Garikapatti Veeraya vs N. Subbiah Choudhury

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition for Special Leave to appeal No. 170 of 1955; Civil Miscellaneous Petition No. 579 of 1956

Decision Date: 1 February 1957

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, S.K. Das, Sudhi Ranjan Das, Venkatarama Ayyar

In the matter titled Garikapatti Veeraya versus N. Subbiah Choudhury, the Supreme Court of India delivered its judgment on 1 February 1957. The bench hearing the case consisted of Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha and Justice S. K. Das, with Justice Das acting as Chief Justice. The citation of the decision appears in the reports as 1957 AIR 540 and 1957 SCR 488. The case arose from a suit that had been instituted on 22 April 1949 and was valued at Rs 11,400. The trial court dismissed the suit, but the High Court, on appeal, set aside that dismissal on 10 February 1955. The appellant then sought special leave to appeal to the Supreme Court; however, the High Court refused leave on the ground that the monetary value of the suit did not reach the threshold of Rs 20,000 prescribed for a direct appeal. The appellant contended that, under the law then in force, he possessed a vested right of appeal to the Federal Court, and that, after the Constitution came into force and the Federal Court was replaced by the Supreme Court, that right conferred a corresponding entitlement to appeal to the Supreme Court under Article 135 of the Constitution.

The Court, delivering a majority opinion authored by Chief Justice Das and joined by Justices Bhagwati, B. P. Sinha and S. K. Das, held that the appellant’s contention was well‑founded and that he indeed enjoyed a vested right of appeal to the Federal Court from the date the suit was commenced. Accordingly, the application for special leave to appeal was allowed. The Court explained that a vested right of appeal is a substantive right that, although exercisable only after an adverse decision, is governed by the law existing at the commencement of the suit and encompasses all successive rights of appeal from one court to another, which together constitute a single proceeding. Such a right could be withdrawn only by a subsequent legislative enactment, either expressly or by necessary implication. In reaching this conclusion, the Court relied upon the authority of Colonial Sugar Refining Company Ltd. v. Irving (1905) A.C. 369, as well as the earlier decisions Sadar Ali v. Dalimuddin (1929) I.L.R. 56 Cal. 512 and In re Vasudeva Samiiar (1928) I.L.R. 52 Mad. 361. The Court further examined the scope of Article 133 of the Constitution and held that it was not intended to have retrospective effect that would strip away a pre‑existing vested right, nor does its language, read literally or by necessary implication, accomplish such a result. Proper construction, the Court said, restricts Article 133 to judgments, decrees or final orders of a High Court where no vested right of appeal exists; otherwise clause 20 of the Adaptation of Laws Order 1950, which preserves such rights, would become meaningless. The judgment concluded by noting that a litigant from a Princely State who could not claim a vested right of appeal would nevertheless fall within the ambit of Article 133.

The Court noted that a right of appeal to the Federal Court was required to come within Article 133 of the Constitution, referring to the authorities in Janardan Reddy v. The State, (1950) S.C.R. 940, Keshavan Madhava Menon v. The State of Bombay, (1951) S.C.R. 228 and Dajisahib Mane v. Shankar Rao Vithal Rao, (1955) 2 S.C.R. 872. It held that the vested right of appeal which had been created under the pre‑Constitution law was a matter expressly contemplated by Article 135, because the jurisdiction and powers of the Federal Court were exercisable at the commencement of the Constitution and therefore fell within the appellate jurisdiction of the Supreme Court, making the appeal entertainable there. The Court further explained that Article 135 could not be limited only to cases in which the right of appeal had already materialised in a concrete form; the right could not be treated as a mere potentiality immediately before the Constitution came into force. In support of this view the Court cited Ramaswami Chettiar v. The Official Receiver, A.I.R. 1951 Mad. 1051; Veeranna v. China Venkanna, I.L.R. 1953 Mad. 1079; Probirendra Mohan v. Berhampore Bank Ltd., A.I.R. 1954 Cal. 289; Ram Sahai v. Ram Sewak, A.I.R. 1956 All. 321; Tajammul Hussain v. Mst. Qaisar Jagan Begam, A.I.R. 1956 All. 638; and The Indian Trade and General Insurance Co. Ltd. v. Raj Mal Pahar Chand, A.I.R. 1956 Punj. 228, while indicating that these decisions were overruled. The Court distinguished the earlier authorities Canada Cement Co. Ltd. v. East Montreal (Town of), (1922) I A.C. 249 and Nathoo Lal v. Durga Prasad, (1955) I S.C.R. 51. Relying on the opinion of Venkatarama Ayyar, the Court observed that a right of appeal is undoubtedly a substantive right, but it does not consequently vest in the parties to a suit from the date the suit commences. The decision in Colonial Sugar Refining Company Ltd. v. Irving, (1905) A.C. 369, which was cited to support a contrary theory, was held not to be supportable in principle or by the authorities relied upon. The Court explained that a right to appeal to a superior court arises only upon the passage of an adverse decision, and that the successive rights of appeal provided by law do not constitute a single proceeding or a single right, as shown by the relevant provisions of the Code of Civil Procedure; consequently the decisions in Colonial Sugar Refining Company Ltd. v. Irving, (1905) A.C. 369; Sadar Ali v. Dalimuddin, (1929) I.L.R. 56 Cal. 5112; and In re Vasudeva Samiar, (1928) I.L.R. 52 Mad. 361 were dissented from. Assuming, for argument’s sake, that the petitioner possessed a vested right of appeal to the Federal Court before the Constitution’s commencement, the Court held that such right must be deemed to have ended with the repeal of the Government of India Act, 1935 and the consequent abolition of the Federal Court by the Constitution, relying on Veeranna v. Chinna Venkanna, I.L.R. 1953 Mad. 1079 and Daji Sahib Mane v. Shankar Rao Vithal Rao Mane, (1955) 2 S.C.R. 872. Accordingly, there was no source upon which Clause 20 of the Adaptation of Laws Order, 1950 could operate to preserve the right, and the Supreme Court could not be regarded as a successor to the Federal Court for the purpose of attracting that clause.

The Court observed that Article 133 of the Constitution governed every judgment, decree and final order issued by High Courts in civil matters after the Constitution came into force, irrespective of when the proceedings had been instituted. Consequently, if an appeal failed to satisfy the statutory valuation requirement, it had to be treated as incompetent. The Court further held that any vested right of appeal that might have existed before the Constitution was necessarily extinguished by the Constitution’s operation. In support of this view, the Court referred to the authorities Canada Cement Co. v. East Montreal (1922) 1 A.C. 249, Durousseau v. United States, 3 L. Ed. 232: 6 Cranch 307 and Baltimore and Potomac Railroad Company v. J. H. Grant, 98 U.S. 231: 25 L. Ed. 231. The Court also noted that Article 135 of the Constitution could not apply to the instant matter because Article 133 already governed the appeal, and there was no longer any vested right to approach the Federal Court that the Court could have exercised immediately before the Constitution’s commencement. Accordingly, the application for special leave to appeal was ordered to be dismissed.

The judgment then proceeded to the formal portion of the order. The matter before the Court was a petition for special leave to appeal under Article 136 of the Constitution, filed as Special Leave Petition No. 170 of 1955 together with Civil Miscellaneous Petition No. 579 of 1956. The petitioner sought leave to appeal the judgment and decree dated 4 March 1955 handed down by the Andhra High Court in Appeal S. No. 301 of 1951. Counsel for the petitioner was represented by an advocate, while the respondents were represented by their respective counsel, and the Attorney‑General for India appeared as assisting the Court. The order was dated 1 February 1957 and the judgment of the Court was delivered by the Chief Justice, with a separate opinion authored by Justice Venkatarama Ayyar. The application for special leave arose from a suit instituted on 22 April 1949 in the sub‑court of Bapatla, then falling under the Madras High Court’s jurisdiction. The trial court dismissed the suit on 14 November 1950, and the plaintiff filed an appeal. After the creation of the Andhra State on 1 October 1953, a new High Court was established under section 28 of the Andhra State Act, 1953 (Act XXX of 1953), and the appeal was transferred to the Andhra High Court pursuant to section 38 of the same Act. The Andhra High Court, on 4 March 1955, admitted the appeal, set aside the trial court’s decree and awarded decree in favour of the plaintiff. The petition for special leave to the Supreme Court was refused, inter alia, because the value of the property in dispute was only Rs 11,400, which did not meet the statutory minimum of Rs 20,000 required for a civil appeal. In the present application, the petitioner argued that the judgment being appealed from satisfied the requisite valuation and therefore entitled him, as a matter of right, to approach this Court under Article 136.

