State of Uttar Pradesh v. Dr. Vijay Anand Maharaj

Suhba Rao J. Additional Assistant Collector was set aside merely

on the ground that the assessing authority had no jurisdiction to make the assessment, to apply within 90 days from the date of the commencement of the said Ordinance for a review of the said proceedings in\the light of the provisions of the Ordinance, and a statutory injunction was imposed upon a court to review the said order accordingly. Pursuant to the provisions of s.6 of the said Ordinance, on March 14, 1956, the appellants filed an application in the High Court at Allahabad for review of its order dated November 22, 1956. Subsequently as stated earlier, the Ordinance was replaced by the U. P. Act XIV of 1956, hereinafter called the Act. In the course of the judgment we shall refer only to the provision of the Act. The said application was heard, in the first imtanee, by Mehrotra, J., and he held that s.ll of thn Act, which corresponds to s.6 of the Ordinance, did not entitle the appellant to file an application for review of an order ma.de by the High Court under Art. 226 of the Constitution. The appellant's petition was dismissed on that ground. The appellants preferred an appeal against the said order to a division Bench of that court. Nootham, C.J., and Srivastava, J., who heard the appeal, dis· missed it on two grounds, namely, (I) under Ch. VIII r.5 of the Rules of Court, a special appeal against an order of a single Judge of the court can be main-tained only if that order amounts to a "Judgment·~ and an order refusing an application for review nbt being a "Judgment" cannot be the subject of an appeal, (2) on merits, that is on the construction of s.11 of the Act, the view taken by Mehrotra, J. was correct. The present appeal, as already stated, was preferred against the said order.

Mr. C. B. Aggarwala, learned counsel for tho l9G2 appellants, has raised before us the following points: State of Uttar ( 1) The order of Mehrotra, J., dismissing the appli-Pradesh v. ..... l cation for review of his earlier order is a "Judgment /Jr. Vijay A11a11d

within the meaning of Ch. VIII r. 5 of the H.ules of fl..faharaj Court and, therefore,. an appeal lies against that Subba Rao J. order to a division Bench of that court. (2) The terms of s.11 of the Act are comprehensive enough to take in an order made by the High Court under Art. 226 of the Constitution quashing the order of assessment and even if there is some lacuna, the provisions shall be so construed as to carry out clear intention of the Legislature. (3) In any view, the application for review filed by the appellants could be treated as one filed under Order 47 of the Code of Civil Procedure, and the earlier order reviewed on the ground that there is an error apparent on the face of the record. We shall take the questions in the order they were argued.

The first question is whether an appeal lay against the order of Mehrotra., J ., rejecting the application for review filed by tho1 appellants to a division Bench of the High Court. Chapter VIII r.5 of the Rules of Court provides for an appeal against an order of a single judge. Under that rule a special appeal against an order of a single. judge of the court can be maintained· only if that order &mounts to.a "judgement". That rule gives effect to c 1. IO of the letters Patent for the High Court of Allahabad, which gives a right-. of appeal against a judgment of a single judge subject to the <io~di­ tions mentioned therein. The said cl.10 corres-ponds to cl.15 of the letters Patent for the High Courts of Calcutta., Bom~y a.nd Madras. The soope of the expression "judgment" came under the judicial scrutiny of the var~ous High Courts:

there is a cleavage of opinion on that question.

We shall briefly notice the leading decisions of the Va.rious High Courts on th.e subject. Couch, C.J.,

6 SUPRE~1E COURT REPORTS (l9G3]

1962 in :J.'he J'U8tices of the Peace for Calcutta v. 1.'he Sttite of Uttar Oriental Gas Go. (') defines the word "judgment''

Pr'odesh in cl. 15 of the Letters Patent thus:

v.

Dr. Vijay Anand "We think 'judgment' in clause 15 means

Maharaj a decision which affects the merits of the Subb• RaoJ. question between the parties by determining some right or liability. It may be either final, or preliminary, or interlocutory, the difference between them being that a final judgment determines tho whole ca.use or suit and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be deterpiined".

