code  of Civil Procedure of the  Jaipur  State  the decision  of the Jaipur High Court was final and no  further appeal lay from it and, therefore, the appeal to this  Court was   incompetent.   It  was  further  contended  that   the proceeding in the suit decided in 1945 had concluded by  the decision of the Jaipur High Court given in 1949 and that the review  judgment which modified the decree in regard to  the improvements  could not entitle the appellant to reopen  the decision  of the High Court of Jaipur given in  1949.   This Court observed at page 55:- "In  our opinion, this objection is not well  founded.   The only  operative  decree  in  the  suit  which  finally   and conclusively  determines  the rights of the parties  is  the decree  passed on the 5th of April, 1950, by  the  Rajasthan High Court and that having been passed after the coming into force  of  the  Constitution of  India,  the  provisions  of article 133 are attracted to it and it is appealable to this Court   provided  the  requirements  of  that  article   are fulfilled.  The Code of Civil Procedure of the Jaipur  State could not determine (1)  [1955] 1 S.C.R. 51. 541 the  jurisdiction of this Court and has no relevancy to  the maintainability of the appeal.  The requirements of  article 133   having   been  fulfilled,  this  appeal   is   clearly competent." What  was  claimed by the respondent was  the  attribute  of finality attaching to the judgment, decree or final order of the  Jaipur  High Court.  The argument was that  the  Jaipur High  Court having given its judgment in 1949 that  judgment became  final and the respondent has a vested right to  that final  order, and that right had not been taken away by  the Constitution  either expressly or by  necessary  intendment. What this Court said was that the review application  having been  made the appeal became pending and at large,  for  the judgment was under consideration and, therefore, no finality had attached to it before- the Constitution came into force. The  judgment  on review was passed by  the  Rajasthan  High Court  in April, 1950, that is, after the Constitution by  a High  Court  of  a  Part  B  State  constituted  under   the Constitution  and  the  respondent had no  vested  right  of finality  in relation to any judgment of the Rajasthan  High Court,.  The appellant’s vested right of appeal to the Privy Council  of that State came to an end as that authority  was abolished  and  at the date of the suit he had no  right  of further appeal from the judgment of the Jaipur High Court to

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the Federal Court or to this Court.  That being the position it  *as  a  judgment with respect to which  nobody  had  any vested right of appeal and, therefore, an appeal lay to this Court  under Art. 133 as construed above. lt did not  matter in that case whether the appeal was maintainable under  Art. 133 or Art. 135 and the question that we are considering  in the  present  appeal does not appear to have been  urged  by learned  counsel or discussed by the court in that case  and the  cryptic observation quoted above cannot be taken  as  a considered  and final expression of opinion that whenever  a judgment, decree or final order is passed after the date  of the  Constitution  it must come within Art.  133  no  matter whether the proceedings were instituted before or after that date, 542 For  reasons  stated above we think that the  suit,  out  of which this application arises, having been instituted before the  date of the Constitution the parties thereto had,  from the  date of the institution of the suit, a vested right  of appeal  upon  terms  and conditions then in  force  and  the judgment  sought  to be appealed from being  a  judgment  of reversal and the value of the subject matter being above Rs. 10,000  the  applicant had a vested right of appeal  to  the Federal  Court  under  the  provisions  of  the  old   Civil Procedure, Code read with the Government of India Act, 1935, and  the  Federal Court (Enlargement of  Jurisdiction)  Act, 1947.  Such a vested right of appeal was a matter which  did not  fall within Art. 133 and jurisdiction and  powers  with respect  to  such  right of appeal was  exercisable  by  the Federal  Court  immediately before the commencement  of  the Constitution  and consequently the applicant had a right  of appeal  under  Art. 135 and the High Court was in  error  in refusing  leave  to  appeal to the petitioner.   As  in  our opinion  the petitioner was entitled under Art. 135 to  come up  on appeal to this Court as of right and such  right  has been  wrongly  denied  to  him  we  are  prepared,  in   the circumstances  of this case, to grant him special  leave  to appeal  to  this Court under Art. 136 of  the  Constitution. The petitioner will have the costs of this application  from the respondents Nos.  I and 2. We  are  indebted to the learned Attorney-General,  who  has assisted  us as amicus curiae in deciding  this  application and  we  are also free to express our  appreciation  of  the cogent and learned arguments advanced by the learned counsel for both parties. VENKATARAMA  AYYAR  J.-The point for determination  in  this petition is whether the petitioner is entitled to appeal, as a  matter of right, against the judgment of the Andhra  High Court  in  A.S. No. 301 of 1951 delivered  on  February  10, 1955.   My  brothers are of opinion that he is  so  entitled under Art. 135 of the Constitution.  I regret I am unable to agree  with this conclusion.  In my opinion,  the  governing provision is 543 Art.  133, and as the suit was valued at Rs.  11,400/-,  the appeal would be incompetent, unless it fell within Art.  133 (1)  (c).   This is in accordance with the view taken  by  a Full  Bench of the Madras High Court in Veeranna  v.  Chinna Venkanna  (1),  which has since been followed  by  the  High Court  of Calcutta in Prabirendra Mohun v.  Berhampore  Bank Ltd (2 ), by the High Court of Allahabad in Ram Sahai v. Ram Sevdk(3) and Tajammul Hussain v. Mst.  Quaiser Jahan  Begum( 4)  and by the High Court of Punjab in The Indian Trade  and General Insurance Ltd. v. Raj Mal Paharchand (5), while  the contrary  view  has been taken by the Bombay High  Court  in

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Dajee  Sahib v. Sankar Rao(6), by the Nagpur High  Court  in Bhagawantrao v. Viswasa Rao (7) and by the Patna High  Court in N. P. Sukul v. R. K. Misra (8).  We have had the  benefit of  a full and learned argument on the question, and  having carefully  reconsidered  the  matter, I  have  come  to  the conclusion  that the view taken by the majority of the  High Courts is correct. The  judgment against which the present appeal is sought  to be  preferred  was  pronounced on February  10,  1955.   The Constitution  of India came into force on January 26,  1950, and Arts. 131 to 140 therein define the jurisdiction of  the Supreme Court, original and appellate.  It being settled law that  an appeal does not lie unless expressly given  by  the statute,  the  sole point for determination is  whether  the present appeal is authorised by any of those Articles.   The two  Articles which bear on the question are Arts.  133  and 135.   According  to  the petitioner, it is  Art.  135  that applies,  and  he  has  a right  to  appeal  to  this  Court thereunder.  Article 135 is as follows: "  Until Parliament by law otherwise provides,  the  Supreme Court  shall also have jurisdiction and powers with  respect to  any  matter to which the provisions of  article  133  or article  134  do not apply if jurisdiction  and  powers  in, relation to that matter were exercisable (1) I.L.R. 1953 Mad. 1979.    (5)A.I.R.1956 Punjab. 228. (2) A.I.R. 1954 Cal. 289.     (6)I.L.R. 1952 Bom. 906. (3) A.I.R. 1956 All 321.      (7)I.L.R. 1953 Nag. 822. (4) A.I.R. 1956 All. 638.     (8)[1933]  I.L.R.  32  Patna 400. 70 544 by the Federal Court immediately before the commencement  of this Constitution under any existing law." For this Article to apply, two conditions must be fulfilled: (1) The matter should be one which does not fall within  the purview  of  Art.  133; and (2) it should  be  a  matter  in respect of which jurisdiction was exercisable by the Federal Court before the commencement of the Constitution under  any existing law.  Whether the present appeal is competent under Art.  135  will depend on whether it  satisfies  both  these conditions. Taking  the  first condition, it is the  contention  of  the respondent that the present matter falls within the  purview of  Art.  133,  and that therefore  Art.  135  is  excluded. Article  133,  in so far as it is material for  the  present purpose, runs as follows: 133(1)  " An appeal shall lie to the Supreme Court from  any judgment, decree or final, order in a civil proceeding of  a High  Court  in  the territory of India if  the  High  Court certifies- (a)that  the amount or value of the subjectmatter  of  the dispute in the court of first instance and still in  dispute on appeal was and is not less than twenty thousand rupees or such  other  sum  as  may be specified  in  that  behalf  by Parliament by law; or (b)that  the  judgment,  decree or  final  order  involves directly  or  indirectly some claim or  question  respecting property of the like amount or value; or (c)that  the case is a fit one for appeal to  the  Supreme Court; and where the judgment, decree or final order appealed  from affirms  the decision of the court immediately below in  any case other than a case referred to in subclause (c), if  the High  Court further certifies that the appeal involves  some substantial question of law."

