NARAIN DAS versus THE STATE OF UTTAR PRADESH

RAGHUBAR DAYAL J.-Na.rain Da.s filed civil writ p<'tition under Art. 226 of the Constitution in the High Court of Judicature at Allahabad. He subsequently moved an application under s. 4 76 of the Code of Criminal Procedure (hereinafter called the Code) for making a complaint under s. 198, Indian Penal Code, against Phanish Tripathi alleging that a certain statement in an affidavit filed by the latter was false. The learned Judge who heard this application, holding that the appellant had riot succeeded in showing that any portion of the affidavit of Tripathi filed on May 14, 1959, was false, dismissed the same. It is against this order of the learned Judge of the High Court that Narain Das has filed this memorandum of appeal under s. 476B of tho Code. The Registry has submitted the memorandum of appeal with a report for determining the question whether the app~al is competent in this Court.

p. 677

Section 476 of the Code is to be found in Ch. XXXV which is headed ' Proceedings in case of certain Offences Affecting the Administration of Justice '. Section 476 empowers any Civil, Revenue or Criminal Court, when it is of the opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in s. 195(1) (b) or (c) which appears to have been committed in or in relation to a proceeding before it, to file a complaint, after such inquiry as it thinks necessary, before a. Magistrate of I Class having jurisdiction. It is clear therefore that where an offence referred to in s. 195(1) (b) or (c) is committed in or in relation to a proceeding in a. Civil Court, a.n inquiry under s. 476 a.nd the action taken on that inquiry by the Civil Court, a.re in relation to that proceeding itsdf.

pp. 677–678

Any person aggrieved by an order c1f a Court under s. 476 of the Code may appeal in view of s. 476B to the Court to which the former C'ourt is subordinate within the meaning of s. 195(3), which providPs that for the purposes of t.he section Court she.II be deemed to be subordinate to the Court to which a.ppee.ls ordinarily lie from the appealable decrees or sentences of such former Court, or, in the case of a Civil Court from whose decrees no appeal ordinarily lieR, to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate. The decrees of a single Judge. of the High Court exercising ci\·il jurisdict,ion are ordinarily appealable to the High Court under cl. IO of the Letters Patent of the Allahabad High Court read with cl. 13 of the United Provinces High Courts (Amalgamation) Order, 1948. It is true that the decision of a single ,Judge of the High Court is as much a decision of the High Court as the decision of the appellate Bench hearing appeals against his decrees. But the Court constituted by the single J u<lge is a Court subordinate to the O.J'pellate Hench of the High Court. in view of the artificial judicial subordination created by the provisions nfs. 195(3) to the etTeot 'a Court shall be deemed to be suhordinate to the Court to which appPals ordi11arily lie from the appealable decrees ... '. In the case of a Civil Court which passes appealablo decrees, that Court is deemed to be 8ubor<linate to the Court to which appeals ordinarily lie from its decrees. In the case ofa Civil Court from whose decrees no appeal ordinarily lies, that Court is deemed subordinate to the principal Court. having ordinary original civil jurisdiction within the local liruits of whose juriijdiction the former Court is situate, e\·en though normally such a Court will not bo subordinate to the principal Court having ordinary original civil jurisdiction within whose local limits it is situate.

p. 678

It was urged by the learned Advocate• for Narain Das that the order of the learned single Judge under s. 4 76 did not amount to a decree and that therefore the provisions of s. 195(3) were not applicable. It is not necessary for us to express an opinion on the question whether the order of t.he learned single Judge un\}er s. 476 is appealable under cl. IO of the Letters Patent or not. A right of appeal against that order is given by the provisions of s. 476 B. The forum of appeal is also determined by the provisions of s. 476B read with s. 195(3), and the only ·relevant consideration to determine the proper forum for an appeal against such an order of the single Judge is as to which Court the appeals against appealable decrees of the single J ndge ordinarily lie. Such appeals lie to the High Court under cl. IO of the Letters Patent of the Allahabad .High Court, and therefore this appeal lies to the High Court.

pp. 678–679

Learned counsel for the appellant relied on the decision of this Court in M. S. Sheriff v. The State of Madras(') in support of his contention that an appeal under s. 476B lay to this Court from the decision of a single Judge of a High Court refusing to file a complaint under s. 476 of the Code. That case is distinguishable as the question considered in that case was whet.her an appeal lay to this Court under s. 476B of the Code from an order of a Division Bench of a High 0,ourt. It did not deal with the question whether an appeal lay to this Court under s. 4 76B of the Code from an order of a single Judge of the High Court. No appeal lies to the High Court against the decision of a Division Rench of the High Court and therefore an appeal under s. 4 76B from an order of the Division Bench of the High Court must lie to this Court.

p. 679

The fact that an appeal lies to this Court from the order of a single Judge of the High Court where the High Couvt certifies, under Art. 132 of the Constitution, that the case involves a substantial question of law as to. the interpretation of the ConstitutioJJ, is of no assistance to the appellant's contention that this appeal is competent in this Court. It cannot be said that an appeal ordinarily lies to this Court from the judgment of a. single Judge of a. High C'ourt bees.use such an a.ppea.l lies with a certifica.te gra.nted under Art. 132.

pp. 679–680

We therefore hold tha.t the present a.ppca.I does not lie to this Court and that it liPs to the High Court of Jndica.ture a.t Allahe.ba.d. We therefore direct tba.t the memora.ndum of appea.l be returned for presentation to the proper Court.

p. 680

.Appeal incompetent. lSHEW BUX MOHATA AND OTHERS

p. 680

v. BENGAL BREWERIES LTD. AND OTHERS A. K. e.nd

p. 680

JJ.)

p. 680

Execution proceedings-Delivery of possession acknowledged- Execution case dismissed-If f11rther execution proceeding permissible-Purchaser of rest.ondent's interest-Whether could added party-Code of Civtl Proced1ire, (5 of 0. r. s. 146.

p. 680

The appellant decree-holders in an execution proceeding accepted delivery o! possession and granted a receipt to the Nazir o! the Court acknowledging lull delivery o! possession to 'them but allowed the respondents, Bengal Breweries, to remain in possession with their permission. The appellant also permitted the execution case to be dismissed on the basis that lull possession had been delivered to them by the respondents. Sometime thereafter the appellant made a fresh application for execution against the respondent, for eviction which was resisted under . s. of the Civil Procedure Code alleging that so !ar as they were concerned, the decree had been fully executed as a result of the earlier execution proceeding which had terminated, and that further execution was not permissible in law.

p. 680

Held, that it is open to the decree-holder to accept delivery o! possession under 0. r. 35, o! the Code o! Civil Procedure without actual removal o! the person in possession. II he does that then he is bound to the position that the decree has been fully executed, and it cannot be executed any more.

p. 680

Held, further, that on the principle in Soila Bala Dassi v.

p. 680