In the present case the appellant argued that the reversal of the earlier decision and the fact that the dispute involved a sum exceeding ten thousand rupees gave him a legal entitlement, by right, to place an appeal before this Court. He maintained that the High Court had refused to recognize that entitlement and therefore the appellant should be permitted, at the discretion of this Court, to obtain special leave to appeal under article one hundred thirty‑six of the Constitution.

The Court then turned to the statutory scheme governing appeals from any final judgment, decree, or order of a High Court to a higher forum. The relevant provisions were contained in the Letters Patent of each High Court, and for the three Presidency towns clause thirty‑nine of the Letters Patent of 1865 was illustrative. That clause provided that an appeal could be taken to His Majesty in Council from any final judgment, decree, or order of the High Court made either on appeal or in exercise of original jurisdiction, provided that the amount or value involved was not less than ten thousand rupees, or that the matter concerned a claim, demand, or question affecting property of at least that value. The clause also allowed an appeal when the High Court itself certified that the case was fit for such a proceeding. The procedural requirements for an appeal to His Majesty in Council were further detailed in sections one hundred nine and one hundred ten of the Code of Civil Procedure, 1908. Under the Government of India Act, 1935, section two hundred created a Federal Court for India, while section two hundred four gave that court original jurisdiction over specified matters. Section two hundred five conferred appellate jurisdiction on the Federal Court from any judgment, decree, or final order of a High Court in British India, on the condition that the High Court certified the existence of a substantial question of law relating to the interpretation of the Act or any Order in Council made thereunder, and it barred direct appeals to His Majesty in Council, whether with or without special leave, in such cases. When the Indian Independence Act, 1947, was enacted, it became necessary to expand the Federal Court’s jurisdiction to entertain appeals that had previously gone to His Majesty in Council. To that end Parliament passed the Federal Court (Enlargement of Jurisdiction) Act, 1947, identified as Act I of 1948. Section three of that Act stipulated that, from the appointed day of February first, 1948, an appeal would lie to the Federal Court from any judgment to which the Act applied, without the need for special leave of the Federal Court, if an appeal could have been brought to His Majesty in Council under the Code of Civil Procedure, 1908, or any other law then in force, and that no direct appeal to His Majesty in Council would thereafter be permitted, whether with or without special leave. The expression “judgment to which this Act applied” was defined in section two‑sub‑b as any judgment, decree, or final order of a High Court in a civil case from which a direct appeal could have been taken to His Majesty in Council, either with or without special leave, had the Act not been enacted. Section four declared that all proceedings, steps, orders, and certificates issued by a High Court in connection with an appeal to His Majesty in Council, unless the records had already been transmitted, were to be treated as having been taken and made in the Federal Court.

In this case the Court explained that the Federal Court (Enlargement of Jurisdiction) Act, 1947 provided that, from the appointed day of 1 February 1948, an appeal could be made to the Federal Court from any judgment to which the Act applied, without the need for special leave of the Federal Court, in situations where previously an appeal could have been taken to His Majesty in Council under the Code of Civil Procedure, 1908 or any other law then in force. In other circumstances, where special leave of the Federal Court was required, such leave would be sufficient to permit the appeal, and no direct appeal to His Majesty in Council, with or without special leave, would remain available from any such judgment. The expression “judgment to which this Act applied” was defined by section 2(b) as any judgment, decree or final order of a High Court in a civil case from which a direct appeal could have been taken to His Majesty in Council, with or without special leave, if the Act had not been enacted. Section 4 stated that all proceedings, steps taken, orders made and certificates granted by a High Court in connection with an appeal to His Majesty in Council, when the records had not yet been transmitted, would be deemed to constitute proceedings, steps, orders and certificates taken in connection with an appeal from that judgment to the Federal Court under the Act, and that such proceedings would be concluded or would have effect accordingly. Section 5 provided that any application pending before His Majesty in Council for special leave to appeal from a judgment to which the Act applied, and which remained undecided immediately before the appointed day, would on that day be transferred to the Federal Court by operation of the Act, and would be dealt with by that Court as if it were an application properly made to the Federal Court for special leave to appeal from the same judgment. Subsequently the Abolition of Privy Council Jurisdiction Act, 1949 (Act V of 1949) was passed by the Constituent Assembly in September 1949 and became effective on 10 October 1949, a date also referred to as the appointed day. Section 2 of that Act declared that, from the appointed day, the jurisdiction of His Majesty in Council to hear appeals and petitions arising from any judgment, decree or order of any court or tribunal in India, other than the Federal Court, including criminal matters, would cease, whether that jurisdiction existed by virtue of His Majesty’s prerogative or any other source. Section 5 transferred to the Federal Court the same jurisdiction that His Majesty in Council had possessed immediately before the appointed day, in addition to the jurisdiction already granted by the Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947. Accordingly, the Federal Court was empowered to entertain and dispose of Indian appeals and petitions as the Privy Council had previously done. All proceedings relating to any Indian appeal that was pending before His Majesty in Council at the moment the appointed day arrived were to be transferred to the Federal Court under section 6 and to be disposed of by that Court in exercise of the newly conferred jurisdiction.

Section 6 provided that all appeals then pending before His Majesty in Council were to be transferred to the Federal Court, and that the Federal Court was to dispose of those appeals using the authority granted to it by the Act. It is important to recall that the suit which gave rise to the present petition was originally filed on 22 April 1949. The petitioner argued that from the moment the suit was instituted he acquired a vested right to appeal to the Federal Court, a right that continued after the Federal Court was later replaced by the Supreme Court. To support this argument the petitioner referred to several judicial decisions, the most significant of which was the case of Colonial Sugar Refining Company Limited v. Irving. In that case the Collector of Customs, exercising powers under the Excise Tariff Act 1902, demanded payment of £20,100 in excise duty on 6,700 tons of sugar. The appellants contested the demand and consequently deposited the sum with the Collector while simultaneously commencing proceedings in the Supreme Court of Queensland to recover the deposited amount. The writ for that action was issued on 25 October 1902. At the time the action was commenced, the Order in Council dated 30 June 1860 granted the right of appeal to His Majesty in Council from judgments of the Supreme Court. A special case was subsequently referred to the Full Court, which delivered its judgment in favour of the Collector on 4 September 1903. In the intervening period the Judiciary Act 1903 received the royal assent on 25 August 1903, roughly ten days before the Supreme Court rendered its decision. Section 38 of that Act vested exclusive jurisdiction in the High Court of Australia over certain specified matters, while section 39 made the High Court’s jurisdiction exclusive in all other matters, subject to the provisions therein. Sub‑section 2 of section 39 stipulated that the State courts would retain Federal jurisdiction in the matters listed in section 38, but also imposed a condition that every decision of a State court, from which an appeal to the Queen in Council existed at the establishment of the Commonwealth, would be final and conclusive except where an appeal could be taken to the High Court. Consequently, the effect of the Judiciary Act 1903 was to terminate the role of His Majesty in Council as an appellate body for decisions of the Supreme Court of Queensland, making the High Court of Australia the sole appellate authority under that legislation. Nevertheless, having obtained leave to appeal from the Order in Council of 1860, the appellants proceeded to file an appeal in the Privy Council. The respondent, in turn, lodged a petition before the Privy Council seeking dismissal of the appeal with costs, arguing that the right of appeal conferred by the 1860 Order in Council had been removed by the Judiciary Act 1903, and that consequently the only permissible appeal from a Queensland Supreme Court decision was to the High Court of Australia. On behalf of the appellants it was contended that the provisions of the Judiciary Act 1903, relied upon by the respondent, were not retrospective and therefore could not defeat a right that existed at the time the Act received royal assent. The Privy Council, after hearing the matter, dismissed the respondent’s petition and made observations concerning the applicable general principles, distinguishing between procedural matters, which would support the respondent’s position, and substantive matters, which would favour the appellants.