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This  Article  is clearly not retrospective, and  that  has been repeatedly held by this Court.  But the only result  of it  is, as decided in Janardan Reddi and others v. State  of Hyderabad (1), that appeals against (1)  [1951] S.C.R. 344. 545 judgments,  decrees or final orders passed prior to  January 26,  1950,  will  not  be governed  by  Art.  133.   And  as prospective in character, there being no words’ limiting its operation  in  any manner, it will apply to  all  judgments, decrees  or final orders passed after the coming into  force of  the Constitution, and as the judgment in this  case  was pronounced on February 10, 1955, the right of appeal against it  must be determined in accordance with Art. 133,  and  as the  valuation of the suit was only Rs. 11,400, the  present appeal  would  be incompetent, as the requirements  of  Art. 133(1) (a) are not satisfied. The  answer of the petitioner to this contention might  thus be stated: Under the law as it stood on April 22, 1949, when he filed the suit he had vested in him a right of appeal  to the High Court and from the High Court to the Federal Court. That  right  has  not been taken away  by  the  Constitution expressly  or by necessary implication, and the Articles  of the  Constitution should therefore be so interpreted. as  to give effect to it.  That requires that the operation of Art. 133  should  be limited to judgments and decrees  passed  in civil  proceedings  instituted after the  Constitution.   If that  Article is so interpreted, judgments passed  in  suits instituted before, though delivered after the  Constitution, will  fall outside its purview.  And that will let  in  Art. 135.  As this is the sole ground for construing the language of Art. 133, which is wide and unqualified, in a  restricted sense, it is necessary to examine rather closely whether the petitioner  had  any  vested  right  of  appeal  before  the Constitution, what the scope of it is, and whether it is one which  could  survive to him under  the  Constitution.   The further  question will arise whether even if that is so,  it is permissible to read into the Article words which are  not there, so as to cut down its operation. The contention of the petitioner that when he instituted the suit  in the Sub-Court, Bapatla, on April 22, 1949,  he  had under  the then law a right of appeal to the High  Court  of Madras  against  the  judgment passed in  that  suit  and  a further  right  of  appeal to the Federal  Court  against  a judgment to be passed by the High Court in the appeal, rests on the decision in Colonal 546 Sugar Refining Company v. Irving (1).  There, the facts were that  an  action  was  commenced in  the  Supreme  Court  of Queensland on October 25, 1902.  On that date, according  to the  Order in Council dated June 30, 1860, an appeal lay  to the Privy Council against the judgment of the Supreme Court. While  the action was pending, the Judiciary Act, 1903  came into  force on August 25, 1903, and the result of it was  to abolish  appeals  to  the Privy Council  and  to  substitute therefor a right of appeal to the High Court of Australia in respect of matters mentioned therein.  On September 4, 1903, the  Supreme Court gave judgment dismissing the action,  but granted  leave  to  the plaintiff to  appeal  to  the  Privy Council.  The plaintiff having lodged an appeal pursuant  to the  leave,  a preliminary objection was raised  as  to  its maintainability  on  the ground that as the  judgment  under appeal  had been pronounced after the coming into  force  of the  Judiciary  Act, any appeal against the  same  would  be governed  by  the  provisions  of that  Act,  and  that,  in

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consequence,   the   appeal-to   the   Privy   Council   was incompetent.  In overruling this contention, Lord Macnaghten observed: "  The  Judiciary  Act  is  not  retrospective  by   express enactment  or  by necessary intendment.  And  therefore  the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure?  It seems  to their  Lordships that the question does not admit of  doubt. To  deprive a suitor in a pending action of an appeal  to  a superior  tribunal  which belonged to him as of right  is  a very   different  thing  from  regulating   procedure.    In principle,   their  Lordships  see  no  difference   between abolishing an appeal altogether and transferring the  appeal to a new tribunal.  In either case there is an  interference with  existing  rights contrary to  the  well-known  general principle   that  statutes  are  not  to  be  held  to   act retrospectively  unless a clear intention to that effect  is manifested." It  is on this decision that the entire argument in  support of  the  petition is founded.  But is it correct ?   It  may look a daring and almost fatuous adventure to (1)  [1905] A.C. 369. 547 canvass  the correctness of the decision in  Colonial  Sugar Refining  Company v. Irving (supra), especially when it  has been followed by Courts in this country for well nigh half a century.   But  with all the respect which I  have  for  the decision of a tribunal so august as the Privy Council and of a Judge so eminent as Lord Macnaghten, I am of opinion  that the  decision in question cannot be supported on  principle, that  it  is not warranted by the authorities,  and  cannot, therefore, be followed. Considering  the  question  on principle,  an  appeal  is  a proceeding  by which the correctness of the decision  of  an inferior  court  is challenged before a superior  court.   A right of appeal therefore can arise by its very nature  only when  a decision by which a litigant is aggrieved is  given, and it sounds paradoxical to say that it arises even  before judgment  in  the case is pronounced.  Now what  reason  can there  be  for  holding that a right of appeal  vests  in  a suitor at the commencement of the proceedings?  If it is  to be  held  not  to arise on the date of  judgment,  then  why should  it  be  held  to arise on  the  institution  of  the proceedings,  and not on the date of the  transaction  which -forms the foundation for those proceedings ? If it is to be said that when a litigant commences a proceeding he acts  on the  expectation that a right of appeal existing  under  the then  law  with reference to that proceeding  would  not  be taken  away,  it could likewise be said that when  a  person enters  into a -transaction, he does so in  the  expectation that  the right of action and of appeal in relation  thereto under  the  then  law  would be available  to  him  for  the enforcement of his rights under the transaction.  And no one has  asserted that a right of appeal is to be determined  on the law as it stood on the date of the transaction. Then   again,  if  the  right  of  appeal  arises   at   the commencement  of  the  action, in whom  does  it  vest,  the plaintiff  or  the  defendant  ? It is  the  suitor  who  is aggrieved  by  the decision that has a right  to  prefer  an appeal against it, and it might, according to the result, be either the one or the other, and if the theory that a  right of appeal arises when the proceedings are 548 commenced is to be accepted, it must be held to vest at that

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point  of time both in the plaintiff and the defendant,  and cease on the determination of the cause as regards the party who  succeeds,  and  where the success is  partial,  to  the extent  of  that  success.  Can  anything  so  nebulous  and contingent be regarded as a right and as a right which vests before a decision is given.  The judgment in Colonial  Sugar Refining  Company  v. Irving (supra) does not  disclose  the reasoning  on which it is based.  Lord Macnaghten  no  doubt refers to " a long line of authorities from the time of Lord Coke to the present day ", and they are presumably what  are referred  to  in the argument of counsel at page  370.   But when  examined, they do not bear on this point.  Lord  Coke, in  commenting  on the Statute of Gloucester (6,  Edward  I, Chap.  78, s. 3) which prohibited alienations  of  tenement, stated: "  This extendeth to alienations made after the statute  and not  before;  for  it is a rule of law  of  Parliament  that regularly  nova constitutio futuris forman  imponere  debet, non praeteritis" (a new statute regulates future conduct and not past(1)). From  this  passage, one may say that legislation  does  not affect a right of appeal, which has accrued.  But it  throws no light on the question when that right accrues, whether at the  commencement of the action or on the  pronouncement  of the decision. In Towler v. Chatterton (2), the suit was to recover an oral loan,  and  the  question was whether it  was  hit  by  Lord Tenterdon’s  Act, which required that, to take the case  out of  the  operation of the statute of  limitation,  the  debt should  be in writing.  That Act was passed after  the  debt was  contracted but before the action was  brought  thereon. It was held that having regard. to the terms of the Act,  it must  be held to be retrospective, and that the  action  was not maintainable. The decision in The Ydun (3) is similar to the one in Towler v. Chatterton (supra).  The plaintiffs sued for damages  for the  grounding  of their vessel on September  13,  1893,  by reason of the neglect of the defendants. (1)  2 Inst. 292. (2)  (1829) 6 Bing. 253; 31 R.R., 411. (3) (1899) P.D. 236. 549 On  December 5, 1893, the Public Authorities Protection  Act came  into force, and that provided that an  action  against public authorities grounded on neglect or default should  be commenced within six months of such neglect or default.  The suit  was  actually  filed on November  14,  1898,  and  the question  was  whether the right which had  accrued  to  the plaintiffs  on  September  13,  1893,  was  barred  by  this enactment,  which came into force on December 5,  1893.   It was held that it was. In  Attorney-General v. Sillem (1), the point  for  decision was whether in exercise of a power conferred on the Court of Exchequer to frame rules for regulating practice before  it, it could enact a rule providing for an appeal.  The House of Lords  held that it could not, because an appeal was  not  a matter  relating  to  practice or  procedure,  and  must  be conferred by the legislature itself. In  In  re Joseph Suche & Company Ltd. (2), the  facts  were that  an order was -made on January 30, 1875, winding  up  a company under the supervision of the Court.  Under  the  law as  it then stood, a secured creditor was entitled to  prove for the full amount of the debt without deducting the  value of  the  securities. Subsequent to the order, s. 10  of  the Judicature  Act,  1875 came into operation, and  under  that