'.l.'he same High Court in Hadjee J,wnael v. Hudjee M ahommed (2) held that an appeal lay under the said clause from an order refusing to set aside an order granting leave to sue to the plaintiff under ol.12 of the Letters Patent. Therein Couch, C.J., observed:

"lt is not a mere formal order, or an order merely regulating the procedure in the suit, but on that has the effect of giving a jurisdiction to the c.ourt it otherwise would not have. And it may fairly be said to determine some right.between them, viz., the right to sue in a particular Court, and to compel the defendants who a.re not within its jurisdiction to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence."

The Bombay High Court followed the Calcutta view. The leading judgment of the Madras High Court is that in Tutjaram v. Alagappa (3), where it was held that an order of a single Judge in the Original Side refusing to frame an issue asked for by one of the parties is not a 'judgment' within (I) (1872) 8 Bena. L.R. 433, 452. (2) (1874) 13 Bena. L,R, 91, 101. (3J (1912) I.L.R. 35 Mad, 1, 7, 15.

the meaning of cl.15 of the Letters Patent. White, 190::: C.J., la.id down the following tests:

Stale of Uttar "The test seems to me to be not what is Pradesh •• the form of the adjudication, but what is its lJr. Vijoy Anand effect in the suit or proceeding in whieb it is. Maharaj m1,1.de. If its effect, whatever its form may be, and whatever be the nature of the appli-Subb., Rao J. _, cation on which it is made, is to put an end

to the suit or proceeding so far as the Court before which the suit or proceeding is. pending is concerned, or if its effect, if it is not com-plied with, is to put an end to the suit or proceeding, I think the adjudication is a 'judgment' withi~ the meaning of the clause."

Referring to the decisions of the Calcutta High Court the learned Chief Justice proceeded to state:

"On the other hand I am not, prepared to say as was held in The Justices of the Peace for Calcutta v. The Oriental Gas OompamJ .(1) and in Soobai v. Ahamedbhai H abibhai (2), it must be a decision which affects the merits by determining some right or liability. I think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or . proceeding and does not determine any question of right raised in the suit or proceeding.

Krishnaswami Ayyar, J., observed much to the same effect:

"I would only stop here to remark that a decision which determines the cause or proceeding so far as the particular court is concerned, though it refused to adjudge the merits, must also be de1med to be a judge-ment: far otherwise the rej~ction of a plaint for defect of form or insufficiency of Court (I) (1872)8Bcng.L.R.433. _ (2) (1872) 9B.H.C.R.398.

8 SUPl~E.ME COURT REPORTS [1963)

J9GZ fee or a return of it for want of jurisdiction would be outside the definition of the learned Sttt1 of Uttar Chief Justice which could hardly have been

Pradesh

v. his meaning. I may also observe that the Dr. Vijoy Anand "part" which is determined may be a part

Maharaj of the claim separable from the rest or a Subha Rao J. determination of liability generally though the actual meaHuro of liability may be a matter of account".

The Lahore High Court generally followed the view expressed by the Madrao High Court. The Allahabad High Court in 1lfuluim1;w,d Nr1im-UUah Koon v. lhsan-Ullah Hhan (1) expressed the view that an order which is not, appealallle under 0.43 r. 1 of the Code of Uivil Prucedure is not appealable under cl. 10 of the Letters Patent. This view ha.ii been followed by a division· Bench of the same High Court in Tirmul i:iinyh v. K1tnhayia Singh ('). But the said decisions do not attempt to lay down a definition of the expression "judgment" in the Letters Patent. The Nagpur High Court in Maoohar v. Baliram (') by a majority, after considering the case-law on the subject, laid down the following definition. Hidayatullah, J ., who delivered the leading judgment, laid down the test at p. 522 thus: "A judgment means a decision in an action whether final, preliminary, or inter-locutory which decides eith11r wholly or partial-ly, but conclusively in so far as the Court is concerned, the controversy which is the subject of the action. It does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective. The decision need net be immediately executable per 88 but if l11ft untouched, muet result ine..-itably without anything fart.her, save the determination of (1) [1892] I. L. R. 14 All.226 (2) [1923J I. L. R, 45 All. 535.

