TMI Blog1940 (12) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... since the judgment was entered. 2. This view of its powers was re-affirmed by the Court in a case decided as recently as March last:Minnesota v. National Tea Company (1940) 309 US 551 at p. 555. Sulaiman, J. 3. The facts of the case are given in the judgment of my brother. I propose to consider separately a few points of law that have created difficulties. As would appear from the orders passed by the Federal. Court in this case on 5th March 1940 (formerly case No. 14 of 1939, reported in 3 FLJ 15,Lachmeshwar Prasad v, Girdhari Lal ('40) 27 AIR 1940 F C 26: the High Court after granting a certificate Under Section 205(1) of the Act (Government of India Act, 1935), declined to extend the time for making the deposit, required by Order 45, Rule 7, Civil P.C (Civil Procedure Code, 1908), and therefore did not admit the appeal. The appellants were, however, excused by this Court from compliance with so much of Order 10, F.C.R. (Federal Court Rules) as required them to get the record prepared and printed in the High Court, and to lodge their petition of appeal within sixty days of the admission of the appeal by the High Court. 4. The Bihar Money-Lenders Act (3 of 1938) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied and adapted, applicable to appeals to it. This Order 9, Federal Court Rules, governs the procedure when the matter is still before the High Court. Order 10, Federal Court Rules, which begins with the heading Procedure after admission of appeal deals really with the practice and procedure of the Federal Court. Rule 3 states that the petition of appeal is to be lodged in the Federal Court after the admission of the appeal by the High Court appealed from. 6. One result of Rule 17 having been added to Order 45, Civil P.C., by the Adaptation Order is that when the only ground of appeal stated in the petition is a constitutional one, even then like proceedings, except the security for costs, are to be had thereon as if a certificate Under Order 45, Rule 3 had been granted. The deposit of the amounts required to defray the expenses of translating, transcribing, indexing and transmitting a copy of the record, and also of the amounts required to defray the expenses of printing such copy within the prescribed time, still remains necessary Under Rule 7. A necessary consequence is that Under Rule 8, the High Court, after the deposit has been made to its satisfaction, has to decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Privy Council that the respondent has received notice or is aware of the order of the Court appealed from admitting the appeal, and in case of failure, it is the Registrar of the Privy Council who calls for an explanation, and the appellant may have to show cause before the Privy Council. Under Rule 29 the petition of appeal is to be lodged after the arrival of the record in England. Rule 30 requires that the petition of appeal should recite the principal steps in the proceedings down to the admission of the appeal. Under Rule 32, even if the appeal is desired to be withdrawn before the lodging of the petition of appeal, notice has to be given to the Registrar of the Privy Council and not direct to the Registrar of the High Court. Rule 43 also shows that the admission of the appeal is regarded as a crucial stage. As already pointed out Order 10, Federal Court Rules, also was intended to apply to the stage after the admission of the appeal and Rule 3 requires the lodging of the petition of appeal after the admission of the appeal by the High Court. 10. It would therefore appear that the admission of the appeal by the High Court is its final judicial act, after which it must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 45, Civil P.C., which contemplate the admission of the appeal by the High Court before the record is transmitted to this Court, and the petition of appeal is lodged here. In my order dated 5th March 1940, I had said: There was no absolute necessity to make the whole of order 45, Civil P.C., applicable to Federal Court appeals, even where the only ground taken wore a constitutional one. 13. I would now go further and say, with the utmost respect, that it was a mistake to make the whole of Order 45 applicable to a case where a certificate Under Section 205(1) of the Act has been granted. Order 45 has not been made applicable to appeals which lie independently of Section 109, for instance an appeal by special leave to the Priyy Council. In the same way it should not have been applied to a case where there is a statutory right of appeal Under Section 205 of the Act. Cases where an appeal would lie by virtue of Section 109, Civil P.C., would be different, because that section itself confers such a right of appeal subject to the provisions hereinafter contained , including order 45. In such cases the right of appeal can be exercised only in accordance with the procedure prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance could have made if: the case had been heard by him at the date on which the appeal was heard. 