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section,  the  secured  creditor could only  prove  for  the balance  of  the  claim after deducting  the  value  of  the securities.   The  point in dispute was  whether  a  secured creditor was entitled to prove for the entire debt under the law  as it stood at the date of the order of winding up,  or only  for the balance of the debt after deducting the  value of  the security in accordance with s. 10 of the  Judicature Act.,  It was held by Jessel M. R. that the right  to  prove for a debt was not a mere matter of procedure, and could not be  distinguished  from  a right of  action,  and  that  the creditor  was therefore not affected by the change  effected by  s.  10  of the Judicature Act.  The decision  in  In  re Athlumney  (1) is similar to the one in In re Joseph  Suche, and (1)  [1864] 10 H.L.C. 704; 11 E.R. 1200. (2)  [1875] 1 Ch.  D. 48. (3) [1898] 2 Q.B. 547. 550 Company Ltd. (supra), the question being whether the ,rights of a creditor who had proved for his debt could be  affected by the provisions of a Bankruptcy Act, which came into force after  proof of such debt.  Following In re Joseph  Suche  & Company Ltd., it was held that the right to prove a debt was a substantive one, and was not affected by the provisions of the Bankruptcy Act, which came into force after such proof. It may be taken on these authorities that a right of  appeal is  a substantive right and not a mere matter of  procedure, and  that a legislation subsequent to the accrual of such  a right  must  not be construed as taking it away,  unless  it does  so  expressly or by necessary  implication.   But  the question still remains when that right accrues or vests; and that  did  not arise for determination  in  the  authorities cited  above, and indeed, does not appear to have  been  the subjectmatter  of any pronouncement prior to Colonial  Sugar Refining Company v. Irving (supra), and the decision therein that  a right of appeal vests when the action  is  commenced would  accordingly  appear to be a deduction made  from  the character  of the right as a substantive one.  But is  it  a right deduction to make ?  It is one thing to say that right of  appeal  is a substantive right, and  quite  a  different thing to hold that it vests at the date of the  commencement of  the proceedings.  It would be perfectly logical to  hold that  the right of appeal is a substantive right and at  the same time that it arises only when the decision which is  to be  appealed against is rendered.  The result of  that  view will be that a right of appeal which arises when a  judgment is given, would stand unimpaired by a subsequent legislation altering or abridging it, unless that is made retrospective, expressly  or by necessary implication.  On this  reasoning, the  conclusion  that  because  a  right  of  appeal  is   a substantive   right  it  must  be  held  to  vest   at   the commencement  of the action would be non sequitur.   Whether we consider the question, therefore, on the principle of  it or  on  the basis of authorities, the decision  in  Colonial Sugar Refining Company v. Irving (supra) does not appear  to be sound. 551 It  is argued that the decision in Colonial  Sugar  Refining Company  v.  Irving (supra) has been applied, by  the  Privy Council  in  Delhi Cloth and General Mills Company  Ltd.  v. Income-tax  Commissioner,  Delhi (1) in the  decision  of  a question  arising under the Indian Income-tax Act,  that  it has been followed ever since in numerous decisions, and that it  is now too late to reverse the current  of  authorities, and  propound  what is a new theory of the law.   I  see  no

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force  in  this contention.  Is it to be expected  that  the British  Indian Courts would consider this question  on  its own  merits, and hold contrary to the decision  in  Colonial Sugar  Refining  Company v. Irving (supra) that a  right  of appeal  arises, not on the date of the commencement  of  the action  but on the date of the judgment ? If Colonial  Sugar Refining  Company v. Irving (supra) fails to commend  itself to us by force of its reasoning, could the decisions of  the British Indian Courts which had no option in the matter  but merely  followed  it, take the matter further ? It  is  true that  the number of decisions which have  followed  Colonial Sugar Refining Company v. Irving (supra) is quite a  legion. But apart from any question of stare decision, they have  no independent  value of their own, and no useful purpose  will be served -by any detailed reference to them. Then,  there  is the question, whether in view of  the  fact that  the  decision in Colonial Sugar  Refining  Company  v. Irving (supra) has been followed in this country for quite a long  period,  we should not decline to disturb  it  on  the principle of stare decisis.  But that principle is  properly applicable  only  when there is a long course  of  decisions interpreting  the  law  in a particular way  and  rights  to property  have  been  acquired  and  contractual   relations entered  into  on the basis of those decisions.   It  cannot properly  be  invoked  when the question  is,  when  on  the construction  of  a  statute a right to appeal  vests  in  a suitor.  I ’should add that the petitioner did not seriously contend  that the principle of stare decisis would apply  to the decision of such a question. (1)  [1927] L.R. 54 I.A. 42I. 71 552 I  must now refer to the decision of this Court  in  Hoosein Kasam  Dada (India) Ltd. v. The State of Madhya Pradesh  and others  (1), where the decision in Colonial Sugar  Refining, Company  v.  Irving (supra) was followed.  But the,  it  was assumed that the decision in Colonial Sugar Refining Company v.  Irving  (supra) was correct, and the precise  point  now under  consideration  was neither raised nor  decided.   The question  in its present form was raised in Indira  Sohanlal v. Custodian of Evacuee Property, Delhi and others (2),  but the  point was left open.  Vide observations at  page  1133. The  present  question  must, therefore,  be  taken  as  not concluded by any authority of this Court. In jurisdictions not dominated by the Privy Council, as  for example,  the United States of America,, it is well  settled that  the right of appeal is to be determined in  accordance with the law as it is on the date of the judgment and not as it was on the date of the commencement of the action.  Thus, in  Corpus Juris Secundum, Volume IV, page 63, the  position is stated as follows: S-3-Statutes taking effect before judgment: Except  where the statute itself provides it or there is  a general provision that statutes relating to the remedy shall not  affect  pending actions, a statute which  gives,  takes away,  or  modifies the remedy by appeal or  other  mode  of review  applies to cases commenced before, but in which  the judgment, decree, or order sought to be appealed from is not rendered or made untll after it goes into effect. S-4-Statutes taking effect after judgment: Unless  it  is evident from the terms of  a  statute  which, gives, takes away, or modifies the remedy by appeal or other mode  of review that it was intended’ to have a  retroactive effect, it applies only to cases pending and undetermined at the time when it goes into effect, and has no application to