(3) J. L. R. 1952 N•&• 471.

consequential details, in a decree or <lecreta.I 191iB order, that is to say, an executive document State of_Wtar directing something to be done or not to be i'radesh '· done in relation to the facts of the contro· Dr. Vijay Anand versy. The decision may itself order tbat llialiaraj thing to be done or not to be done or it may Su6ba Rao J, leave that. over till after the ascertainmont of some details but it must not be interlocutory having for its purpose the ascertainment of some matters of or details prior to the determination the whole or any part of tho controversy."

The foregoing brief analysis of judgment shown that the definition given by the Madras High Court is wider than that given by the Calcutta and Nagpur High Courts. It is not necesaary in this case to attempt to reconcile the said decision or to give a definition of our own, for on the facts of the · prese.at case the order of Mehrotra., J., would bo a judgment within the meaning of the narrower defini-tion of that expression.

The appellants filed an application to review the order of the High Collrt quashing the order of assessment made by the Additional CoJlector. It was alleged in the affidavit that the impugned assessment had been validated under the Ordinance and that the applicants had the right to have the order of Mehrotra, J., reviewed in the light of the provisions of s. 6 thereof. The assessee denied that the appe11ants had any such right. The appellants'

statutory right to have the order of the High Court reviewed was denied by the other side and was put in issue before the High Coul't. The relevant pro-visions of the Act, read :

Section 2. "In Section 2 of the U. P.

Agricultural Income 'rax Act, 1948 (herein-after caJled the Principal Act), for clause (4}, the following shall be and be deemed always to have been substituted-1962 "( 4-a.) 'Collector' shall have the meanina Slate of U'tor as in the U, P. Land Revenue Act, 1901, and

Pradesh •• will include an Additional Collector appoint-llr. Vijay A.n•n; ed under the said Act."

MallQroj Section 10. Validation-(!) l<'or the re-SubbtJ R110 J. moval of doubts it is hereby declared that- (a) in rule 18 of the U. P. Agricultural Income Tax Rules, 1949, the expression "Collector" and "Assistant Collector in-charge of a sub-division" shall respectively include and be deemed always to have included an "Addi-tional Collector" and an "Additional Assistant Collector in-charge of a sub-divisional".

(b) all orders, actions or proceedingl'I ta.ken, directions issued or jurisdiction exercis-ed or in accordance with the provisions of the Principal Act or of any rule framed thereunder prior to the amendment of that Act by Section 2 of this Act aha.II be deemed to be a.a good and valid in law a.s if Section 2 aforesaid had been in force at all material dates.

(2) Where any question a.rises a.s to the validity or legality of any assessment ma.de by a.n Additional Collector in-charge of a sub-division or by a.n Additional Collector in pur-ported exercise of the powers under Section 14 or of the rules framed under clause (c) of sub-section (2) of Section 44 of the Principal Act, the same shall be determined a.a if the provisions of Section 2 of this Act had been in force at all material dates .

• Section 11. Review of Procee,dings :-Where before the commencement of this Act any court or authority had, in any proceedings under the Principal Act, set aside any a.eseas-ment made by 11.n Additional Collector or

Additional Assistant Collector in-charge of a 1962 sub-division merely on the ground that the State of Utt4r assessing authority had no jurisdiction to make Pradesh an assessment, any party to the proceedings c.. Dr. Vijay Anand may, at any time within ninety days from the Maharaj date of commencement of this Act apply to the Court or authority for a view of the proceed-Subba Rao J. ings in the light of the provisions of this Act, and the Court or authority to which the application is made shall review 'the proceed· ings accordingly and make such order, if any, varying or revising the order previously made as may be necessary to give effect to the pro- -visions of the Principal Act as amended by Sections 2 and 8 of this Act.