The respondent filed a petition in the Privy Council asking that the appeal be dismissed with costs on the ground that the right of appeal to His Majesty in Council, which had been granted under the Order in Council of 30 June 1860, had been removed by the Judiciary Act of 1903, and that consequently the only avenue for appeal from a decision of the Supreme Court of Queensland was now the High Court of Australia. On behalf of the appellants it was submitted that the provisions of the Judiciary Act relied upon by the respondent were not retrospective and therefore could not defeat a right that existed at the time when the Act received the royal assent. The Lords of the Privy Council dismissed the respondent’s petition and made several observations. They noted that the general principles applicable to the case were not in dispute. On the one hand, it was undisputed that a petition based solely on a procedural matter was well‑founded. On the other hand, if the question went beyond mere procedure and affected a right that existed at the time the Act was passed, it was conceded that, following a long line of authority from Lord Coke to the present, the appellants would be entitled to succeed. The Court observed that the Judiciary Act was not retrospective, either by explicit enactment or by necessary implication. Consequently the sole issue to determine was whether the right of appeal to His Majesty in Council was a vested right for the appellants at the date the Act was passed, or merely a procedural privilege. The Lords were of the view that this question admitted no doubt: depriving a litigant in an ongoing action of an appeal to a superior tribunal that he possessed as a matter of right was fundamentally different from regulating procedure. In principle they saw no distinction between abolishing an appeal altogether and merely transferring it to a new tribunal; in either case there was an interference with an existing right, contrary to the well‑known principle that statutes are not to operate retrospectively unless a clear intention to that effect is expressed. This principle of law has been firmly established in English jurisprudence, is accepted in leading textbooks, and has been followed in numerous decisions in England and India without being challenged by counsel appearing on the present occasion. The principle was applied in India by Jenkins C.J. in Nana bin Aba v. Skeku bin Andu and by the Privy Council itself in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi.

In this case, two assessment orders were made, one on 12 June 1923 and the other on 23 March 1924, each involving a sum that exceeded Rs 10,000. At the request of the assessee, the Commissioner stated two cases to the High Court under section 66 of the Indian Income Tax Act. The High Court affirmed the Commissioner’s decisions in January 1926. The petitioner then applied for leave to appeal to the Privy Council. On 1 April 1926, the Indian Income Tax Amendment Act 1926 introduced section 66A to the Indian Income Tax Act, thereby creating a statutory right of appeal. The learned judges of the High Court were of the opinion that the petitioners possessed a right of appeal to His Majesty in Council provided they could satisfy the requirements of clause 109(c) of the Code of Civil Procedure, but they held that no such right existed otherwise. The High Court considered the applications for certificates on that basis, dismissed them, and refused to certify that the cases were fit for appeal to His Majesty in Council. Consequently, the company applied to the Privy Council for special leave to appeal from the two High Court orders issued in January 1926. It is noteworthy that when the High Court rendered those orders under section 66, section 66A was not yet part of the Act. Moreover, the Privy Council in Tata Iron and Steel Company Ltd. v. Chief Revenue Authority had held that there was no right of appeal from a judgment delivered by the High Court under section 66 of the Indian Income Tax Act. Accordingly, the High Court orders were final at the time they were made in January 1926. That finality persisted until 1 April 1926, when section 66A was added to the Act.

The question before the Court was whether the newly added section destroyed the finality that had attached to the orders when they were made and whether it conferred any right of appeal from those orders that were rendered before the 1926 amendment came into force. Their Lords answered that the principle to be applied had been authoritatively set out in Colonial Sugar Refining Co. v. Irving, which essentially holds that procedural provisions of a statute may have retrospective effect unless such construction is textually inadmissible, whereas provisions that affect a right existing at the time the statute is passed are not to be applied retrospectively without an express enactment or necessary intendment. Their Lords were convinced that provisions which, if applied retrospectively, would deprive orders of their existing finality are provisions that touch existing rights. Consequently, unless the section expressly provided that it applied to orders that were already final, it could not do so. Their Lords found no indication in section 66A that it was intended to apply to such orders. On the contrary, they perceived a clear suggestion that a judgment of the High Court referred to in sub‑section 2 must be one pronounced by “not less than two judges of the High Court,” a condition that only became operative when the entire section came into force. In their judgment, therefore, the petitioners possessed no statutory right of appeal to His Majesty in Council; only an appeal by prerogative could be admissible.

The Court observed that if the provision which is now in question is intended to apply to orders that were final on the date the provision came into force, the statute must state that intention in clear terms. The Court examined the language of the provision and found no indication that it was meant to affect such final orders. On the contrary, the Court perceived a clear suggestion, supported by earlier authorities, that a judgment of the High Court mentioned in sub‑section 2 would be one that, under sub‑section 1, had to be pronounced by “not less than two judges of the High Court”. That requirement itself did not become operative until the whole provision had commenced. Consequently, the Court concluded that the petitioners in the present matters did not acquire any statutory right of appeal to His Majesty in Council. The Court further held that an appeal could be entertained only by the exercise of the prerogative power, and that no statutory avenue of appeal existed for the petitioners.

The question of the finality of an order was later examined by this Court in the case of Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others. In that case the facts were briefly as follows: on 10 October 1947 the appellant arranged with a Pakistani individual to exchange certain properties that she had left behind at Lahore when she migrated to India after the Partition, for lands in a village in the State of Delhi that belonged to that Pakistani. On 23 February 1948 the appellant filed an application before the Additional Custodian seeking confirmation of the exchange under section 5‑A of the East Punjab Evacuees’ (Administration of Property) Act, 1947, as amended in 1948. Section 5‑B of the same Act provided that if the original order under section 5‑A was made by an Additional or Deputy Custodian of Evacuee Property, any aggrieved person could appeal to the Custodian of Evacuee Property within sixty days of the order; and, subject to any decision on such appeal, the order of the Assistant or Deputy Custodian would become final and conclusive. For reasons not explained, the appellant’s application for confirmation was not dealt with promptly and was repeatedly adjourned. In the interim, the East Punjab Evacuees’ (Administration of Property) Act, 1947 was repealed by ordinances which were later superseded by the Administration of Evacuee Property Act, 1950 (Central Act XXXI of 1950). Section 27(1) of the 1950 Act empowered the Custodian General, either on his own motion or on an application, to call for the record of any proceeding in which any district judge or Custodian had passed an order, so as to determine the legality or propriety of that order and to make any order he deemed appropriate. In effect, section 27(1) gave the Custodian General a power of revision. On 20 March 1952 the Additional Custodian acceded to the appellant’s request and confirmed the exchange. On 5 May 1952 the appellant applied to the Custodian General for further relief.

After the petitioner was ordered to be put in possession, a notice was issued under section 27(1) of the Central Act XXXI of 1950 requiring the appellant to show cause why the order of the Additional Custodian dated 20 March 1952 should not be set aside. On 20 May 1953 the Custodian General issued an order that set aside the confirmation order of the Additional Custodian, holding that the notice had not been served on all interested parties and directing the Custodian to decide the matter after giving notice to all interested parties. The petitioner then obtained special leave to appeal to this Court against the order of the Custodian General of Evacuee Property. At the hearing of that appeal the counsel for the appellant argued that, according to the principle laid down by the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving, the appellant had, on filing her application for confirmation in 1948, acquired a vested right to have that application determined under section 5‑A with the attributes of finality and conclusiveness attaching to the order when it was made. She further likened this to the situation where a litigant acquires a vested right of appeal upon the commencement of his suit or proceeding, contending that such a vested right could not be taken away by a later statute except by express provision or by necessary intendment. The appellant submitted that section 27 of the Administration of Evacuee Property Act, 1950 (Central Act XXXI of 1950) did not expressly, nor by necessary intendment, remove that vested right. The Court noted that at the time the Central Act XXXI of 1950 came into force no order had yet been made to which the attribute of finality could attach. In response, the Court rejected the appellant’s contention, observing that, however it may be viewed, a right of appeal in respect of a pending action might be treated as a substantive right vesting in the litigant on the commencement of the action, but the Court did not accept that view and held that no such vested right to obtain a determination with the attribute of finality could be predicated in favour of a litigant merely on the institution of the action. The Court explained that, by the terms of section 5‑B of the East Punjab Act XIV of 1947, finality attaches to an order only when the order is actually made. Even if the law recognised any right to a determination with finality, such a right could not be said to be vested or accrued until the determination is in fact made, at which point the right to finality becomes an existing right, as established in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner. Consequently, the Court concluded that the principle of Colonial Sugar Refining Co. Ltd. v. Irving could not be invoked to support the appellant’s case.

From the passage quoted above, the Court observed that it had not resolved whether a litigant’s right of appeal in a pending action could be regarded as a substantive right that vested at the moment the action was commenced. Consequently, the Court felt it necessary to examine that issue in depth. The factual background begins with the case of Ramakrishna Iyer v. Sithai Ammal, where on 4 August 1923 a magistrate granted sanction under section 195 of the Code of Criminal Procedure to prosecute the respondent for allegedly making a false accusation of dacoity against the appellant. At that time, subsection 6 of section 195 stipulated that the sanction could be either revoked or affirmed by any authority to which the original sanctioning authority was subordinate. Following the grant of sanction, the complainant filed a petition of complaint. On 22 August 1923 the respondent sought revocation of the sanction, but no order was issued in response. Subsequently, on 1 September 1923, section 195 of the Code of Criminal Procedure was amended. The amended provision read in part: “195. (1) No court shall take cognisance— (a) … (b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on the complaint in writing of such court or of some other court to which such court is subordinate.” After this amendment became effective, the respondent received notice that prosecution had already been instituted against her. In 1924 she filed another petition requesting revocation of the sanction, and the magistrate subsequently revoked the sanction. The complainant then filed a petition challenging the magistrate’s order of revocation. When this application was dismissed, a Full Bench of five judges of the Madras High Court, presided over by Chief Justice Courts Trotter, referred to the Privy Council decision in Colonial Sugar Refining Co. Ltd. v. Irving and quoted Lord Macnaghten’s judgment as stating the guiding principle. In his judgment, Chief Justice Courts Trotter explained that the matter before the Court was whether the respondent possessed a right to approach the Superior Court and solicit its assistance to correct the error of the lower Magistrate’s Court, and that, based on established authority, this should be treated not merely as a procedural matter but as an enforceable right to invoke the jurisdiction of a higher tribunal. He further expressed the view that the principles involved were embodied in subsection 6 of the relevant statutory provision.