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causes  in  which  final  judgment  has  been  entered,   or rendered,   although  not  entered,  prior  to  that   time, particularly where it is (1) [1953] S.C.R. 987. (2) [1955] 2 S.C.R. 1117. 553 expressly  provided  that  the  statute  shall  not   affect existing remedies." The  statement of the law in American Jurisprudence,  Volume III, page 145, section 426 is as follows: "As  a  general  rule, the right of appeal  is  governed  by the,law applicable thereto in force when the final  judgment is rendered." Agreeing with the above statements of the law and  differing from  the  decision in Colonial Sugar  Refining  Company  v. Irving  (supra),  I  am of opinion that a  right  of  appeal arises only when judgment is given and not earlier, and that accordingly  the  petitioner  acquired no  vested  right  of appeal on April 22, 1949, when he instituted the suit. But even if the decision in Colonial Sugar Refining  Company v.  Irving  (supra)  is to be accepted as  laying  down  the correct  law,  it  does not go far  enough  to  support  the petitioner.   It  should be noted that the ,suit  was  there instituted  in a Court from which but for the Judiciary  Act an appeal would have lain to the Privy Council, and what the Judicial  Committee decided was that the right to prefer  an appeal  became  vested  in the suitor when  the  action  was commenced, and that no legislation subsequent thereto  could impair  or take away that right, unless it did so  expressly or  by  necessary intendment.  Giving full  effect  to  that decision,  the  petitioner  can  only  claim  that  when  he instituted  the suit in the Sub Court, Bapatla on April  22, 1949,  he had on that date a vested right to file an  appeal against  any decision which might be given in that  suit  to the  High Court of Madras, which was the Court to  which  an appeal  lay from the Bapatla Sub Court on that  date.   That right is not in dispute. -The petitioner did file an  appeal to the High Court of Madras, and that was heard and  decided by the Andhra High Court, to which the appeal was  transfer- red.  What the petitioner now claims is something more.   He contends  that not only had he on April 22, 1949,  a  vested right, of appeal to the High Court of Madras from a judgment which  might  be delivered in his suit in  the  Bapatla  Sub Court, but that he had also 554 vested  in  him on that date a further right  to  prefer  an "appeal  to  the Federal Court against  the  judgment  which might  be  delivered by the Madras High Court in  an  appeal which might be preferred to that Court against the  decision of  the Bapatla Sub Court.  That is to say, what  vested  in him on April 22, 1949, was also a right to prefer an  appeal to  the.  Federal Court against a non-existent  judgment  of the  High  Court in a non-existent appeal.  One  would  have thought such a contention unarguable, were it not that it is supported  by the decision of a Full Bench of  the  Calcutta High  Court  in  Sadar Ali v.  Dalimuddin  (1),  which  war, followed  by  a  Full  Bench-of the  Madras  High  Court  in Vasudeva  Samiar,  In re (2).  It now becomes  necessary  to examine the correctness of these decisions. In Sadar Ali v. Dalimuddin (supra), the question raised  was with reference to an amendment of the Letters Patent,  which provided  that  no appeal shall lie from the decision  of  a single  Judge  in second appeal to a Division Bench  of  the Court,  unless  a  certificate therefor  is  granted.   This amendment  came into force on January 14, 1928.   Under  the

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terms  of  the  Letters Patent as  they  stood  before  this amendment,  an  appeal  lay as a matter of  right  from  the judgment  of  a single Judge to a Division  Bench,  and  the point for decision was as to how far this right was affected by  the amendment.  In the case before the  learned  Judges, the  suit had been instituted in the court of the Munsif  on October  7,  1920, and the second appeal filed in  the  High Court  on  October  4, 1926.  It was  actually  heard  by  a learned Judge of the High Court on April 4, 1928, after  the amendment  had.  come into force and was dismissed,  and  he also  refused to grant a certificate.  Notwithstanding  this refusal,  the appellant sought -to prefer an appeal  against this judgment to a Division Bench, and with reference to the bar  created  by  the amendment, he contended  that  he  had vested  in  him on October 7, 1920, when  he  commenced  his action,  a right of appeal to all the courts  in  succession under  the law as it then stood, and that the amendment  had not deprived him of that right.  In agreeing with this (I)  [1929] I.L.R. 56 Cal. 512.  (2) [1928] I.L.R.  52  Mad. 361. 555 contention,  Rankin C. J. who delivered the judgment of  the Court, stated the ratio decidendi as follows: "  Now  the  reasoning  of the  Judicial  Committee  in  the Colonial  Sugar  Refining  Company’s   case  (Supra)  is   a conclusive  authority to show that rights of appeal are  not matters  of  procedure,  and that the ’right  to  enter  the superior court is for the present purpose deemed to arise to a  litigant  before  any  decision  has  been.given  by  the interior  court.  If the latter proposition be accepted.,  I can  see  no  intermediate  point at  which  to  resist  the conclusion  that the right arises at the date of the  suit., It does not arise as regards Court B alone when the suit  is instituted in Court A and as regards Court C when the  first appeal is lodged before Court B...... It is quite true  that the suitor cannot enter Court C without going through  Court B,  but neither can he enter Court B till Court A has  given its decision.  The right must be a right to take the  matter to Court C in due course of the existing law." It will be noticed that the two propositions of law on which the  judgment is based are, first, that a suitor in Court  A should  be  held to have a right of appeal to Court  B  even before  Court  A has given its decision,, as  to  which  the learned   Judge  simply  observes  that  the  question   was concluded  by the decision of the Privy Council in  Colonial Sugar  Refining Company v. Irving (supra), and second,  that if  a suit or can have a vested right of appeal to  Court  B before  Court  A  where  his action  is  pending  gives  its decision, why not he also have a right vested in him at  the same  time  to appeal to Court C even before  an  appeal  is instituted  in  -Court B. That conclusion  appeared  to  the learned  Chief  Justice  to follow logically  on  the  first proposition; but that, in my opinion is open to question. Now, a right of appeal is, as-observed in AttorneyGeneral v. Sillem (supra), "the right of entering a ,superior court and invoking  its aid and interposition to redress the error  of the  court  below" (Vide page 1209), and when  examined,  it will  be found to possess two facets, a, right conferred  on the  suitor to challenge the decision given in a  proceeding in.   Court A, by which he is aggrieved, and a  jurisdiction conferred on 556 Court  B,  which  may be termed as the  superior  Court,  to review  the decision of Court A, which may be designated  as the  inferior  Court.   The  right of  the  suitor  and  the

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jurisdiction,  of the Court are both of them  necessary  and essential  ingredients  that  together go  to  make  up  the concept  of  appeal,  and both of  them  must  expressly  be granted  by the legislature.  Reference may be made  to  the following  observation of Lord Westbury in  Attorney-General V. Sillem (supra): "The  creation  of a new right of appeal is plainly  an  act which requires legislative authority.  The Court from  which the  appeal  is given and the Court -to which it  is  given, must both be bound , and that must be the act of some higher power." And  he  also  defined a right of appeal as  "in  effect,  a limitation  of  the  jurisdiction  of  one  Court,  and   an extension of the jurisdiction of another." The position then is  that  a,  right which is given to  a  suitor  to  appeal against  a  decision  of Court A is  not  something  in  the abstract but one which has to be exercised in Court B, which derives its power to hear appeals against decisions of Court A under legislative authority, and it is therefore  possible to conceive of such right only in relation to two  specified Courts A and B. When  the  law establishes a hierarchy of  Courts  and  then provides in succession for appeals from a Court of the lower grade to one of the higher grade, it will not be correct  to regard those appeals as forming a single proceeding, or  the right  to  file  them  as a single  right.   If  a  suit  is institute& in Court A and the law permits an appeal  against its decision to Court B, add if the law further provides for an appeal from the decision of Court B to Court C, and there is  again  a right of further appeal  provided  against  the decision of Court C to Court D, the successive appeals  from Court A to Court B, from Court B to Court C and from Court C to  Court  D  are distinct proceedings  independent  of  one another.  How then can the right of appeal from one Court to another  be  held  to  comprise  within  it  the  right   of appeal from that Court to a, third Court?  Section 96,  Code of   Civil  Procedure,  provides  for  an  appeal   from   a decree passed by the trial court, and under 557 that  provision  the decision in a suit  instituted  in  the court  of a District Munsif will be open to appeal  to  the, District  Court.’  Section 100, Code  of  Civil  Procedure,’ provides  for  further  - appeal from the  judgment  of  the District  Court to the High Court; but this right of  second appeal  is much more limited than that given  under  section 96.  It lies only when there is a question of law, and it is also  subject  in certain cases, to  pecuniary  limitations. Thus, the rights of appeal conferred by ss. 96 and 100, Code of  Civil  Procedure,  are different in  their  quality  and contents.  Then again, under so. 109 and 110, Code of  Civil Procedure, a further appeal is provided against the decision of  the  High Court to this Court subject again  to  certain conditions.   This is ’a right different in.  its  character from the right of appeal conferred by s. 96 or s. 100.   The notion,  therefore, that if a suitor has a right  of  appeal from  Court  A to Court B, that right includes  a  right  of appeal  from  Court B to Court C and again from Court  C  to Court D, would appear to be untenable. Viewing  the  question next from the point of  view  of  the jurisdiction  of  the  Court, a right which is  given  to  a suitor  to  challenge the decision of Court A in  appeal  is only  a  right  to challenge it before  Court  B,  which  is authorised to hear appeals from Court A. It cannot extend to a  possible appeal from Court B to Court C, because Court  C is not a Court authorised to entertain an appeal against the

