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PETITIONER: SHRI DURGA PRASAD & ANOTHER

       Vs.

RESPONDENT: THE BANARAS BANK LIMITED

DATE OF JUDGMENT: 21/12/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1322            1964 SCR  (1) 475  CITATOR INFO :  R          1971 SC 658  (6)  R          1972 SC1903  (14,16)  R          1973 SC1252  (17)

ACT: Supreme   Court,  Appellate   jurisdiction   of-Certificate, granted  by  High  Court,  if  Competent-’Court  immediately below’--Meaning of-Constitution of India, Art. 133 (1).

HEADNOTE: The  Official Liquidator of the respondent  Bank  advertised for  sale,  the  two houses belonging to  the  Bank.   These houses  were sold to the second appellant with the  sanction of  the court.  The second appellant thereafter  transferred the houses to the first appellant reciting in the deed  that the  latter was the real owner and that the sale  deed  from the  Official Liquidator was obtained benami for  him.   The Official Liquidator moved the High Court at Allahabad for an order declaring the sale null and void and for an order  re- transferring the houses to the Bank.  A 476 single judge of the High Court held that the first appellant being  at  the material time a member of  the  committee  of inspection  and  he  having  suppressed  that  interest  was precluded from buying the property of the Bank and  directed the  first appellant to convey the houses  to  the  Official Liquidator  of  the  Bank.  This order was  confirmed  by  a Division  Bench of the High Court in appeal under cl. 10  of the Letters Patent.  The High Court then certified the  case under  Art.  133 (1) (a) of the Constitution ,or  appeal  to this  Court.  It was urged at the hearing of the  appeal  on behalf  of  the  Official Liquidator  that  the  appeal  was incompetent, for the High Court had no jurisdiction to grant the  certificate under art. 133 (1) (a) of the  Constitution without certifying that the appeal involved some substantial question of law. Held,  that  under  Art. 133 (1)  of  the  Constitution  the expression ’Court immediately below’ has not the same conno- tation  as  the expression ’Court subordinate  to  the  High

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Court’ and as the judgment of the Single judge was  affirmed in  appeal,  the appeal to the Supreme Court  could  not  be entertained with a certificate under Art. 133 (1) (a) unless it was certified that it involves some substantial  question of law. Deoki  Nandan  v. -State of U. P., A. 1. R.  1959  All.  10, reversed. Toolsay  Persaud  Bhuckt v. Benayek Misser (1896) L.  R.  23 I.A. 102, Probhawati Kunwar v. Panmat Lodha, (1941) 45  Cal. W. N. 1002, referred to. Ladli  Prasad Jaiswal v. The Karnal Disttillery  Co.  [1964] Vol. I S. C. R. 270, relied on.

JUDGMENT: CIVIL APPELLATE JURTSDICTION: Civil Appeal No. 569 of 1960. Appeal from the judgment and decree dated September 9, 1958, of  the  Allahabad High Court in Special Appeal No.  214  of 1956. Ranganadham  Chetty,  A. V. Rangam, A. Vedavalli and  M.  I. Khowaja, for the appellants. G.S. Pathak and G. C. Mathur, for the respondent.  477 1962.  December 21.  The judgment of the Court was delivered by SHAH  J.-The Banaras Bank Ltd-hereinafter called ’the  Bank’ was  directed to be wound up by order of the Allahabad  High Court.   A  committee of inspection was appointed  under  s. 178-A  of  the Indian Companies Act, 1913 to  act  with  the Official Liquidator, and one of the members of the Committee was  Durga Prasad the first appellant in this  appeal.   The Official  Liquidator  advertised for sale two  houses  which formed  part  of  the assets of the Bank.   Roshan  Lal  the second  appellant made an offer to purchase the  two  houses for  Rs. 18,000/-.  This offer was accepted by the  Official Liquidator and with the sanction of the Court the two houses were  sold  to  Roshan Lal on August 2,  1941.   Roshan  Lal thereafter  transferred the houses to Durga Prasad  reciting in  the  deed that the latter was "the real  owner"  of  the houses  and that the sale deed from the Official  Liquidator was obtained by him "benami’ for Durga Prasad.  On coming to learn  about this conveyance, the Official Liquidator  moved the  High Court of Allahabad for an order that the  sale  be declared null and void and that Durga Prasad be called  upon to  surrender the two houses and to retransfer the  same  to the  Bank.   The  High Court held that  the  sale  deed  was obtained by Durga Prasad who was the real purchaser, that he had suppressed his interest in the purchase, and that  being a  member of the committee for inspection, qua the  Bank  he occupied  the position of a trustee and was on that  account precluded  from. buying the property of the Bank.  The  High Court accordingly directed Durga Prasad to covey the  houses to  the  Official Liquidator of the Bank.   This  order  was confirmed in appeal tinder cl. 10 of the Letters Patent by a Division Bench of the High Court.  The High Court,  however, certified the case under Art. 33 (1) of the 478 Constitution  for  appeal  to this Court.   The  High  Court observed :               "It  is  not in dispute that the  judgment  of               this  Court involves directly or indirectly  a               claim  respecting property of a value  of  not               less  than  Rs. 20,006/- and, in view  of  the               decision of this Court in Shri Deoki Nandan v.