Under the aforesaid provisions the assessmeut:;

made by the Additional Collector were retrospec-tively validated and a right was conferred on a.

party to the proceedings under the Principal Act, wherein the assessments were set aside merely on the ground that the assessing authority had no jurisdiction to make an assessment, to apply to the court to have that order reviewed. A statutory injunction was also issued to the court which set aside the assessment on the ground of want of jurisdiction to review· its order-and to give effect to the provisions of the Principal Act, as amended by SS. ~and. 4 of the Act, that is to say, a fresh right has been conferred upon a party _to the earlier proceedings to have the previous order set aside and to have decision from the court on the basis of the a.mended Act. This is a valuable and substanti~e right conferred upon a party to the proceeding.

On the rival contentions, the question of the fresh right conferred upon a party to the proceed· ing and the jurisdiction of the court to enforco the said right would be in issue and any decision thereon could legitimately be said to be a deci-sion determin~g the rights of parties. But .for the

12 SUPHEME COURT REl>oRTS [llJ63]

1962 amen<ling Act, the order of the High Court admit-Sta·te Qj. U liar tedly would have become final; but, because of

L'r.desh the amending Act there was a controversy whether

v. the binding decision could be reopened and the Dr. ·Vij'!_V Anond

Maharaj rights of the parties decided in accordance with

the amending Act. The decision of Mehrotra, J., fubba Rao J. dismissing the application was certainly a decision

denying the right of the appellants alleged to have been conferred under the amending Act. We therefore, hold t.hat the order of Mehrotra, J., dismissing the application, filed for review of his earlier order, on the ground that s. 11 of the Act did not confer any such right on the appellants was a •judgment' within the meaning of cl.10 of the Letters Patent as well as Ch.VIII r.5 of the H.ules of Court. If so, we must hold that the division Bench of the High Court went wrong in holding that no appeal lay against the order of Mehrotra, J, Even ~o, the appellants would not be entitled to succeed, unless we hold, differing from the High Court, that s.11 of the Act confers a right on the appellants to have the order of Mehrotra, J·., reviewed. We have already extracted the provisions of s. 11. Section 11 is in two parts: the first part of the section confers a right on a party to the proceedings under the Principal Act to apply to the court or authority for a review of the proceeding in the light of the provisions of the Act within 90 days from the commencement of the Act, and the second part issues a statutory injunction un such a court or authority to review the proceedings accordingly and to make an order as may be necessary to give ·effect to the provisions of t.Jie Principal Act, as amended by ss.2 and 4 of the Act. The first question, therefore, is whether the order of Mehrotra, J., in an application under Art. 226 of the Constitution was in any pro. ceeding under the Prineipal Act. Obviously a petition under Art. 226 of the Constitution cannot be a proceeding under the Act: it is a proceeding under the Constitution. But it is said, relying J96Z upon certain passages in Maxwell on the Interpreta-Utto1 State of tion of .Statutes, at p, 68, and in Crawford on Pradesli "Statutory Construction" at p. 492, that, it i~ the v.

.of Dr. Vijay Ab~nd dutJ-. the Judge ''to make such construetiop. of MaharQj I• a statute as shall suppress the mischief and ad-

vance the remedy," and for that purpose the more Subba Roo .T. extended meaning could be attributed to the words so as to bring all matters fairly within the scope of such a statute even though outside the letter, if ·:within its spirit or reason. But both Maxwell and Crawford administered a caution in resorting to such a construction. Maxwell says at p.68 of his book:

"The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words.''

Crawford says that a liberal construction does not justify an extension of the statute's scope beyond the contemplation of ·the Legislature. The fun-damental and . elementary rule of construction is that the words and phrases used . by the Legis · lature shall be given their ordinary meaning and shall be constructed according to the rules bf grammar. When the language is plain and un-ambiguous and admits of only one meaning, no question of construction of a statute a.rises, for the Act speaks for itself. It is a well recognized rule of construction that the meaning must be collected from the expressed intention of the Legislature.

So construed, there cannot be two -possible views on the interpretation of the first part of the section. Learned counsel suggested that we should read the relevant portion ~f the fi~t part thus: ''in any proceedings to set aside any assess-ment made on the basis of the Principal Act.,'.