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decision of Court A, and it will be an error to speak of the suitor  in Court A, having a right of appeal to Court  C  to which under the law an appeal cannot lie.  Section 96 of the Code  of  Civil  Procedure brings  out  the  position  quite unmistakably, when, it provides that an appeal shall,lie "to the  Court authorised to hear appeals from the decisions  of such  Court."  And  if, as already pointed  out,  under  the scheme  of the Code an appeal, from Court A to Court B is  a proceeding distinct and different from an appeal from  Court B  to Court C, and that is a feature which runs through  the entire  succession  of appeals under the Code,  it  will  be inconsistent  with  that scheme to hold that when  a  suitor commences an action in Court A, a right vests in him at that time not merely to appeal from Court C to 558 Court  B,  a&" held in Colonial Sugar  Refining  Company  v. Irving  (supra), but also from Court B to Court C and   from Court C to Court D. The decision in Colonial Sugar  Refining Company  v. Irving on which this conclusion in Sadar Ali  v. Dalimuddin  (supra)  is based, is clearly  no  authority  in support of it. But it is said that there were before the decision in  Sadar Ali  v.  Dalimuddin (supra) authorities  of  Indian  Courts, which had held that a suit, appeal and second appeal were to be  regarded as constituting one proceeding, that Sadar  Ali v.  Dalimuddin  mer,  this  principle  on  the  decision  in Colonial  sugar  refining  Company  v. Irving  (supra),  and that come to therein was therefore well placed on principle. These decisions, however, when examined, contain little that really  supports  the  conclusion reached in  Sadar  Ali  v. Dalimuddin.   In  fact, they are merely referred to  in  the judgment  at pages 516 and 517 with out any  discussion,  as authorities relied on by counsel for appellant in support of his  contention  that the principle of s. 6 of  the  General Clauses  Act  was  applicable in  the  construction  of  the Letters Patent.  The first of these decisions is  Ratanchand Shrichand  v.  Hammantray Shivbakas (1).  There,  the  facts were that ’a suit for Rs. 23,319 was instituted in the court of  the  Principal  Sadar  Amin  of  Dhulia,  and  that  was substantially  decreed  on January 29, 1869.  On  March  19, 1869, the Bombay Civil Courts Act came into force, and under that  Act  appeals in suits exceeding Rs. 5,000 lay  to  the High  Court of Bombay.  But under the law as it stood  prior to  that  date,  the  appeal against  the  judgment  of  the Principal Sadar Amin would have lain to the District  Court. The  point  for decision was whether an appeal  against  the decree, dated January 29, 1869, lay to the District Court or to the High Court.  The learned Judges held that the  proper forum  to which the appeal lay was the District Court.   The decision was based on s. 6 of the General Clauses Act, which enacted that " the repeal of any statute   shall not:  affect any  proceedings  commenced before the repealing  Act  shall have come into operation." It was (1) (1860) 6 Bom.  H.C. R. 166. 559 observed  by  Couch  C.J. that "A suit is  a  judicial  pro- ceeding,  and  the  word I proceedings’  must  be  taken  to include  all the proceedings in the suit from the  date  of’ its  institution  to its final disposal,  and  therefore  to include proceedings in appeal." The meaning of this  passage is  clearly this: The word " proceeding" is not  limited  to suits;  it  is wide enough to include appeals.   Just  as  a right of suit which had accrued before repeal is saved by s. 6, so also is a right of appeal.  This is all that the above observation  means.  It does not mean that when  under  this

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section a right of suit is saved, a right of appeal  against the  decree  passed therein is in addition saved.   This  is clear from the following observations:  "  It is clear it was not the intention of the  Legislature to  take  away the right of appeal in any case in  which  it existed  at  the date of the passing of the  Bombay  Court’s Act." Where,  therefore, a suitor could not maintain a  proceeding by  way  of  appeal  at  the  date  of  the  repealing  Act, Ratanchand  Shrichand V. Hammantrav Shivbakas (supra) is  no authority for holding that such a right is preserved to  him as comprised in a right of suit which he had on that date. In  Chinto  Joshi v. Krishnaji Narayan (1),  proceedings  in execution  of a decree had been commenced when the  Code  of Civil  Procedure, Act VIII of 18-59, was in force.   By  the time the properties were actually sold in execution, a,  new Code  of  Civil  Procedure,  Act X of  1877  had  come  into operation.  The judgment. debtor filed an application to set aside  the sale on the ground of irregularity, and the  same was  allowed.  The question was whether this order was  open to appeal.  It was not appealable under the Act of 1859, but was  appealable  under the Act of 1877.  It  was  held  that execution proceedings for the-sale of property would not  be complete until the Bale had taken place, and that  therefore the proceedings for sale which were commenced under the  Act of  1859  were governed by the provisions of that  Act,  and that  the  appeal was accordingly incompetent I  do  not  we anything in (1)  [1879] I.L.R. 3 Bom. 214. 72 560 this decision which touches the present controversy.  In the course  of  the judgment, West J. stated  that  opinion  had sometimes  been  expressed  " that the legal  pursuit  of  a remedy, suit, appeal and second appeal, are really but steps in  a  series  of  proceedings  connected  by  an  intrinsic unity........  Are  we to interpret this remark  as  meaning that  under  the law, suit, appeal, and  second  appeal  all constitute  but  one proceeding ?   The  observation  itself merely  speaks of them as steps in a series of  proceedings. That  is  to say, they are different  proceedings,  but  are directed  to a common purpose.  And are we to build on  this observation, reading it along with the decision in- Colonial Sugar  Refining  Company v. Irving (supra) the  theory  that when  a  right to file an appeal arises,  it  comprehends  a right  to file the whole series of appeals under the  law  ? That  will be putting the observation to a use  which  could not  have been contemplated.  On the other hand,  there  are the following observations at page 215 in the same judgment, which are more germane to the present discussion: " When judicial enquiry has reached its intended close in an adjudication,  requiring  thenceforward  in  theory  only  a ministerial  or  coercive exercise of authority to  give  it practical  effect,  the party who strives by  an  appeal  to unsettle  again the legal relation, which in itself  has  by the  act of the Court become settled may fairly be  regarded as  instituting a new proceeding Such has been the  view  of some eminent authorities.". Then,  there  is  Deb Narain Dutt  v.  Narendra  Krishna(1). There,  a  decree was obtained under the provisions  of  the Bengal  Tenancy Act VIII of 1869, and by the time  execution proceedings  were started, a new Act VIII of 1885  had  come into  operation.  Section 170 of the new Act prohibited  the entertainment  of any claim by third parties  to  properties

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attached  in execution of a decree.  The point for  decision was  whether this provision applied to a claim preferred  to the  property  attached in execution of  the  decree  passed under  Act.  VIII of 1869.  It was contended in  support  of the maintainability of the claim that a right to -prefer (1)  [1889] I.L.R. 16 Cal. 267. 561 a  claim existed under the provisions of Act VIII  of  1869, and  that under s. 6 of the General Clauses Act  that  right could be exercised notwithstanding the, repeal of that  Act. It was held that the word " proceedings " in the section did not include execution proceedings, and that, therefore,  the matter was governed by s. 170 of the Act. Thus,  the authorities referred to at pages 516 and  517  in Sadar  Ali v. Dalimuddin (supra) really turn on the  meaning to  be  given to the word it proceedings " in s.  6  of  the General  Clauses  Act,  and  they are not  of  much  use  in deciding  the  question  now under  consideration,  and  the decision  in Sadar Ali v. Dalimuddin (supra) must  therefore be  regarded as the first authority which has  extended  the theory  of  a  right of appeal vesting at the  date  of  the commencement  of the action to the whole series  of  appeals provided  by  the  law.   The  decision  in  Sadar  Ali   v. Dalimuddin  (supra)  was  followed by a Full  Bench  of  the Madras  High Court in Vasudeva Samiar In re (supra),  Coutts Trotter C. J. observing that he would be reluctant to differ from the Full Bench decision of the Calcutta High Court, and that  he  also  agreed with the reasoning on  which  it  was based.   The correctness of these decisions did not come  up for  consideration before the Judicial Committee,  as  their effect was promptly nullified by a further amendment of  the Letters Patent giving retrospective operation to the earlier amendment  of 1928.  But though these  decisions  themselves had  thus  been  rendered obsolete,  the  theory  enunciated therein of the right of appeal I in all its career’  vesting in  the  suitor  at  the  commencement  of  the  action  has continued to possess the field of law, until it has come  to be regarded as an established doctrine of our jurisprudence. For  the  reasons  already  given,  that  theory  cannot  be accepted as sound.  The decisions in Sadar Ali v. Dalimuddin (supra),  and Vasudeva Samiar In re (supra) which  expressed that  theory,  must  be  held  to  be  erroneous,  and   the contention of the petitioner based on those authorities that he  acquired on April 22,,1949, when he instituted the  suit in the Bapatla Sub Court, a vested right of appeal 562 to the Federal Court under the then law must be rejected.  But  that  does  not  exhaust all  the  hurdles  which  the petitioner  has  to  cross before he.  can  reach  the  Con- stitution   as  the  holder  of  a  vested  right,   seeking protection   for  the  same  therein.   Assuming  that   the petitioner  had,  as  decided in  Sadar  Ali  v.  Dalimuddin (supra),  a right of appeal to the Federal Court before  the Constitution came into force, did it survive there. after so as  to  be  capable of being exercised  there.  under?   The Federal  Court  was established by the Government  of  India Act,   1935,  and  when  that  Act  was  repealed   by   the Constitution,  the  Court  established  under  it  was  also abolished.   When  a  Court in which an  appeal  is  allowed itself  ceases to exist, the right of appeal ,to that  Court must  also  necessarily cease with it.  It is  not  disputed that  a right of appeal which is the creature of  a  statute can  also  be  taken away by it expressly  or  by  necessary intendment, and what clearer expression of such an intention can  there be than the abolition of the very Court to  which