The Court noted that even the strict wording of the amended section 195, as quoted earlier, was not considered to contain any provision that expressly or by necessary implication removed the right that had previously vested in the respondent under the old section 195(6) when a sanction had been granted against her on 4 August 1953, thereby permitting that sanction to be revoked. The Court then referred to the case of Daivanayaka Reddiyar and two others v. Renukambal Ammal, wherein a widow filed a suit for maintenance on 21 March 1921. The suit was valued at rupees 14,600 in accordance with the Court Fees Act (VII of 1870) then applicable. Under section 13 of that Act, appeals were directed to either the district court or the High Court depending on whether the value of the suit’s subject matter was below or above rupees 5,000. Subsequently, on 18 April 1922, the Madras Court Fees Amendment Act (V of 1922) came into force, amending section 7(2) of the old Court Fees Act. The trial court rendered its decree on 13 March 1923, and on 19 April 1923 the defendants lodged an appeal in the High Court. In that appeal the court fee paid amounted to rupees 2,633‑5‑4, calculated according to the valuation prescribed by the amended Act. The plaintiff‑respondent objected, contending that the appeal should have been filed in the district court because, although the suit had been valued at more than rupees 5,000 under the law in force at the time the plaint was filed, the valuation under the amended Court Fees Act at the time of the appeal would have been less than rupees 3,000, rendering the High Court appeal incompetent. The matter was thus referred to a Full Bench for determination of the question: “Does the appeal against the decree in a suit in which the valuation of the relief claimed, according to the law in force on the date of the plaint, was more than rupees 5,000 but at the time of the appeal is less than rupees 5,000 owing to the amendment of the Court Fees Act, lie to the High Court or to the District Court?” The Full Bench, comprising three judges, held that the appeal had been correctly presented before the High Court. In its observation the Bench remarked that it is argued that the provision does not grant any specific right of appearance before the High Court for particular classes of suits, but rather that the right of appeal is given to the court authorized to hear appeals, and that the determination of whether the appropriate forum is the district court or the High Court depends on the valuation of the suit at the time the appeal is filed. The Court found it difficult to accept this argument as distinguishing the present case from that of Colonial Sugar.

The Court noted that in the earlier authority of Refining Company v. Irving (1) the suit, when originally filed, carried a vested right of appeal to a specific tribunal, and that right was later withdrawn by a subsequent enactment. It further explained that the argument advanced by some counsel—that a right removed by a later amendment of a purely fiscal statute is different from a right that depends on substantive law—was untenable. The Court emphasized that the Privy Council had expressly held that such a deprivation of a vested appellate right could not be justified, and that this pronouncement formed a binding principle of law which the Court was obliged to follow. The decision in Bala Prasad and others v. Shyam Behari Lal and others (2), rendered by a single judge who adhered to the Privy Council’s ruling, required no additional analysis, and the Court therefore moved on to consider the more significant case of Ram Singha v. Shankar Dayal (3). In that case a suit for rent had been instituted on 12 July 1926, at which time the North‑Western Provinces Tenancy Act, 1901 (U.P. Act II of 1901) was in operation. Section 177 of that Act conferred a right of appeal from the decree of an Assistant Collector to a District Judge when the amount or value of the subject‑matter of the suit exceeded Rs 100. Subsequently, on 7 September 1926, the Agra Tenancy Act (U.P. Act III of 1926) came into force, repealing the 1901 Act. Section 240 of the new Act reproduced the earlier Section 175, stipulating that no appeal could lie from any decree or order passed under the Act except as expressly provided therein. The substantive portion of the new Section 242, which corresponded to the former Section 177, stated: “242 (1). An appeal shall lie to the District Judge from the decree of an Assistant Collector of the first class or of a Collector in any of the suits included in Group A of the Fourth Schedule in which (a) the amount or value of the subject‑matter exceeds rupees two hundred; or (b)….” After the new Act had become effective, on 23 December 1926 the Assistant Collector issued a decree in the suit. The defendant then filed an appeal to the District Judge, who returned the memorandum of appeal. The defendant subsequently presented the memorandum before the Collector of Etawah, who held that he lacked jurisdiction to entertain the appeal and consequently referred the matter to the High Court under Section 207 of the Agra Tenancy Act. The reference was placed before a Bench of the Allahabad High Court, which then referred the pivotal question to a Full Bench: “Whether the right to file an appeal is governed by the law in force on the date the suit was instituted, or by the law applicable at the date of the decision of the suit, or at the date of filing the appeal?”

In the reference before the Full Bench, the question that had been posed was whether the right to file an appeal was determined by the law applicable at the time the suit was instituted or by the law in force at the time the appeal was filed. The Bench, consisting of three judges and presided over by the then Acting Chief Justice of Allahabad, Mr. Justice Sulaiman, observed that the issue required a decision on the moment at which the litigant’s right of appeal became vested. The Bench noted that the principle applicable to that question had been articulated by the Privy Council in the case of Colonial Sugar Refining Company Ltd. v. Irving (1905) A.C. 369. In that case, an appeal ordinarily lay to the Privy Council from an order of the Supreme Court, but while the appeal was pending, the law was amended to permit an appeal to the High Court. The Privy Council held that the amendment could not deprive the party of the pre‑existing right to appeal to the Privy Council, and Lord Macnaghten expressed that “to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.”

The Bench further pointed out that the same principle had been reaffirmed by the Privy Council in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner (1919) A.C. 352, and had been adopted by a Full Bench of the Madras High Court in Daivanayaga Reddiar v. Renukamba, Ammal (1927) I.L.R. 50 Mad. 857. The view had also been endorsed by Justice Dalal in Bala Prasad v. Shyam Behari Lal (1928) A.L.J. 406. After citing these authorities, the Full Bench answered the reference by stating that the right to appeal to the District Judge was governed by the law prevailing on the date the suit was instituted, and not by the law in force at the date of the suit’s decision or at the date the appeal was filed. The Bench observed that the wording of section 242(1) of the new Act, which had come into force before the decree was rendered, did not contain any express or necessarily implied provision that would extinguish the right of appeal that had vested when the suit was instituted merely because the decree was issued after the amendment. Accordingly, the judgment affirmed that the right of appeal vests in the parties at the moment the suit is instituted and is subject to the law in effect at that time; the subsequent date of decree or filing of the appeal does not affect that vested right unless a later enactment expressly or necessarily removes it. Moreover, the broad language of section 242(1), which provides that “An appeal shall lie to the District Judge from the decree of an Assistant Collector…,” cannot be interpreted as extending to decrees passed after the new Act had become operative.

In the case before the Court, it was observed that a suit had been instituted before the date on which a certain provision came into force. The Lahore High Court, sitting as a Full Bench, adopted and applied the Privy Council decision in Kirpa Singh v Ajaipal Singh and others. That Court considered that it was settled law that the right of appeal was not merely a procedural matter but a vested right that belonged to a party from the moment the action was commenced in the court of first instance. Accordingly, such a right could be removed only by an express statutory provision or by necessary implication. The Court cited several authorities to support this principle, namely [1927] I.L.R. 9 Lah. 284, [1927] I.L.R. 50 Mad. 857, [1928] 26 A.L.J. 406 and [1928] I.L.R. 10 Lah. 165 (Full Bench).

The Court then referred to the decision of a Special Bench of the Calcutta High Court in Sadar Ali v Dalimuddin, describing it as highly instructive. In that case, a suit was filed in the munsiff’s court at Alipur on 7 October 1920 seeking a declaration that the defendant had no right to use a particular pathway and also seeking a permanent injunction against the defendant. The trial court dismissed the suit on 17 July 1924. The plaintiff appealed to a subordinate judge, who dismissed the appeal on 17 July 1926. Subsequently, the plaintiff filed a second appeal in the High Court on 4 October 1926. At that time, clause 15 of the Letters Patent allowed a further appeal to the High Court from the judgment of a single High Court judge, without requiring leave of that single judge, except in certain limited situations that were not material to the present discussion.