To accept this argument is to rewrite the section.

While the section says that the order sought to be reviewed is that made in a proceeding under

14 SUPREME OOURT REPORTS [1963]

1962 the Principal Act, the ll.rgument seeks to remove Stott,,, (]tta1 the qualification attached to the proceeding and

Pradtsh •• add the same to the assessment. The alternative f),, r ijoy Anand argument, namely, that without changing the posi-

Maharaj tion of the words as they stand in the section, the

expression "on the basis of" may be substituted Sub~a Rao J, for the expression "under" does not also yield the

results expected by the learned counsel. It can-not be held with any justification, without doing violence to the language used, that a proceeding under Art. 226 of the Constitution is either one under the Principal Act or on the basis of the Principal Act, for it is a proceeding under Art. 226 of the Constitution to quash the order on the ground that it was IBade in violation of the Act. An attempt is then made to contend that a pro-ceeding under Art. 226 of the Constitution is a. continuation of the proceedings before the Addi-tional Collector and, therefore, the said proceed-ings are proceedings under the Act. This leads us to the consideration of the question of the scope of the proceedings udder Art. 226 of the Constitution.

Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional juris-diction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modelled on the said writs mainly to enable the High Courts to keep the subordinate tribunals within bounds. Before the Constitution, the chartered High Court, that is, the High Courts a.t Bombay, Calcutta.and Ma<lms, were issuing prerogative writs similar to those issued by the King's Bench Division, subject to the same limitations imposed on the said writs. In Venkat,aratnam v. 8ecref,ary of State for lndici ('), (I} (1930) J,L.R. 53 Mad. 979.

a division Bench of the Madras High Court, con-1962 sisting of Venkatasubba Rao and Madhavan Nair, Stolt of Uttor JJ., held tha.t the jurisdiction to issue a writ of Pradesh certiorari was original jurisdiction. ln v. Ryots of Dr. Vijay Anand Garabandha v. The Zamindar of Parlakimedi (1}, Maharaj another division Bench of tli.e same High Court, con-sisting of Leach, C. J., and Madh,van Nair J., con-Subha Rao ,f. sidered the question again incidentally and came to the same conclusion and held that a writ of certiorari is issued only in exercise of the oriaina.l jurisdiction of the High Court. In Ramayya v. St,ate j of Madras- (2), a division Bench, consisting of

Govinda Menon and Ra.maswami Gounder, JJ,, considered the question whether the proceedings under Art. 226 of the Constitution are in exercise Of the original jurisdiction or revisional jurisdiction of the High Court, and the learned Judges held that the power to issue writs under Art. 226 of the Constitution is original and the jurisdiction exercised is original jurisdiction. In Moulvi Hamid Hassan N omani v. Banwarilal. Roy (3), the Privy Council was considering the question whether the original civil jurisdiction which the Supreme Court of .Calcutta possessed over certain classess of persons outside the territorial limits of that jurisdiction bas been inherited by the High Court. In that context the Judicial Committee observed.

"It cannot be disputed that the issue of such writs is a matter of original jurisdiction''.

The Ca.lc11tt& High Court, in Bu,dge ·Budge Jfunici-pallty "· Mangru ('), came to the same conclusion, namely, that the jurisdiction exercised under Art.

226 of the Constitution is original as distinguished from appellate or revision&) jurisdiction; but the High Court pointed out that the juri11diction, though original, is a special jurisdiction and should not be

(l) I.L.R. 1938 Mad. 816. (2) A.I.R. 1952 Naef. 300.

(3J ( 19.2) I{ M. L. J. 32, 35. {4) (1952) 57 C. W. N. 25.

