SHRI DURGA PRASAD & ANOTHER versus THE BANARAS BANK LIMITED

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 ad vertlsed for sale two houses which formed part of the assets of r he Bank. Roshan Lal the ·second appellant made an offer to purchase the two hou~es 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" oft he 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 'i1rrender the two houses and to re-transfer 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 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 under cL IO of th~ Letters Patent by a Division Bench of the High Court. The High Court, however, certified the case under Art. 33 (l) of the Constitution for appeal to thi! Court. The High Court observed:

pp. 477–478

"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 ,000{- and, in view of the decision of this Court in Shri Deoki NatJan v. Sf.are of Ultar Praduh ), the applicants are entitled as of right to a certificate under Article 133 ( l) of the Constitution without an additional certificate that the case gives rue to a substantial question of law. The requisite certificate will accordingly issue."

p. 478

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.

p. 478

In Declci Nandan v. Stale of Ultar Praduh (') the Allahabad High Court held.

p. 478

"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.

p. 478

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 th Constitution lies as a matter of right under Art. 133 (1) of the Consti· tution, if the claim is in respect of property of a value in excess of Rs. 20,000/- and it u not nec,ssary that the case should give rise to a

pp. 478–479

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 Miaaer ('), 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. 596 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 Jud_icial Committee observed :

p. 479

'·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 docu· mentary _evidence submitted to them. That being so, the present appeal cannot be ente~­

p. 479

tained." In Probhawati K unwar v. Panmal Lodha ('), 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 Jaiswal v. The Karnal Distillery Company Ltd. ('), 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 Gou,rt hearing an appeal against his jud~ment under t}je Letters Patent. It was observed in that case that the expression 'Court immediately hflow' used in Art. 133 (I) (a) doe~ 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 wa, 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 properfy made. ·

pp. 479–480

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 arc of the view, having regard to all the circumstances, that this is not a fit case for granting leave to appeal.

p. 480

The appeal is therefore dismissed. There will be no order as to costs.

p. 480

A ppea/ disniis&ed.

p. 480