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the ,appeal has to be taken ? How can you -exercise a  right of  appeal if the Court in which it has to be exercised  has disappeared  ?  This is the main ground of the  decision  in Veeranna  v.  Chinna Venkanna (supra), and  there  has  been practically no answer to it in the arguments before us.   It was  argued  that  that decision  proceeded  on  a  mistaken impression  that  the Privy Council had  decided  in  Canada Cement Co.  V. East Montreal (Town of) (1), that a right  of appeal must be held to be taken away when the:Court to which it lies is abolished, whereas it is argued that there was no question there of abolition of Court. The  facts in Canada Cement Co. v. East  Montreal (Town  of) (supra)  were that the suit was instituted in Court  A  (the Circuit  Court  of Montreal), and under the  Code  of  Civil Procedure which was then in force, decisions of Court A were appealable  in certain cases to Court B (Court  of  Review). While  the action was pending, a new law, 10 Geo..5  Ch.  79 (Quebec),  was  enacted,  and  that  Act  repealed  all  the sections in the (1)  [1922] 1 A.C. 140. 563 Code  providing for appeals from Court A. Section 42 of  the new  Act provided that Court C (Court of the  King’s  Bench) was to have jurisdiction in respect of all matters in  which an  appeal  lay  under the law.  After this  Act  came  into force,  the  suit was tried and decreed, and  the  defendant appealed under s. 42 to Court C. an That Court dismissed the appeal  as  incompetent,  and against  this  dismissal,  the defendant  preferred  an appeal to the  Privy  Council,  and there, the point for decision was whether an appeal to Court C  was competent.  The contention of the  respondent,  inter alia,  was  that  as the provisions of  the  Code  of  Civil Procedure  which  gave a right of appeal had  been  repealed before  the appeal was filed and the new Act which was  then in force gave no such right, the appeal was incompetent, and the Privy Council upheld this contention. I  shall have to refer to this decision again, when  I  deal with the question as to whether Art. 135 is applicable.   At this  stage,  it is only necessary to consider  whether  the criticism  of the petitioner that there was no  question  of abolition  of  Court in Canada Cement Co. v.  East  Montreal (Town  of)  (supra), and that the decision  in  Veeranna  v. Chinna Venkanna (supra) was mistaken in thinking that  there was,  is justified.  It is true that the judgment in  Canada Cement  Co’  v.  East Montreal (Town of)  (supra)  does  not mention that Court.  B (Court of Review) was abolished.  But nothing is mentioned in the judgment as to what happened  to that  Court.  It is probable that it was  abolished  because Court B was under the Code of Civil Procedure merely a Court of  under the and all the provisions in that Code  providing for appeals from Court A to Court B had been repealed,  and, instead,  s. 42 provided that Court C. was to hear  all  the appeals  which were. maintainable under the law.,  If  there was no jurisdiction left in Court B to hear appeals, then it must  have been abolished, it being only a Court of  Review. This  is  bow it was understood by Coutts  Trotter  C.J.  in Vasudeva  Samitia).  In re (supra), wherein It(,  summarised the effect of the decision thus: 564 By  10 George V, Chap. 79 (Quebec), the right of appeal  was transferred  from the abolished Court to the Appellate  Side of the Court of King’s Bench in Quebec, but no provision was made  for the transference of appeals which could have  lain to  the abolished Court to the newly  constituted  Appellate Court.  In these circumstances, their Lordships of the Privy

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Council  held that an appeal from the Circuit Court  to  the Court of the King’s Bench did not lie." But assuming that the Court of Review had not been abolished in  Canada  Cement Co. v. East Montreal (Town  of)  (supra), nevertheless,  the  principle that on the  ’abolition  of  a Court  the right of appeal to that Court must fall with  it, is  on its own reason and apart from the authority  of  that decision, unassailable and that principle ha; been  affirmed by  this  Court in Dajisaheb Mane and others v.  Sankar  Rao Vithal Rao Mane and another (1), where the position was thus stated : "If  the  Court  to  which  an  appeal  lies  is  altogether abolished without any forum substituted in its place for the disposal of pending matters or for the lodgment of  appeals, the vested right perishes no doubt." The petitioner -seeks to get over this obstacle by resort to Cl.  20  of the Adaptation of Laws Order,  1950,  which  was promulgated  by  the  President in exercise  of  the  powers conferred  by Art. 372 (2) of the Constitution.  It runs  as follows: " Nothing in this Order shall affect the previous  operation of,  or anything duly done or suffered under, any  ’existing law,  or  any  right,  privilege,  obligation  or  liability already acquired, accrued or incurred under any such law, or any penalty, forfeiture or punishment incurred in respect of any offence already committed against any such law." The contention of the petitioner is that the right of appeal which  he  had to the Federal Court in accordance  with  the decisions  in  Colonial  Sugar Refining  Company  v.  Irving (supra), Sadar Ali v. Dalimuddin (supra) and Vasudeva Samiar In re (suppa) is saved by (1)  [1955] 2 S.C.R. 872. 565 the  above  clause,  and therefore  the  provisions  of  the Constitution  must  be so construed as  to  effectuate  that right.   This argument proceeds on a misapprehension  as  to the  true character of the right, which the petitioner  had, assuming of course he had one.  That right was not a  right. in  gross to appeal to some Court which is superior  to  the High  Court.  It was a right to appeal to the Federal  Court against the decision of the High Court, and when that  Court was  abolished,  the right which the petitioner had  by  its very  nature  perished  with  that  Court,  and  there   was accordingly  nothing on which Cl. 20 could operate,  nothing which  could be kept alive by it.  It was argued  that  this Court does the work which previously was done by the Federal Court,  and  must,  in  consequence,  be  regarded  as   its successor,  and  that would attract the  operation  of  that clause.   This contention is clearly untenable.  This  Court was  established  by the Constitution, and is  a  new  Court deriving its jurisdiction and powers under the Constitution. Reference  might,  in  this  connection,  be  made  to   the following  observation  of Patanjali Sastri J. in  State  of Seraikella and other8 V.  Union of India and another (1): "  The Federal Court, in which the suits were  pending,  and which  had  exclusive jurisdiction to deal  with  them,  was abolished and a -new Court, the Supreme Court of India,  was created.  with  original jurisdiction  strictly  limited  to disputes relating to legal rights between States  recognised as such under the Constitution." Reliance  was placed by the petitioner on Art. 374(2)  under which  all proceedings pending in the Federal Court  at  the commencement  of  the  Constitution  stand  removed  to  the Supreme  Court,  but that itself shows that without  such  a provision  this  Court would have had no  jurisdiction  over