W62 confused with ordinnry civil jurisdiction under the Sta!e of Ultar Letters Patent. The Andhra High Court in Satya-

Pradtsh narayanamurthi v. I. T. AppeJ,late TrilntrMJl (1) des-

v. cribed it as an extraordinary original jurisdiction. Di. riiav Ananrl

Maliaraj It is, therefore, clear from the nature of the power Subba R•o J. conferred under Art. 226 of the Constitution and the

decisions on the subject that the High Court in exer-cise of its power under Art. 226 of the Constitution exercises odginal jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This juris-diction, though original in character as contrasted with its appellate and revisional jurisdict.ions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may. for con-venience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Art. 226 of the Constitution is n continuation of the. proceedings under the Act. There is another insurmountable difficulty in accepting the construction suggested by learned counsel. Under the second part of the section a party to the earlier proceedings may within the prescribed time apply to the court or authority for a. review of the proceedings in the light of the pro-visions of the Aot, and the cciurt or authority to which the application is made shall review the pro-ceedings accordingly, and make .such order, if any, varying or revising the order previously ma.de as may be necessary to give effect to the Principal Act, as amended by s. 2 of the Act. Should it be held that this section applies to an order made by a High Court under Art. 226 of the Constitution, the statu-tory mandatory injunction issued under the second part of the section to the High Court to make an order in a particular way would be constitutionally void. Under the Constitution the Legislature of a

(I) A. J. ll. 1957 Andbra 123.

State derives its authority to· make laws under Art. lHI 245 of the Constitution, which reads:

Slat1 of Uttar ( l) "Subject to the provisions of this Con- · Pradesh I. stitution; Parliament may make la.ws for the V; Dr. V ijo.1 11ntJnd whole or any part of th~ territory of India: and Mah#•j the Legislature of a. State may make laws for the whole or any pa.rt of the State.''

Article 245 is, therefore, subject to Art. 226 of· the Constitution .. It follows that no law made by the Legislature of a State can be in derogation of the powers of the High Court under Art. 226 of the Constitution. It is well settled that Art. 226 con-fer8 a discretionary power on the High Cpurts to make or issue appropriate orders and writs for the enforcoment of any of the rights conferred by Part III of the :Constitution or for any other purpose.

While Art. 226 confers & discretionary power on the High Court, the second part of s. 11 · of the Act enjoins on the High Court to make an order in a particular way .. We· ·should not give such a construction to the section as would bring it into conflict with Art. 226 of the Constitution a.pd which would have the ,effect of invalidating it to that ex-tent. On the other hand, the cons~ruction adopt-ed by us would be consistent with the second part of the section, for,_ if the first part is confined only to an order made by any court or authority, other than the High Court in exercise of its jurisdiction under Art. 226 of the Constitution, both the parts fall in a piece, and we wou~d not only be giving a natural meaning to the express words .used in the section but we would also be saving the section from the vice of constitutional invalidity. · ·

· Learned counsel for the appellants seeks to got over this obvious difficulty by contending that the word "shall" may be treated as "may" s_o that the discretion of High Court under Art. 226 may be maintain'='d. Alternatively, he· contends that the second pa.rt of the section comprises two parts-the 1962 first empowers an aggrieved party only to file an State ofUitar application, and the second imposes a statutory

Pradlsll duty, and thnt the first may convenient~y be served

v. from the second and its validity to tl1at extent sus-Dr. VijaJ .Ana11d

Ma!itJraj, tained. The first argument is contrary to the ex-

press words used and the intention of the Legisla-Subba RuJ. ture. If we read ''shall" as "may" the same dis-

cretion will have to be given even to authorities and courts other than the High Court, with the result the purpose of the section would be defeated. On the other hand, if the expression "shall" is given its natural meaning, the section carries out the intention of the Legislature, vi~., the mandatory injunction imposed on courts and authorities to restore the as~essment d<'clared invalid. Tho decisions cited by the lea.rued counsel ill support of his construction arc not of any help, for they were based upon the co!1Bt1·uction of the relevant provi-sions under consideration in those cases. The second argument, if accepted, would be rewriting the section. While the dominant intention of the Legislature is to issue a mandatory injunction on the courts or authorities to review their orders on a suitable application mo,de to them, we would be deleting it and thus defeating the object of the Legislature. For the foregoing reasons, we have no hesitation in holding that, on a plain reading of the clear words used in the section, it does not apply to an order made by the High Court under Art. 226 of ' the Constitution.