While the second appeal was pending, clause 15 of the Letters Patent was amended, and the amendment became effective on 14 January 1928. The amended clause introduced a condition that a further appeal could lie only where the judge who rendered the judgment declared that the case was fit for appeal. The amendment was widely recognized as a measure to curb the rapidly increasing number of Letters Patent appeals from single‑judge judgments in the various High Courts. After the amendment took effect, the single judge dismissed the second appeal on 4 April 1928 and refused to grant leave under the amended clause.

Despite the amendment, on 30 [month missing] 1928 the appellant filed an appeal relying on clause 15 of the Letters Patent as it existed before the amendment. The appellant obtained a rule directing the respondent to show cause why the appeal should not be accepted and to register it without obtaining leave from the single judge. The appellant contended that the amended clause could not be applied to his appeal because doing so would retrospectively impose a new condition, thereby impairing and effectively defeating a substantive right that had vested prior to the amendment. The appellant asserted that when the suit was filed on 7 October 1920, he had acquired, by the law then in force, a substantive right of appeal from the decision of the single judge, and that any interference with that right could not be presumed unless it was clearly expressed in the statute or necessarily intended.

The Court explained that, at the time the suit was filed, clause fifteen of the Letters Patent as then enacted conferred a substantive right of appeal from the decision of the single judge. The Court further held that no intention to undermine that right by adding a new condition, or to impair or endanger it, could be inferred unless the amendment contained clear and express words or an unavoidable implication that such a change was intended. The judgment relied upon the decision of the Chief Justice Garth in the Runjit Singh case, together with other Indian authorities, which treated the original suit and all subsequent appeals from the decree as a single legal proceeding. This approach was based on the principle articulated by West J. in Chinto Joshi v. Krishnaji Narayan, which described the suit, appeal and second appeal as merely successive steps in a series of proceedings that are intrinsically united. Chief Justice Rankin, delivering the opinion of the Special Bench composed of five learned judges of the Calcutta High Court, noted the difficulty of assuming that the amendment to the Letters Patent, which became effective in January of the previous year, was intended for any purpose other than to prevent unreasonable or unduly prolonged litigation. He stressed that it would be unreasonable to presume that the date on which the original suit was filed had any rational relevance for distinguishing cases under the amendment. Aware that it might be “thought difficult to reach a view that the reform is both reasonable and necessary yet should, in effect, be postponed for years,” the Chief Justice placed the burden of proof on the appellant. He stated that the appellant had to demonstrate that the Letters Patent, as they stood on 7 October 1920, granted him an existing right on that date. Despite the complexities involved, the Full Bench concluded that the appellant had satisfied this burden of proof and therefore possessed the right of appeal.

In the judgment recorded at page 518, the learned Chief Justice observed that the reasoning of the Judicial Committee in the Colonial Sugar Refining Company’s case constitutes conclusive authority showing that rights of appeal are not merely procedural matters. According to that authority, a right to approach a superior court is, for the purposes of the present discussion, deemed to arise for a litigant before any decision has been rendered by the inferior court. Accepting this proposition, the Court saw no logical point at which to deny the conclusion that the right of appeal originates on the date the suit is filed. The right does not arise only with respect to Court B when the suit is instituted in Court A, nor does it arise with respect to Court C when the first appeal is lodged before Court B. The Court distinguished this from a “present right of appearance” under section 154 of the Code of Civil Procedure, which is a separate concept. Accordingly, the principle demands that the appeal right be recognized as existing from the commencement of the original suit, rather than being contingent upon subsequent procedural steps.

In the Court’s view, it is essential that a single case should not be governed by a mixture of different procedural systems. The Court observed that, although it is clear that a plaintiff cannot proceed directly to Court C without first passing through Court B, the plaintiff likewise cannot move to Court B until Court A has rendered its decision. Accordingly, the Court held that the right in question must be understood as the right to carry the matter forward to Court C in accordance with the law that then existed. Later, the Special Bench set before itself the question of whether the intent of the Letters Patent required that the provisions apply only to appeals arising from suits that were instituted after 14 January 1928, even though such appeals were heard after that date. The Bench noted that clause 15 of the amended Letters Patent was expressed in broad terms, stating that an appeal could lie from the judgment of a single judge only when that judge, in delivering the judgment, declared the case to be suitable for appeal. Despite this wide language, the Special Bench found no indication in the clause that it was intended to apply only to decrees passed after the amendment came into force, nor that it was meant to extinguish any vested right of appeal that already existed. After stating that “there is nothing in the language of the Letters Patent to evidence this intention, we must enquire whether it is manifest from the subject‑matter,” the Bench examined the substance of the issue. It observed that, in the present case, there was insufficient material on which to reach a firm conclusion that the purpose of the amendment was to bring pending suits under the new system. The Court suggested that a long‑delayed reform might have been considered prudent, and that it would be inappropriate for a court to rely solely on its own opinion regarding the extent to which the right of a third appeal should be respected. In this respect, the Court found the present case to be less compelling than the earlier decision in Bourke v Nutt (1894) 1 Q.B. 725, where a similar argument had been rejected. The Court drew an analogy, noting that if bankrupt individuals were allowed to remain members of school boards, there was no reason to assume that litigants could not continue to enjoy a third appeal, unless a contrary construction of the Letters Patent was shown to be reasonable. The Court cautioned against distinguishing between different forms of excess or dividing such claims in a way that would tolerate them. The Court also referred to the earlier decision in In re Vasudeva Samiar, which dealt with the effect of the amended clause 15 on a pre‑existing right of appeal. In that case, the suit had been filed in the District Munsif’s Court on 30 July 1919, the second appeal was lodged in the High Court on 15 July 1924, and the amendment to clause 15 of the Letters Patent became effective in Madras on 31 January 1928. The second appeal was finally disposed of on 9 February 1929, and an appeal was subsequently filed without obtaining leave from the learned single judge. At that stage, the High Court took objection to the maintainability of the appeal on the ground of the amended Letters Patent.

The Full Bench of five judges was convened to consider whether the appeal could be maintained in view of the amended Letters Patent. The matter was placed before the Full Bench on the order of the Chief Justice, Coutts Trotter C.J. The Chief Justice expressed complete agreement with the reasoning previously advanced by Rankin C.J. and indicated that he had no counter‑argument to that reasoning. He specifically rejected the contention that clause fifteen of the amended Letters Patent would become a dead letter for many years, describing such a result as regrettable. He explained that the amendment had clearly been enacted to alleviate the heavy burden of second appeals, which at that time had risen to a startling five thousand cases, and that it was unfortunate that the amendment would be unable to provide substantial relief for a period of five years. The Court chose to set aside his remarks relating to the case of Canada Cement Co. v. East Montreal (Town of) for discussion at a later stage. The essential point for the present analysis was that the Full Bench did not regard the opinion expressed in that case as being in conflict with the earlier decision in Colonial Sugar Refining Co. Ltd. v. Irving, a decision that had been authoritatively adopted and later reaffirmed in the case of Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi.

The learned Chief Justice concluded his judgment by stating, reluctantly, that the institution of a suit carries with it the implication that all appeals existing at the time of the suit’s commencement remain preserved throughout the suit’s lifetime, unless the legislation has either abolished the court to which such an appeal lay or has expressly, or by necessary intendment, given the Act a retrospective effect. He further agreed with the Calcutta High Court that the language of the amended Letters Patent does not support an interpretation that would extinguish those appeals. The principle articulated by the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving was subsequently applied by a Full Bench of the Nagpur High Court in the case of Radhakishan v. Shridhar. The same doctrine has also been employed by Indian courts in situations where later legislation did not entirely remove the right of appeal but imposed onerous conditions upon it, as illustrated by the case of Nagendra Nath Bose v. Mon Mohan Singh. In that case the plaintiff filed a suit for rent amounting to Rs 1,306‑15‑0, obtained a decree, and the defaulting tenement was sold on 20 November 1928 for Rs 1,600. An application under Order 21, Rule 90 of the Code of Civil Procedure was filed on 19 December 1928 by the petitioner, who was one of the debtors, seeking to set aside the sale.