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those cases, and that really goes against the contention  of the  petitioner.  Reference was also made to Art. 375  which enacts that all the Courts in the territory of India are  to continue   to   exercise,their  function  subject   to   the provisions,of the Constitution.  But this provision  applies only to Courts., (1)  [1951] S.C.R. 474, 497. 566 which continued to function after the Constitution as before it.   It cannot apply to the Federal Court, which ceased  to function  under  the Constitution.  The net result  is  that even  if the petitioner had a vested right of appeal to  the Federal  Court,  that right perished with the  abolition  of that Court, and there was nothing which survived calling for protection under the Constitution.  In this view, the reason for  construing Art. 133 so as to restrict the  natural  and plain meaning of the language thereof disappears. I have so far assumed in favour of the petitioner that if he had a vested right of appeal it would be permissible to read into  Art. 133 words such as would save that right.  But  is that  assumption  right ? Can we import  into  that  Article words  which are not there ?  Now, there is no doubt as  to- the  law on the subject, It is the duty of a Court which  is called  upon  to  interpret  a  statute  to  ascertain   the intention of the legislature, and it has to do that from the Words actually used. " In a Court of Law or Equity, what the Legislature intended to  be  done  or not to be done  can  only  be  legitimately ascertained  from that which it has chosen to enact,  either in   express   words   or  by   reasonable   and   necessary implication." per Lord watson in Salomon v. Salomon and Co. Ltd. (1).   If the  words  used are clear and unambiguous,  the  Court  has merely to give effect to them: "  Where  the language of the Act is clear and  explict,  we must give effect to it whatever may be the consequences; for in that case the words of the statute speak the intention of the Legislature." per Lord Chief Justice Tindal in Warburton v.  Love.  land  (2).   And  where  the  intention  of   the Legislature  as expressed in the language of the statute  is reasonably clear, the Court would so interpret it as to give effect  to  that intention, notwithstanding that  the  words used are defective, and for that purpose, it could add words which  might have been omitted by mistake or accident.   But where the language of the enactment is clear and its meaning unmistakable, it is not permissible to read (1) [1897] A.C. 22, 38. (2) [1831] 2 Dow. & CI. (H.L.) 480, 489; 6 E.R. 806, 809. 567 into  it  a  new provision, which will have  the  effect  of enlarging  or  abridging its connotation.   Vide  Halsbury’s Laws of England, Hailsham Edition, Volume 31, pages 497  and 498, para 635.  Applying, these principles, the language  of Art. 133 is crystal clear and unambiguous.  Full effect  can be  given to it without reading into it any words which  are not   there,  and  according  to  all  settled   canons   of construction, therefore, it will not be permissible to  read into the Article words such as "instituted after the  coming into  force  of the Constitution." The objection to  such  a course is all the greater, when it is remembered that it  is a Constitution that we are interpreting. There is, on the other hand, good reason why the addition in question  should not be made.  Article 133 is the  provision of  law  under  which appeals can  be  preferred  under  the Constitution from judgments, decrees and final orders of the

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High  Courts  in the territory of India.  It is  under  this provision that appeals against judgments, decrees and  final orders of High Courts in Part.  B States lie to the  Supreme Court.   If  Art.  133  is to  be  restricted  to  judgments pronounced in proceedings instituted after the Constitution, then  what  is the provision of law under  which  an  appeal could  be taken from judgments of the High Courts in Part  B States  in suits instituted before the Constitution,  passed after  the coming into force thereof ? If the contention  of the petitioner is correct, then there is no provision in the Constitution  for appeal against these judgments,  a  result which is by itself sufficient, in my opinion, for  rejecting it.   None of the grounds put forward for putting a  limited construction  on  Art. 133 is, to my  mind,  convincing.   I would,  on  the  terms of the  Article,  hold  that  appeals against   judgments   and  decrees  pronounced   after   the Constitution will be governed by the provisions thereof, and that  accordingly if the petitioner has no right  of  appeal under  that Article, he cannot resort to Art. 135, which  is applic.  able only to matters which do not fall within  Art. 133. I have next to consider the contention that even if Art. 133 applies  to all judgments, decrees and final  orders  passed after the Constitution came into force, 73 568 the  present appeal cannot fall within its -purview,  as  it does  not satisfy the requirements laid down therein  as  to valuation, and that therefore it would fall under Art.  135. Now,  the words of Art. 135 are "with respect to any  matter to  which  the provisions of Art. 133 do  not  apply."’  The matter  to which the provisions of that Article apply is  an appeal  from any judgment, decree or final order made  in  a civil proceeding by a High Court in the territory of  India. When these conditions are satisfied, the matter falls within the ambit of Art. 133, and if a case which falls within  the ambit  of that Article fails to satisfy the conditions  laid down therein, it cannot be said that it is a matter to which the  Article  itself  is  inapplicable.   A  second   appeal presented  to  a  High  Court under  s.  100  of  the  Civil Procedure  Code  does not cease to be an appeal  under  that section,  because it does not disclose any grounds on  which the   Court  could  interfere  under  that   section.    The eligibility of a candidate to sit for an examination is  not destroyed by reason of the fact that he fails to get through the examination.  In the present case, the subject-matter of the intended appeal is the judgment of a Bench of the Andhra High Court, and that was given in an appeal against a decree passed  in a suit.  It therefore directly falls  within  the purview   of  Art.  133,  and  whether  it   satisfies   the requirements laid down therein or not, does not destroy  its character  as  a  matter to which  the  provisions  of  that Article apply.  If so, Art. 135 is inapplicable. There  is  another reason why we should not  accede  to  the contention  of  the  petitioner that  an  appeal  against  a judgment  or decree which would fall within the  purview  of Art.  133  should be held to go out of it when it  does  not satisfy   the   requirements,  contained,  therein   as   to valuation.   I Suppose that a judgment is passed  after  the Constitution,  by a High Court in a Part B State in  a  suit commenced  before  the Constitution, the value of  which  is over Rs. 10,000 but less than Rs. 20,000.  No appeal against it  would be competent under Art. 133 for want of  requisite valuation  nor  under  Art. 135,  because  that  relates  to matters  in  respect of which the Federal Court  could  have

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exercised 569 jurisdiction,  and  that Court had never  jurisdiction  over High Courts in Part B States.  Thus, after the Constitution, judgments  in the same class of suits, namely, suits’  whose valuation  is over Rs. 10,000 but less than Rs. 20,000  will be appealable if passed by a High Court in Part A State, but not by a High Court in Part B State.  What is the reason for this differentiation ?  There is, of course, no question  of discrimination  under Art. 14, as we are concerned with  the provisions  of  the  Constitution itself But can  we  put  a construction  which will deny citizens equality  before  law and  equal protection of law, unless compelled thereto ?  In fact,  some  of these States had a Privy Council,  and  Art. 374, sub-el. (4), provides that appeals pending before  them at the date of the Constitution shall be transferred to  the Supreme  Court,  thus assimilating them to the  position  of appeals pending before the Federal Court under Art.  374(2). Why then should we construe Arts. 133 and 135 in such manner as to lead to discrimination among suitors similarly  placed ? It would be more in consonance with the intendment of  the Constitution  to hold that Art. 133 applies to  all  appeals against  judgments, decrees or final orders passed in  civil proceedings after the Constitution came into force, and that if  an  appeal  is not maintainable thereunder,  it  is  not maintainable under Art. 135. The  matter  can  be  viewed from  another  angle.   When  a provision  of law confers a right of appeal  and  prescribes the conditions under which it can be exercised, there is, by implication, a negation of that right where those conditions are not satisfied.  There can be no difference in  substance between a provision which enacts that an appeal shall lie if certain  specified conditions are satisfied, and  one  which enacts that no appeal shall lie unless those conditions  are satisfied.  If Art. 133 had enacted that no appeal shall lie against the judgment or decree in a civil proceeding  unless the  requirements laid down therein are satisfied,  it  will not be argued, I presume, that Art. 135 will apply so as  to nullify the prohibition enacted in Art. 133.  In my opinion, the  same result will follow on the language of Art. 133  as it stands, and it should be construed as 570 enacting that no appeal shall lie unless the requirements of that Article are satisfied.  If it was the intention of  the legislature  that  an appeal should lie  against  judgments, decrees  and  final  orders  passed  in  civil   proceedings instituted  prior to the Constitution when the value of  the subject-matter  was Rs. 10,000 or above, nothing would  have been  easier than to say so, by enacting a proviso  to  that effect  to  Art. 133(1), which deals with that  category  of appeals,  and  not leave it to be gathered by a  process  of involved and debatable ratiocination.  In this view, even if there be a right of appeal vested in the petitioner prior to the Constitution as contended for by him, it Must be held to have been taken away by necessary implication by Art. 133. It  has been uniformly held in America that when a right  of appeal is given conditioned on the subjectmatter being of  a certain  valuation,  that provision must be  interpreted  as negativing  a  right of appeal where that condition  is  not satisfied.  In Durousseau v. United States (1), dealing with a provision providing for an appeal when the  subject-matter exceeded 2,000 dollars, Marshall C.J. observed: "...  the  Court implies a legislative  exception  from  its constitutional   appellate   power   in   the    legislative affirmative  description of those powers.  Thus, a  writ  of