Lastly it is contended that even ifs. l i does not apply, we should treat the application filed by the appellants before the High Court as one made under Order 4 7 of the Code of Civil Procedure. There are many objections for allowing the appellants to do so at this very late stage of the proceedings. The application was filed only under s. 11 of the Aot and no attempt was made either before Mehrotra, J., or before the division Bench of the High Court to ask for an a.mendment

or to sustain the petition under Order 4 7 of 1962 the Code of Civil Procedure; nor did the appellants raise this plea in the petition filed for State of Ullar Ptadeak speoial leave or even in the statement of case as v. originally filed by them. After the case was argued Dr. Vi]~, Anand !Hallaraj for sometime on an observation casually made by the Court, time was taken and for the first time Su66a Rao J. tb/s plea was taken in the additional statement of c~se filed by,the appellants. This is, therefore, a highly belated attempt to convert the application filed on one basis into that on another. Further, the plea, if allowed, is not so innocuous or. smooth-sailing as it appears to be, but is brimming with many controversial questions. It raises the follow-ing questions : ( l) Whether the application treat-ed as one made under order 4 7 of the Code of Civil Procedure was within time; (2), if it was out of time, could the delay be excused without the appel-lant filing an application for excusing it and giving valid reasons for the same ; (3) whether an order made by the High Court in exercise of its powers under Art. 226 of the Constitutic.n could be review-ed under Order 47 of the Code of· Civil Procedure, and, if not, under s. 151 of the said Code; (4) whe-ther the amendment of an Aot with retrospective effect could be treated as an error on the face of the record or as a sufficient cause within the meaning of Order 47 of the Code of Civil Procedure for reviewing the· final orders and decrees made by courts on the basis of .the law obtaining at the time the said 9rders or decrees were made ; and ( 5} if the order of Mehrotra, J., was one made under Order 4 7 of th,e Code of Civil Procedure, would an appeal lie to a. division Bench of the High Court under Order 43 of the Code. We do not propose to expre1s any opinion on the aforesaid questions.

It would be enough to say that we are not justified to allow the appeIJants to convert their petition to one made under Order 4 7 of the Code of Civil Pro.

cedure at this very late stage, in view of the fore-St•i. of Utt,,,. going reasons.

Pradesh •• Dr. Viio.1 A.none/ In the result, we hold that the order of tho

Ma11oraj High Court is correct. Tho appeal fails and is diH-SubboRaoJ. missed with costs.

Muriholk.,J. MunHOLKAii, J.-I agree with my learned

brother that the appeal should be dismissed for the reasons stated in his judgment. I, however, express no opinion on the quetion regarding the ma.in ta.in-ability of the appeal. under the Letters Pa.tent against the decision of a single Judge in a case of this kind.

Appeal diltm~.

1962 THAKUR MOHD. ISMAIL

M01e1a IO. v.

THAKUR SABIR ALI

(P. B. GAJENDR.AG.ADKAR, w A. K. SARKAR and

K. N. .ANOHOO, J J.)

Wakf-alal·aulad Ezecuted by Oud.h talukdar--1/ offends rule against porpituity-Oudh JC1tate• Act. 1869 (1of1869), as. 11, ••. 12, 18-Mussalman wakf Validating Act, 1913 (6 of 1913), a, 4.

A Hanafi Mussalman, owner of a talukdari estate governed by the Oudh Estate, 1869, executed in 1925 a deed of walrf-alal-aulad, for the benefit of himself, his family and descendants generation after generation. He was to be the first mutwalli and thereafter his second son and after him his ·other sons and descendants according to the· rule of prim0geni-tu.re. Certain amounts were also to be paid to charities and for the maintenance of members of his family. The remainder was to go to the mutwalli. After his death the suit, out of which the present appeal arises, was instituted by the eldest son of his predeceased <'ldcst son claiming succession to the estate according to male lineal primogeniture under the Act. His case mainly was that the wakf deed was invalid in view of ss. 11 and 12 of the Act. The trial court found that the deed