The petitioner had sought a decree against the judgment debtors for setting aside a sale in the civil suit. The application was dismissed by the court because the petitioner failed to appear at the scheduled hearing proper. Subsequently the petitioner appealed to the District Judge of Hooghly, seeking admission of the appeal to review the earlier order. The District Judge denied admission of the appeal because execution amount had not been deposited as required by proviso to section 174(c) of the Bengal Tenancy Act, which was amended by an act of 1928. The amount in question was the sum recoverable as reported in I.L.R. 1950 Nag. 532 (F.B.), 34 C.W.N. 1009, and A.I.R. (1931) Cal. 100. The petitioner argued that the amendment, which became effective on 21 February 1929, could not affect his right of appeal from the decision on the application dated 19 December 1928. Mitter J. expressed his view that the petitioner’s contention was well‑founded and should prevail in accordance with established legal principles. He explained that the right of appeal is a substantive right, not merely procedural, and therefore essential to justice. He noted that before the 1928 amendment, an appeal against an order refusing to set aside a sale was provided under Order 43, rule (1) of the Code of Civil Procedure. That effect also applied when the application to set aside the sale was dismissed for default by the court. He observed that that right was not subject to any restriction like that later imposed by section 174(5) proviso under the law.

Consequently the court was obliged to admit the appeal irrespective of whether the appellant had deposited the amount recoverable on execution of the decree. By making such deposit a condition precedent, the amendment introduced a new restriction on the right of appeal, attaching a condition to its admission. He further stated that there was no doubt the new provision clearly affected the right of appeal in law. In the absence of an explicit enactment, the amendment could not apply to proceedings that were pending when the amendment came into force. Although the appeal was filed after the amendment became effective, that fact was immaterial because the relevant date for determining the right was the date of the original proceeding that eventually led to the appeal. That decision was subsequently approved by a Bench of this Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh case. In that case, on 28 November 1947, the appellant filed a return with the Sales Tax Officer official. At that time section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947 provided that no appeal against an assessment order would be entertained. Such appeal could proceed only if the appellant had shown payment of the tax he acknowledged as due. While the assessment of the appellant’s return was pending, the Act was amended on 25 November 1949 to require that an appeal be accompanied by satisfactory proof of payment of the tax. The proof had to relate to the tax in respect of which the appeal was preferred by the appellant.

In the matter before the Board of Revenue, the assessment officer who received the original return made a formal assessment on 8 April 1950. The appellant then filed an appeal on 10 May 1950, but he did not deposit the tax amount that was the subject of the appeal. The Board of Revenue held that the amended provision of section 22(1), which required payment of the tax before an appeal could be entertained, applied to the case because the assessment had been made after the amendment became effective. Consequently, the Board rejected the appeal on the ground that the appellant had failed to satisfy the payment requirement.

The Bench of this Court examined the issue in light of a leading decision of the Privy Council and other authorities previously cited. It observed that the right of appeal is a substantive right, not merely a procedural formality, and that such a right becomes vested at the moment the original proceedings are initiated. The Court further noted that a vested right of appeal cannot be removed except by an express legislative enactment or by necessary implication. Applying this principle, the Court held that the appellant possessed a vested right of appeal when the assessment proceedings were originally commenced in 1947. Accordingly, the applicable law was the law in force on that date, and the amendment enacted in 1950 could not be treated as a mere procedural modification or a regulation of the manner of exercising the appeal right if it effectively curtailed the right itself. Because the 1950 amendment did not contain any express or necessary provision granting it retrospective effect, the amendment could not be applied to the appellant’s case. Therefore, the appeal could not be dismissed on the basis of non‑payment of the tax in respect of which the appeal had been filed.

The Court also referred to the earlier decision in Ganpat Rai Hiralal v. Aggarwal Chamber of Commerce Ltd. (1) as illustrative. That case involved two winding‑up proceedings concerning the Marwari Chamber of Commerce Ltd. and the Aggarwal Chamber of Commerce Ltd. The Official Liquidator had settled the contributory lists in both matters. On 4 June 1946, a payment order of Rs 24,005‑7‑3 was issued by the court in the Marwari case while the Patiala States Judicature Firman of 1999 was in force. Under section 44 of that Firman, a certificate of fitness was required for an appeal from a single‑judge judgment only when the judgment, decree or order was rendered in the exercise of civil appellate jurisdiction. After that payment order, the Pepsu Ordinance (X of 2005) was promulgated, and section 52 of the Ordinance expanded the requirement for a certificate of fitness to all appeals, including those arising out of winding‑up proceedings. On 2 February 1950, an application was filed under section 152 of the Civil Procedure Code seeking to amend the Marwari payment order by substituting Rs 21,805‑7‑3 for the original amount. The application was dismissed on 16 March 1950 by the judge, who refused to grant the requisite certificate of fitness. An appeal was subsequently lodged against that dismissal.

In the first matter, the appellant filed an appeal against the order refusing to amend the payment order without obtaining a certificate of fitness. That appeal was dismissed on 1 May 1950 because the required certificate had not been produced. The appellant then approached this Court, relying on a certificate of fitness that had been granted by the Pepsu High Court. In the second matter, the payment order against the Aggarwal Chamber of Commerce Ltd. had been made on 18 January 1949 by the Liquidation Judge, and an appeal against that order had been lodged on 19 February 1949 when the Patiala States Judicature Firman of 1999 was still in force. Subsequently the Pepsu Ordinance (X of 2005) came into operation, and the High Court dismissed the appeal. The appellant then filed a further appeal in this Court, this time on the basis of a certificate of fitness that the High Court had issued. The central issue for determination was whether the appellant possessed a vested right of appeal to this Court in either of the two cases.

The Court declined the appeal concerning the Marwari Chamber of Commerce Ltd. not on the ground that the appellant lacked any vested right of appeal, but because the application for amendment that had been filed on 2 February 1950 constituted an independent proceeding. Since that proceeding was instituted after the Pepsu Ordinance (X of 2005) had become effective, the right of appeal arising from it was governed by that Ordinance, which required a certificate of fitness under section 52. The Court observed that there was no justification for treating the amendment petition as a continuation of the original suit; rather, it was an independent proceeding, albeit connected with the order whose amendment was sought, and consequently it was subject to the law in force on its filing date, namely the Ordinance that mandated a certificate. Conversely, the Court allowed the appeal in the Aggarwal Chamber of Commerce Ltd. case, following the principle articulated in Colonial Sugar Refining Co. Ltd. v. Irving. In that precedent, no new proceeding had been created, and the right of appeal that arose from the original proceeding leading to the payment order had vested at the commencement of those proceedings, which pre‑dated the coming into force of the Pepsu Ordinance (X of 2005). The Court noted that the same principle had been applied in cases where court fees were increased by subsequent amendment of the Court Fees Act, citing R. M. Seshadri v. Province Madras, In re Reference under section 5 of Court Fees Act, and Sawaldas Madhavdas v. Arti Cotton Mills Ltd., among others. The Court further indicated that additional decisions adopting this principle would be discussed later in relation to the construction of Article 133 of the Constitution. From the authorities cited, the Court extracted several doctrinal points, the first of which was that the legal pursuit of a remedy, including suit, appeal and second appeal, constitutes a series of steps that are intrinsically linked and should be regarded as a single legal proceeding.

It was observed that the steps of a suit, an appeal and a second appeal form an intrinsically unified series and must be treated as a single legal proceeding. The Court further explained that the right of appeal is not a mere procedural formality but constitutes a substantive entitlement. The authorities cited in support of this proposition were A.I.R. 1954 Mad. 543, I.L.R. 1955 Bom. 530 and A.I.R. 1955 Bom. 332 together with 57 Bom. L.R. 304. The Court noted that when a suit is instituted, it carries the implication that all appeal rights then existing are preserved for the parties throughout the entire duration of the suit. Moreover, the right of appeal was described as a vested right, meaning that the entitlement to approach a superior court accrues to the litigant from the moment the litigation commences. Although the actual exercise of the right may occur only after an adverse judgment, the governing law is the law that was in force at the date of institution of the suit or proceeding, not the law in force at the time of decision or at the time the appeal is filed. The Court further held that such a vested right of appeal can be removed only by a later enactment, and only if that enactment expressly provides for the removal or does so by necessary intendment.

Applying these principles to the instant case, the suit had been instituted on 22 April 1949. Accordingly, the right of appeal vested in the parties on that date and was to be governed by the law prevailing on that date. Consequently, the parties obtained the right, if they were unsuccessful, to appeal from the sub‑court to the High Court and from the High Court to the Federal Court, as allowed under the Federal Court (Enlargement of Jurisdiction) Act, 1947 read with clause 39 of the Letters Patent and sections 109 and 110 of the Code of Civil Procedure, the conditions of which were satisfied. The question before the Court was whether that vested right had been taken away expressly or by necessary intendment by any subsequent enactment. The respondents argued that the provisions of the Constitution had removed the right. In construing constitutional articles, the Court recalled the cardinal rules of construction, citing Hough v. Windus which advises that statutes should, wherever possible, be interpreted so as to respect vested rights. The Court emphasized the golden rule that, absent any clear indication of retrospective effect, a statute cannot be construed to alter the law applicable to a claim that was already in litigation at the time the Act was passed. The Court also referred to Rankin C.J.’s observation in Sadar Ali v. Dalimuddin that, unless the contrary is shown, a provision that removes jurisdiction is itself subject to an implied saving for the litigant’s vested right.