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error  lies  to the judgment of a Circuit Court,  where  the matter  in controversy exceeds the value of  2,000  dollars. There  is no express declaration that it will not lie  where the  matter in controversy shall be of less value.  But  the Court considers this affirmative description as  manifesting the  intent of the Legislature to except from its  appellate jurisdiction  all  cases decided in the circuits  where  the matter in controversy is of less value, and implies negative words" The  rule thus laid down has been followed without  question in  American Courts.  The decision in Baltimore and  Potomac Railroad  Company v. J. H. Grant (2) is directly  in  point. There,  an  action claiming 2,250 dollars was  commenced  on December 6, 1875.  According to (1)  3 L. Edn. 232 at 234-235 ; 6 Cranch 307. (2)  98 U.S. 231 ; 25 Lawyer’s Edn. 231. 571 s.   847  of the Revised Statute which was then in force  an appeal  lay to a superior Court, if the value of the  matter in dispute was 1,000 dollars or more.  In 1879 a new law was passed  raising the valuation for the purpose of  appeal  to 2,500  dollars.  The question was whether the right  of  the defendant  to  appeal against the decree in the  action  was taken  away  by this legislation. Apart from  repealing  the prior Act, the  new Act was silent on the matter.It     was held,  following  the  principle  laid  down  in  Durousseau v.United States (supra), that the appealwas         not maintainable  as  the  provisions of the  new  Act  must  be construed as negativing the right of appeal if the value was less than 2,500 dollars. The decision in Canada Cement Co. v. East Montreal (Town of) (supra)  already referred to, is again another authority  in support of the same conclusion.  It will be remembered  that in  that case while proceedings were pending in Court  A,  a new statute was enacted, which dropped the provisions of the Code  of Civil Procedure then in force providing for  appeal from  Court  A to Court B and invested Court C  with  juris- diction to hear, all appeals which lay under the law.   With reference  to  jurisdiction exercised by Court B  under  the repealed  provisions  of  the Civil Procedure  Code,  s.  64 provided that, " Unless otherwise provided by this Act, all cases,  matters or  things which, at the time of its coming into force  were within the competence of the Court of Review shall be within competence    of  the  Court  of  King’s  Bench,  sitting  in appeal." This  corresponds  in  substance  to  Art.  135,  the,  only difference  being  that  instead  of  the  words  "   unless otherwise provided by this I Act ", we have " with reference to  any’ matter to which the provisions of Art. 133  do  not apply ". In holding that the appeal was not competent  under s. 64, the Privy Council observed: " Now this appeal had not been brought when the statute  was passed,  although, the proceedings before the Circuit  Court had  been  instituted.   Consequently  the  statutes  giving whatever right of appeal may have 572 existed were replaced by sections which gave none, and s. 64 of the Act which provided that matters within the competence of  the  Court of Review should be subject to the  Court  of King’s Bench, must be regarded as qualified by the provision that  the powers of the Court of Review with regard  to  the Circuit Court had been taken away, and consequently to  that extent the statute I had otherwise provided"’. According to the Privy Council, therefore, the replacing  of

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the  provision  of the Civil Procedure Code,  which  gave  a right  of  appeal, by provisions which gave none  was  other provision,  which  barred  resort to s.  64.   On  the  same reasoning,  it must be held that the applicability  of  Art. 135  is  barred,  by  the  provisions  of  the  Constitution abolishing  the  Federal  Court,  replacing  the  provisions relating  to  appeal  to  that Court by  Art.  133,  and  by adapting ss. 109 and 110 of the Civil Procedure Code on  the terms  of that Article.  Whether we construe the  provisions of  Art  133  as  negativing a right  of  appeal  where  the conditions  mentioned therein are not satisfied, or  whether we  regard  that  Article as covering  the  whole  field  of appeals against judgments, decrees and final orders in civil proceedings, the result is that the application of Art.  135 would  be excluded on the ground that the matter is not  one to which Art. 133 does not apply. The  question  was also raised in argument as to  the  exact connotation  of  the  word  " matter "  in  Art.  135.   The contention  of the petitioner is that it is a word  of  wide import, and willtake  in  judgments and decrees  in  all civil proceedings. That  may be conceded, but by its,  very nature, Art.135 applies only to proceedings to which Art. 133 does not apply and therefore appeals against  judgments, decrees  and  final orders in civil proceedings  would  fall ,within  it  only  when they have  been  passed  before  the Constitution  came into force but not  thereafter.   Article 135 will also apply to proceedings under special Acts,  such as appeals against orders passed under the provisions of the Indian Income-tax Act to which ss. 109 and 110 of the  Civil Procedure Code do not apply.  Having regard to the  contents of Art. 135and of ss. 109 and 110 as-adapted, 573 it may be stated that, broadly speaking, matters in  respect of which appeal would have been competent, under ss. 109 and 110  of  the Code will now be governed by Art. 133,  if  the judgment,  decree- or final order appealed against  is  made after  the  Constitution, and other matters,  by  Art.  135. But,  in -the view which I have taken that the present  case is within the purview of Art. 133 and Art. 135 is  therefore excluded, there is no need to express any decided opinion as to the true scope of the word "matter" in -Art. 135. The  result then might thus be summed up: The contention  of the petitioner that the proposed appeal does not fall within the  ambit  of  Art. 133 on the  ground  that  that  Article applies only to judgments, decrees and final orders pawed in proceedings instituted after the Constitution is  untenable, firstly  because it proceeds on the notion that a  right  to appeal  to the Federal Court has vested in the suitor  prior to the Constitution, for which there is no justification  on principle  or on the statute law of India; secondly  because it  involves  reading into the Article words which  are  not there and which restrict the plain meaning of the enactment: and  thirdly  because it will lead to the  anomalous  result that  there  will be no right of appeal  against  judgments, decrees  and  final orders made after  the  Constitution  in civil proceedings instituted prior thereto in the Courts  of Part B States, whatever their valuation.  The contention  of the  petitioner that appeals against judgments,  decrees  or final orders which would otherwise fall within the ambit  of Art.  133 must be held to fall outside that Article for  the reason that they have not the requisite valuation prescribed therein, and that, in consequence, they will be governed  by Art.  135,  is untenable, firstly because Art. 133  must  be construed  as  exhaustive of the law in respect  of  appeals when they are directed against judgments,- decrees or  final

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orders   in   civil  proceedings;   secondly   because,   by implication that Article must be interpreted as  negativinag any  appeal  which does not satisfy the requirements  as  to valuation  prescribed  therein; and  thirdly  because,  that would result in this discrimination that while appeals  will be competent against judgments, 574 decrees  or  final  orders made  in  proceedings  instituted before the Constitution when made by High Courts in  Part  A States,  no appeal will lie against judgments in like  suits instituted  in Part B States, though some of them  at  least had a provision for an appeal to an authority functioning as the Privy Council.  The correct interpretation to be put  on Art. 133 therefore is that it applies to all appeals against judgments, decrees and -final orders of- the High Courts  in the  territory of India made after the commencement  of  the Constitution  in civil proceedings, irrespective of  whether those  proceedings  were  instituted  before  or  after  the Constitution.   Such  an  interpretation  would  furnish   a simple,  clear and uniform law for the whole of  India,  and that  would  also avoid discrimination between  suitors  who instituted  actions prior to the Constitution and those  who instituted them after, and between those who have instituted proceedings  in Part A States and those who have  instituted proceedings in Part B States. In  this view, the present petition falls within  Art.  133, and  the. appeal must be held to be incompetent for  failure to satisfy the requirements of Art. 133 (1) (a).                        BY THE COURT. In accordance with the opinion of the majority of the Court, Special  Leave to Appeal to this Court is granted  on  usual terms.    The  Petitioner  will  have  the  costs  of   this application  from Respondents Nos.  I and 2. There  will  be stay  as prayed for in Civil Miscellaneous Petition No.  579 of 1956 until the determination of this appeal.                Special leave granted.   575