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             State of Uttar Pradesh (1), the applicants are               entitled  as of right to a  certificate  under               Article 133 (1) of the Constitution without an               additional  certificate  that the  case  gives               rise  to a substantial question of  law.   The               requisite certificate will accordingly issue." At  the hearing before this Court counsel for  the  Official Liquidator submitted that the appeal is incompetent, for the High  Court  had no jurisdiction to  grant  the  certificate under   Art.  133  (1)  (a)  of  the  Constitution   without certifying   that  the  appeal  involved  some   substantial question of law.  In our view this contention must succeed. In Deoki Nandan v. State of Uttar Pradesh the Allahabad High Court held.               "The  words  ’the  Court  immediately   below’               within  the meaning of cl. (1) of Art. 133  of               the  Constitution must be a court  other  than               the  High  Court.  A single judge  of  a  High               Court  is not a court subordinate to the  High               Court.               An  appeal  against an order of  an  appellate               Bench  of the High Court dismissing an  appeal               from  an order of a single judge of the  Court               on  its  original side  rejecting  a  petition               under  Art. 226 of the Constitution lies as  a               matter  of  right under Art. 133  (1)  of  the               Constitution,  if the claim is in  respect  of               property of a value in excess of Rs.  20,000/-               and it is not               (1)   A.1 R. 1959 All, 15.                                    479               necessary  that the case should give  rise  to               a substantial question of law." But the expression "court immediately below’ in Art. 133 (1) has  not  the  same connotation  as  the  expression  ’court subordinate to the High Court.’ In Toolsey Persaud Bhuckt v. Benayek  Misser  (1),  the Privy  Council  appears  to  have expressed  the  view  that a single judge of  a  High  Court trying an original proceeding was a court immediately  below the  High Court hearing an appeal under the  Letters  Patent from  his judgment and therefore an appeal under S.  696  of the  Code of Civil Procedure Act XIV of 1882 (of  which  the terms were in substance identical with the terms of Art. 133 (1)) could be certified for appeal to the Privy Council only if a substantial question Of law was involved.  The judicial Committee observed               "Their  Lordships  think that no  question  of               law, either as to construction of documents or               any other point, arises on the judgment of the               High  Court,  and that  there  are  concurrent               findings  of the two Courts below on the  oral               and  documentary, evidence submitted to  them.               That  being SO, the present appeal  cannot  be               entertained. In Probhawati Kunwar v. Panmal Lodha (2), the High Court  of Calcutta held that an appeal to the Privy Council cannot  be certified  if  the  High Court confirms the  judgment  of  a single  judge  trying  an  original  proceeding,  unless  it involves  a substantial question of law.  In a  recent  case Ladli  Prasad Jaisuul v. The Karnal Distillery Company  Ltd. (3),  this Court held that a single Judge hearing  a  second appeal under S. 100 of the Code of Civil Procedure, 1908  is for  purposes of Art. 133 (1) the Court immediately below  a Division  Bench of the High Court hearing an appeal  against his  judgment under the Letters Patent.  It was observed  in

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that case that (1) (1896) L.R. 28 I.A. 102. (2) (1941) 45 Cal, W..N. 1002. (3) [1964] Vol, I s.C.R. 270. 480 the  expression ’Court immediately below’ used in  Art.  133 (1)  (a) does not mean Court subordinate to the High  Court. "A Court subordinate to the High Court is a Court subject to the  superintendence  of  the High Court,  whereas  a  Court immediately  below  is  the Court from  whose  decision  the appeal  has been filed." In that case  the  Attorney-General appearing  for the respondents conceded that a single  judge of  a High Court trying a suit or proceeding as a  court  of original jurisdiction was a court immediately below the High Court  hearing  an  appeal  from  his  decision-and  it  was observed  in the judgment of this Court that the  concession was properly made. In  the  appeal before us, the judgment of  the  High  Court affirms the judgment of the single judge and the High  Court has  not certified that the decision appealed from  involves any   substantial  question  of  law.   The  appeal   cannot accordingly  be  entertained.   Counsel  for  the  appellant requested  that in any event special leave to  appeal  under Art. 136 of the Constitution be granted. But  we are  of the view, having regard to all thecircumstances, that  this is not a fit case for granting leave to appeal. The appealis  therefore  dismissed.  There will  be  no order as to costs.                                           Appeal dismissed.  481