In the case of Janardan Reddy v. The State, Chief Justice Kania, while delivering the judgment of the Court, observed that the Constitution was, in general, intended to operate prospectively and should not be given retroactive effect unless an explicit provision to that effect was included. The same principle was later restated in Keshavan Madhava Menon v. The State of Bombay and finally in Dajisaheb Mane and Others v. Shankar Rao Vithal Rao, references to which the Court indicated would be discussed in greater detail later.

The Court then emphasized the need to consider the surrounding circumstances that existed when the Constitution was being framed, because the framers had to provide for the various situations that might arise. In interpreting the Articles that dealt with the appellate jurisdiction of this Court, it was important to recall the several categories of persons who, at the time the Constitution came into force, had an interest in the right of appeal from judgments, decrees or final orders of a High Court to a higher court. The Court identified seven distinct categories of such persons. The first category comprised individuals who were dissatisfied with a judgment of a High Court in British India that had been passed before the Constitution commenced, in a civil proceeding that stemmed from a suit or proceeding instituted before the Constitution, and who had either already filed an appeal to the Federal Court or whose appeal to the Privy Council had been transferred to the Federal Court and was pending in that Court immediately before the Constitution began; the Court cited Leeds and County Bank Ltd. v. Walker (1883) 11 Q.B.D. 84 at page 91, Moon v. Durden (1848) 2 Ex. 22; 76 R.R. 479 at p. 495, [1950] S.C.R. 940 at pp. 946‑947, [1951] S.C.R. 228, and [1955] 2 S.C.R. 872 at pp. 876‑877 for this proposition. The second category consisted of persons who were aggrieved by a High Court judgment passed before the Constitution in a civil proceeding that arose from a suit instituted before the Constitution, but who had only filed an application for leave to appeal to the Federal Court; that application was still pending before the Federal Court immediately before the Constitution commenced and no formal appeal had yet been filed. The third category covered those who were dissatisfied with a High Court judgment passed before the Constitution in a civil proceeding that originated from a suit instituted before the Constitution, for which no application for leave to appeal to the Federal Court had been filed, yet the time for making such an application had not expired at the moment the Constitution came into effect. The fourth category included persons who might be aggrieved by a judgment of a High Court delivered after the Constitution’s commencement in a civil proceeding that arose from a suit or proceeding also filed after the Constitution became operative.

In this case the Court set out several distinct categories of persons who might be aggrieved by judgments of High Courts. The first category comprised those who were dissatisfied with a judgment passed by a High Court in a civil proceeding that arose out of a suit or proceeding instituted in the court of first instance before the Constitution came into force. The second category included persons who were aggrieved by a judgment of a High Court rendered after the Constitution commenced, where the suit or proceeding itself had been filed before the Constitution. The third category covered individuals who were dissatisfied with a judgment of a High Court in a Princely State before the Constitution, and who had already appealed that judgment to the Privy Council of that State, with the appeal still pending at the moment the Constitution began to operate. The fourth category involved persons who were aggrieved by such a judgment of a Princely State High Court but who had not yet filed an appeal; nevertheless, their application for leave to appeal to the Privy Council of that State was pending before the Privy Council immediately prior to the Constitution’s commencement. The fifth category comprised those who might be aggrieved by a judgment of a High Court in the territory of India that was passed after the Constitution came into effect, where the underlying civil suit or proceeding had also been filed after the Constitution became operative. The Constitution‑makers were fully aware, through a series of decisions of the highest courts, that the right of appeal to the Federal Court vested in a litigant at the date of institution of the suit or proceeding in the court of first instance, and not on the later date of judgment, filing of appeal, or any subsequent procedural step. They therefore knew that this vested right already existed for persons falling within categories (i) to (iv) at the moment their suit or proceeding was instituted, regardless of when the High Court judgment might be rendered. The Constitution‑makers also knew that the vested right was governed by clause 39 of the Letters Patent together with the Federal Court (Enlargement of Jurisdiction) Act 1947, the Abolition of Privy Council Jurisdiction Act 1949, and sections 109 and 110 of the Code of Civil Procedure. Moreover, they were conscious of the rights of persons falling within categories (v) and (vi). With full knowledge of all these rights, the Constitution‑makers enacted the provisions they deemed appropriate. The essential question therefore was whether the Constitution, either expressly or by necessary implication, removed this vested right of appeal from any of the identified categories. To answer this, the Court examined the relevant constitutional provisions and other statutes. Article 395 of the Constitution repealed both the Indian Independence Act 1947 and the Government of India Act 1935, together with all enactments that amended or supplemented the latter, but it expressly preserved the Abolition of Privy Council Jurisdiction Act 1949. The repeal of the Government of India Act 1935 consequently entailed the abolition of the Federal Court, which had been created under that Act.

Because the Federal Court created by the Government of India Act, 1935 ceased to exist, the Constitution introduced a new apex court. Article 124 established the Supreme Court, and Article 129 designated it as a court of record vested with all powers appropriate to that status, including authority to punish for contempt. Article 131 granted the Supreme Court original jurisdiction over the categories of disputes enumerated therein. The Constitution also delineated the appellate jurisdiction of the Supreme Court. Article 132 empowered the Supreme Court to entertain appeals from judgments, decrees or final orders of any High Court situated in India, whether the proceedings were civil, criminal or of another nature, provided that the High Court issued a certificate stating that the case raised a substantial question of law concerning the interpretation of the Constitution. Article 133, in subsection 1, specified the conditions under which a civil appeal may lie to the Supreme Court: the High Court must certify that (a) the disputed amount or value is not less than twenty thousand rupees or any higher sum that Parliament may later prescribe; or (b) the decision involves directly or indirectly a claim or question relating to property of at least that amount; or (c) the case is appropriate for appeal to the Supreme Court. Additionally, if the appealed judgment confirms a lower court’s decision in a matter not covered by sub‑clause (c), the High Court may still certify that the appeal raises a substantial question of law. Article 134(1)(c) authorized the Supreme Court to hear an appeal from any judgment, final order or sentence in a criminal proceeding of a High Court, again provided that the High Court furnishes the required certificate. Article 135 declared that, until Parliament enacts a different law, the Supreme Court would retain jurisdiction and powers over any matter not covered by Articles 133 or 134 if such jurisdiction and powers had been exercised by the Federal Court immediately before the Constitution commenced, according to any existing law. Article 136 gave the Supreme Court discretionary authority to grant special leave to appeal in specific cases. Article 37 conferred upon the Supreme Court the power to review its own judgments. Further provisions for expanding the Court’s jurisdiction or adding ancillary powers were contained in Articles 138 to 140.

Article 372 dealt with the continuity and adaptation of pre‑constitutional law. Subsection (1) stipulated that, notwithstanding the repeal of the enactments mentioned in Article 395, all laws that were in force throughout India just before the Constitution came into effect would remain operative until they were altered, repealed or amended by a competent legislature or other authorized body. Subsection (2) provided that, to bring any existing law into conformity with the Constitution, the President could, by order, make necessary adaptations or modifications, either by repeal or amendment, effective from a date specified in the order. Such presidential adaptations or modifications could not be challenged in any court of law. In the exercise of the powers granted by Article 372(2), the President issued the Adaptation of Laws Order, 1950, which came into force concurrently with the Constitution on 26 January 1950, thereby ensuring that the legal framework preceding the Constitution was suitably aligned with the new constitutional provisions.