15. It was in that view that I had preferred to base my judgment first on the ground that Section 16 of the old Bihar Money-Lenders Act, which had been impugned, was in fact not void, and that the High Court's view on that point was, in my opinion, not correct. Dr. Asthana, the Advocate-General off the United Provinces, on the other hand has urged that we are bound to apply Section 7 of the new Bihar Act, which has replaced the old Section 11. The decree of the High Court is not yet final, as an appeal is pending before us. The adjudication of the rights of the parties as made by the High Court is not yet final. If we allow the appeal on any of the other grounds, we would be bound to remit the case to the High Court, in which event the High Court would be bound to comply with the provisions of Section 7 of the new Bihar Act. When the case goes back, the proceedings before the High Court would still be in appeal from an inferior Court, even though the case has been remitted by the Federal Court. Although the provision no Court shall... pass a decree, etc, does affect the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a alone. The plaintiffs released Debindra and his sons from all liability and sued to enforce the mortgage against the half share of Birendra and his sons. They had claimed only one-sixth share of the total amount, because the plaintiffs had inherited only two-sixth share in the mortgage deed, the rest having gone to the defendants. The integrity of the mortgage had been broken, and the plaintiffs had discharged one of the mortgagors, and splitting up the liability, were suing the other for his share only. It was not even known how much interest had already been realized from the exempted mortgagor Debindra. It was in these circumstances that the liability of the contesting defendants was considered separately, and it was remarked at p. 57: It could not have been the intention of the Legislature that if there are several executant who have borrowed various sums and the creditors sues one of them for his separate share only, having already realized the balance from the others, then the maximum prescribed for the amount of interest to be decreed against him is not to exceed the aggregate of the various sums borrowed by him as well as all the other pro forma defendants, who are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same so as to mean a ground of objection. This would make the second category read as 'on any ground of objection on which that party could have appealed to His Majesty in Council'. In the Code of Civil Procedure, there is a clear distinction between a case in which there is a right of appeal and the grounds which can be taken when an appeal lies. Sections 109 to 111, Civil P.C., deal with the cases in which appeals lie to His Majesty in Council, and not with the grounds which can be taken when an appeal has lain. On the other hand, Order45, Rule 3, Civil P.C., refers to the grounds of appeal which must be stated in the petition for leave to appeal to His Majesty in Council. If the word ground in the second category were to mean ground of objection, then that would entitle an appellant, once an appeal has come to the Federal Court on account of the certificate on a constitutional question, to raise all grounds of objection which he could have raised in an ordinary appeal to His Majesty in Council. He would be entitled to urge these as of right without being hampered by the provisions of Order 45, Civil P.C. 21. On the other hand, it is probable that the intention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant to evade these provisions by simply obtaining a certificate Under Section 205(1) of the Act, and then asking for leave to raise all the other grounds by bringing them within the third category. This last category refers to other grounds, which must mean other than those mentioned in the first and second categories. In view of the cumulative sense of the conjunction 'and' which has been used instead of 'or' in the alternative sense, the position of the respondent who files a cross-appeal direct, in the Federal Court is still more difficult. It is however not absolutely necessary to settle the interpretation of the word ground finally, because I agree with my brother that on the merits the defendants' plea must fail even if we hear it. I concur in the order proposed. Yaradachariar, J. 23. The present case is one of a number which have lately come before this Court from Patna and in which questions have been raised under the Money-Lenders Acts passed in Bihar in 1938 and 1939. In a mortgagee's suit for recovery of money by sale of the mortgaged property, the principal defendants (defendants 1 to 6 raised contentions questioning the validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lenders Act of 1938 and substantially re-enacted it as Act No. 7 of 1939, taking certain precautions which were required to obviate the objections to the validity of the earlier Act. 26. In view of the earlier decisions of this Court in similar cases, counsel for the appellants rightly assumed that his clients would be held entitled to the benefit of Section 7 of the new Act of 1939, though it had been enacted only after the date of the decision of the High Court in this case ; and, on that assumption, he raised a contention as to the manner in which the maximum amount of interest for which his clients could be held liable should be fixed in the particular circumstances of the case. Counsel for the respondents recognized that the decisions of this Court entitled the appellants to claim the benefit of the Act of 1939, but he was permitted to re-argue the question as he suggested that certain relevant considerations had not been urged or dealt with on previous occasions. It, however, seems to me that the considerations now urged by him have in substance been taken into account in the earlier cases, though the language employed might not have stated them in the particular form in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantial effect of both forms is the same? 29. It does not however seem to be necessary for the purpose of this case to express a final opinion on the question just discussed, because, even assuming that this Court is not directly bound by the provisions of the Bihar Act, the appellants will still be entitled to claim that this Court is bound to pronounce the judgment which the High Court would have pronounced, if it were hearing the appeal at this moment. There can be no doubt that if the High Court at Patna had now to deal with this case, it would have to govern itself by the provisions of Section 7 of the Act of 1939. Sir Brojendra Mitter argued that before the passing of the Act of 1939, the decree of the High Court in the present case had become final, and that the High Court would Under Section 209, Constitution Act, have to deal with the present case again only if this Court allowed the appeal, but that there was no justification for this Court allowing the appeal, unless it could say that the decision of the High Court was incorrect even according to the law as it stood at the time when the decision was given. I am unable to agree that that is the correct position. 