A.L.S.P.P.L. Subramanian Chettiar by Agent Narayanan Chettiar vs Muthuswami Goundan alias Avanashi Goundan

Alfred Henry Lionel Leach, C.J.—This is an application for leave to appeal to the Federal Court from an order of Wadsworth, J., which

involves a substantial question of law as to the interpretation of the Government of India Act, 1935. The application is opposed and it is necessary

to set out the course of events preceding the order of the learned Judge and to examine the provisions of the Act and the amendments which have

been made to the CPC by the Government of India (Adaptation of Indian Laws) Order, 1937.

On the 21st November, 1934, the petitioner obtained a money decree for Rs. 7,569-0-9 with interest and costs against the respondent in the

Court of the Subordinate Judge of Coimbatore. At that time the Madras Agriculturists'' Relief Act had not been placed on the statute book. It

came into force, however, on the 22nd March, 1938, and in accordance with its provisions the judgment-debtor applied for an order scaling down

the decretal amount. His application was granted and as the result of the investigation it was found that taking into-account the scaling down

provisions the debt had been completely discharged. Consequently the judgment-debtor applied to the Subordinate Judge for an order directing

full satisfaction to be recorded and this application was granted. The petitioner then applied to this Court to revise the Subordinate Judge''s order

on the ground that the Madras Agriculturists'' Relief Act was ultra vires the powers of the Provincial Legislature and to set aside the order for

scaling down and the order directing satisfaction to be recorded.

The application for revision came before Wadsworth, J., on the 2nd May, 1939. By that time the question of the validity of the Madras

Agriculturists'' Relief Act had been considered by a Full Bench of this Court in Mada Nagarathnam v. Puvvada Seshayya (1939) 1 M.L.J. 272 :

ILR (1939) Mad. 151 . The Full Bench held that the Act was intra vires the powers of the Provincial Legislature. As he was bound to do in the

circumstances, Wadsworth, J., dismissed the revision petition, but as it involved an important question as to the interpretation of the Government of

India Act, 1935, he granted a certificate u/s 205(1) of the Act. It is in respect of that order of dismissal that the petitioner wishes to appeal to the

Federal Court. The respondent says there is no appeal from the order of a single Judge of a High Court and in this connection relies on the

provisions of Section 111(a) of the Code of Civil Procedure. An examination of that section fails to reveal any support for the argument.

Section 205(1) of the Government of India Act reads as follows:

An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the

case involves a substantial question of law as to the interpretation of this Act or any order in Council made thereunder, and it shall be the duty of

every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or to

withhold a certificate accordingly.

(2) Where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any such question as aforesaid has

been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such

certificate had been given, and, with the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council,

either with or without special leave.

The effect of this section is this. Where a High Court has certified that a judgment, decree or final order passed by it involves a substantial

question of law as to the interpretation of the Act, the dissatisfied party has the right of appeal to the Federal Court. If the case involves the amount

of Rs. 10,000 or more and otherwise complies with the conditions regarding appeals to His Majesty in Council under the Code of Civil Procedure,

then the Federal Court is empowered to hear and decide all the questions arising in the appeal. If the Federal Court were not empowered to deal

with all the questions in such a case it would mean that there would be an appeal to the Federal Court on the question of interpretation of the

statute and an appeal to the Privy Council on the other points in the case. It will be observed that the section also provides that the Federal Court

can itself give special leave on other points.

By the Government of India (Adaptation of Indian Laws) 1 Order, 1937, two additions were made to the Code of Civil Procedure. The first is

the insertion of Section 111-A which reads as follows:

Where a certificate has been given u/s 205(1) of the Government of India Act, 1935, the three last preceding sections shall apply in relation to

appeals to His Majesty in Council, and accordingly references to His Majesty shall be construed as references to the Federal Court:

Provided that

(a) so much of the said sections as delimits the cases in which an appeal will lie shall be construed as delimiting the cases in which an appeal will lie

without the leave of the Federal Court otherwise than on the ground that a substantial question of law as to the interpretation of the said Act, or any

order in Council made thereunder, has been wrongly decided.

(b) in determining under Clause (c) of Section 109 whether the case is a fit one for appeal, and, u/s 110, whether the appeal involves a substantial

question of law, any question of law as to the interpretation of the said Act, or any order in Council made thereunder, shall be left out of account.

The object of this section is to bring the CPC into line with Section 205 of the Government of India Act. The two provisoes make it perfectly

clear that nothing in the Code shall be read as affecting the right given to a party to appeal to the Federal Court under Sub-section (1) of Section

205 when the High Court has passed a final judgment, decree or order and has certified that a substantial question of law as to the interpretation of

the Government of India. Act, is involved. The provisoes to Section 111-A have been expressed in very compact language, but when it is followed

there is no doubt left as to its effect.

The second addition is to Order 45 of the Code of Civil Procedure, An additional rule has been here inserted, V. 17, and it reads as follows:

Where a certificate has been given u/s 205(1) of the Government of India Act, 1935, the provisions of this order shall apply in relation to appeals

to the Federal Court as they apply in relation to appeals to the Majesty in Council and references in this order to His Majesty in Council and to any

order of His Majesty in Council shall be construed as references to the Federal Court and the rules of the Federal Court:

Provided that

(a) rule 3 of this order shall have effect as if at the end of Sub-rule (1) thereof there were inserted the words ''apart from any question of law as to

the interpretation of the Government of India Act, 1935, or any order in Council made thereunder;

(b) where the only ground of appeal stated in the petition is that any question of law as to the interpretation of the Government of India Act, 1935,

or any order in Council made thereunder has been wrongly decided, the petition need not pray for such a certificate as is mentioned in Rule 3, and

the like proceedings shall be had thereon as if such a certificate had been given except that no security shall be required for the costs of the

respondent.

Rule 3 as it stood before the amendment provided that every petition for leave to appeal to His Majesty in Council should state the grounds of

appeal and pray for a certificate either that, as regards amount or value and nature, the case fulfils the requirements of Section 110, or that it is

otherwise a fit one for appeal to His Majesty in Council. The addition of the words to Rule 3 effected by proviso (a) makes it quite clear that it is

unnecessary for the Court to consider in a petition filed in compliance with Order 45, Rule 2 the question whether there is a substantial question of

law involved as to the interpretation of the Government of India Act, 1935. That matter has already been dealt with u/s 205(1) by the High Court

on the passing of its judgment, decree or final order. Proviso (b) emphasises that it is unnecessary for the petitioner to apply for a certificate or for

the Court to grant one.

The order of Wadsworth, J., was a final order of this Court. Clause 15 of the Letters Patent prohibits an appeal from an order passed by the

Court in the exercise of its revisional powers. The learned Judge considered whether the matter involved a substantial question of law as to the

interpretation of the Government of India Act, 1935, and he has certified that his order does involve such a question. No other question is involved

and therefore this appeal must be admitted.