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal is under the processual law of this country in the nature of a re-hearing. The Indian Codes have from 1859 conferred upon a Court of appeal the power given by Order 58, Rule 4, Supreme Court Rules to allow further evidence to be adduced; and though the English rule does not in terms impose the same limitations on this power as the Indian Codes do, these limitations are implied in the reference to special grounds in the English rule and have in effect been insisted on even in England as a matter of practice: see Nash v. Rochford (1917) 1 KB 384. In view of these provisions, it seems to me to make no difference that it is not explicitly stated in the Indian statutes (as in Order 58, Supreme Court Rules that an appeal is by way of re-hearing. It is also on the theory of, an appeal being in the nature of a re-hearing that the Courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account, even facts and events which have come into existence after the decree appealed against. I may also refer to Kanaiayya v. Janardhana Padhi ('10) 36 Mad 439 at pp. 441 444 where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble up to the date of the institution of the suit must be held to be only the sums of ₹ 34,492-11-6 and ₹ 4949-8-0, that is, the sums which have been held to be the debts binding on the joint family out of the sums borrowed under the mortgage bonds. This contention is in my opinion untenable. Section 7 of the Act mentions three limits: (1) the amount of loan advanced (2) the amount of loan mentioned in the document and (3) the amount of loan evidenced by such document. It is not necessary for the purpose of this case to consider what is to happen when the amounts calculated on these several cases differ; for it has been found in this case that in respect of both the bonds, the full amounts specified therein, viz., ₹ 45,000 and ₹ 15,000, had in fact been advanced or were otherwise due. It is again unnecessary to consider the situation which might arise if it should be found that part of a loan had been advanced for illegal or immoral purposes in the sense in which those expressions are used in the general law of contracts. The finding in the present case that out of the sums due under the bonds only ₹ 34,492-11-6 and ₹ 4949-8-0 respectively we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sixth of ₹ 79,000. The decision did not purport to deal with a case where out of the amount found to have been advanced to the particular debtor only a smaller sum was held to have been required for family necessity, so as to make that sum alone recoverable from out of the joint family property of the borrower and his sons. 37. Out of the items of principal allowed by the High Court in plaintiffs' favour, on their memorandum of objections, exception was taken by the appellants here to the allowance of the sum of ₹ 4805-11-6, a portion of the consideration of the first mortgage bond. They alleged that that sum was utilized for the satisfaction of an earlier mortgage for ₹ 6000, and that a portion of the consideration of this earlier bond was in its turn utilized for the satisfaction of a debt due to the plaintiffs under three hand-notes executed by defendant 1. The trial Court had disallowed this item on the ground that the moneys borrowed had been taken by defendant 1 for the purposes of an unnecessary and improper litigation, and that the debt was to that extent an avyavaharika debt for which the family property could not be held liable. The High Court r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, Civil P. C., before a party can raise before this Court any question besides the one covered by the certificate Under Section 205(1), Constitution Act. As the appellant have failed on the merits in respect of the question of fact sought to be raised by them, it is unnecessary to express any opinion in this case on this point of processual law. The other question relates to the effect of the absence of an order by the High Court (Under Order 45, Rule 8, Civil P.C.) declaring the appeal admitted. My learned brother has discussed this point at some length; but as no arguments bearing on this question were advanced at the Bar, I shall content myself with a few observations. 41. Though the scheme of Order 45 implies that, till the High Court makes the order Under Rule 8, it still retains a measure of control over the proceedings, it does not appear to me that such an order is a condition precedent to the exercise of jurisdiction by this Court. The collocation of para (a) of Rule 8 of Order 45 with paras (b), (c) and (d), which relate to notice to the respondents, transmission of the records and the delivery of a copy of the records to the respondents, is not without significance ; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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