In this case the Court explained that article 395, subject to the other provisions of the Constitution, provided that all the law in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. The Court further noted that paragraph (2) of the same article authorised the President, for the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of the Constitution, to make by order such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and to specify a date from which the law shall have effect subject to the adaptations and modifications so made, and that any such adaptation or modification shall not be questioned in any court of law. Acting under the powers conferred on him by article 372(2), the President promulgated the Adaptation of Laws Order, 1950, which came into force simultaneously with the Constitution on 26 January 1950. In the first schedule of that Order, which dealt with the Central Acts, the adaptations made in the Code of Civil Procedure were set out. It was noted that sections 109 and 110 of the Code of Civil Procedure were not deleted altogether but were modified only. The sections as adapted run as follows: 109. Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provision hereinafter contained, an appeal shall lie to the Supreme Court‑ (a) from any judgment, decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction; (b) from any judgment, decree or final order passed by a High Court in the exercise of original civil jurisdiction; and (c)from any judgment, decree or order, when the case, as hereinafter provided is certifide to be a fit one for appeal to the supreme Court. 110. In each of the cases mentioned in clauses (a) and (b), of s. 109, the amount or value of the subject‑matter of the suit in the Court of first instance must be twenty thousand rupees or upwards, and the amount or value of the subject‑matter in dispute on appeal to the Supreme Court must be the same sum on upwards, or the judgment, decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value, and where the Judgment. decree or final order appealed from affirms the decision of the Court immediately below the Court passing such judgment, decree or final order, the appeal must involve some substantial question of law. This adaptation, however, was subject to the provisions of cl. 20 of the Order itself, which runs as follows: 20. Nothing in this Order shall affect the previous operation

The provision declares that nothing shall affect anything that has been done or suffered under any existing law, nor any right, privilege, obligation or liability that has already been acquired, accrued or incurred under such law, and it also does not affect any penalty, forfeiture or punishment incurred in respect of an offence that was already committed against that law. The effect of the foregoing provisions may be summarised briefly. The Constitution, by Article 395, repealed the Government of India Act and consequently abolished the Federal Court. Nevertheless, the Constitution continued the operation of the Abolition of Privy Council Jurisdiction Act, 1949, which provided that the Federal Court, in addition to the powers conferred on it by the Federal Court (Enlargement of Jurisdiction) Act, 1947, would exercise all appellate powers that had earlier been exercised by the Privy Council. Although the Federal Court (Enlargement of Jurisdiction) Act, 1947, which amended or supplemented the Government of India Act, 1935, was later repealed, the provisions of that Act were nonetheless kept in force under Article 372(1), subject to the other provisions of the Constitution. The Adaptation Order subsequently amended Sections 109 and 110 of the Code of Civil Procedure, inter alia, by raising the monetary valuation threshold from Rs 10,000 to Rs 20,000; however, by virtue of Clause 20 of the Order, that amendment did not affect any right, privilege, obligation or liability already acquired, accrued or incurred under any existing law. The true implication of these provisions is that the pre‑existing right of appeal to the Federal Court continues to exist, and the old law that created that right of appeal also remains in force to support the continuation of that right. Because the Federal Court has been abolished, the Supreme Court steps in as the substitute machinery for giving effect to the exercise of that right of appeal. Since the old law continues to exist for the purpose of supporting the pre‑existing right of appeal, that old law must govern the exercise and enforcement of the appeal right, although its continuance is subject to the other provisions of the Constitution. Turning to the Constitution, Article 374(2) provides for the transfer of all suits, appeals and proceedings, whether civil or criminal, that were pending in the Federal Court at the commencement of the Constitution to the Supreme Court, and it invests the Supreme Court with jurisdiction to hear and determine those matters. This provision preserves the vested right of appeal of persons falling within categories (i) and (ii) previously mentioned. It is also conceded that Article 135 preserves the vested right of appeal of persons falling within category (iii), namely those who are dissatisfied with judgments passed by a High Court in former British India before the Constitution’s commencement, in civil proceedings arising out of suits or proceedings instituted before that date, where no application for leave to appeal had been made to the Federal Court before the Constitution came into force. Article 374(4) abolishes the jurisdiction of the authority that had functioned as the Privy Council in the Princely States, which under the Constitution became Part B States, and provides for the transfer of all appeals and other proceedings pending before that authority at the commencement of the Constitution to the Supreme Court for disposal, thereby saving the right of appeal of persons falling within categories (v) and (vi).

The Court explained that the body which had acted as the Privy Council for the princely states—states that, after the adoption of the Constitution, were classified as Part B states—was given authority to transfer all appeals and other proceedings that were pending before it at the moment the Constitution came into force to the Supreme Court for disposal. This transfer provision preserved the right of appeal for individuals who fell within categories (v) and (vi). Individuals who were placed in category (vii) could clearly make use of the right of appeal provided by Article 133 of the Constitution.

The remaining issue, the Court observed, was to determine whether an appeal from a judgment of a High Court rendered after the Constitution came into force, in a civil case that originated from a suit or proceeding instituted before the Constitution and which had created a vested right of appeal in persons classified under category (iv), should be governed by the newly enacted Article 133 or should continue to be governed by the pre‑Constitution law embodied in Article 135.

In deciding this question, the Court referred to several earlier decisions, namely Radha Krishna v. Shridhar, Nandalal v. Hira Lal, Mahant Sidha Kamal Nayan v. Bira Naik, Ramaswami v. Ramanathan, Daji Saheb v. Shankarrao, Mt. Murtu v. Paras Ram and Bhagwantrao v. Viswasrao. Those cases had held that Article 133 was not to be applied retrospectively, and that any vested right of appeal was to be governed by the procedural conditions set out in the Code of Civil Procedure that were in force before the Constitution was adopted. The Court further noted that, under Article 135, the Supreme Court had effectively replaced the Federal Court and had been given the jurisdiction to entertain appeals covered by that article.

The Court then recounted the facts of the case Daji Saheb v. Shankarrao, which it had previously reported. The suit involved a property valued between Rs. 11,000 and Rs. 13,000. The trial court dismissed the suit on 20 December 1946. The High Court, however, reversed that decision and entered a decree in favor of the plaintiff on 8 November 1949. The Bombay High Court subsequently granted a certificate of fitness for appeal, and the matter proceeded before this Court, reported as Daji Saheb Mane v. Shankarrao. On the question of whether the appeal was maintainable, this Court held that Article 133 could not be invoked because (i) its language expressly limited its application to appeals against any judgment, decree or final order in a civil proceeding of a High Court situated in the territory of India, and (ii) at the time the High Court’s decree was pronounced, the defendant possessed a vested right of appeal to the Federal Court, and a certificate of fitness for appeal was necessarily to be granted on 25 January 1950.

Consequently, the Court affirmed that the appeal to the Supreme Court was properly brought under the authority of Article 135 of the Constitution. It explained that the jurisdiction and powers concerning the dispute were exercisable by the Federal Court immediately before the Constitution came into effect, and that those powers continued under the Supreme Court pursuant to the existing law, since the Federal Court had previously possessed the requisite jurisdiction under the Code of Civil Procedure to entertain and hear appeals from a High Court decree that reversed a lower court decree involving property valued at Rs. 10,000 or more.

The Court noted that under the Code of Civil Procedure the jurisdiction existed to entertain and hear appeals from a decree of a High Court which reversed a lower Court decree concerning immovable property valued at ten thousand rupees or more. The respondent argued that Article 133 of the Constitution applied to the appeal. In considering that submission the Court observed, “If we accede to the argument urged by the respondent, we shall be shutting out altogether a large number of appeals, where the parties had an automatic right to go before the Federal Court before the Constitution and which we must hold was taken away from them for no fault of their own, merely because the Supreme Court came into existence in place of the Federal Court. An interpretation or construction of the provisions of the Constitution which would lead to such result should be avoided, unless inevitable.” The Court then turned to two decisions of the Madras High Court that ran counter to the earlier authorities. In Ramaswami Chettiar v. The Official Receiver (2) a Division Bench held that the expression “matter” in Article 135(1) excluded both civil and criminal proceedings and should be understood to mean a matter that was neither civil nor criminal. Applying the maxim expressio unius est exclusio alterius, the Court said the word “matter” in Article 135 must be deemed to exclude civil and criminal proceedings, and the hardship imposed on litigants by this construction was mitigated only by the discretionary power granted to this Court to issue special leave under Article 136. Consequently, litigants who fell within categories (iii) and (iv) would have to rely entirely on the Court’s discretion under Article 136. The Court described this as a poor consolation because such litigants would lose the right of appeal as a matter of right that they formerly possessed under the Code of Civil Procedure and would have to seek a favour dependent solely on the Court’s discretion. The Court further observed that no other High Court had taken this approach and that the decision had been expressly dissented from in Bhagwantrao v. Viswasrao (supra). Accordingly, the Court declared it was not prepared to accept the Madras decision as correct. Finally, the Court referred to Veeranna v. China Venkanna (1), where a Full Bench of three judges of the Madras High Court held that if a judgment was delivered in a civil proceeding of a High Court after the commencement of the Constitution, it was irrelevant whether the civil proceeding had been instituted before or after that commencement; Article 133(1) would apply directly and, if that article applied, Article 135 would not, because Article 135 applied only to matters to which Articles 133 and 134 did not apply. As a result, there would be no right of appeal from such a judgment to this Court if the value of the suit was below the stipulated twenty‑thousand‑rupee threshold.

The Court observed that the subject‑matter of the suit and the appeal did not involve a value of twenty thousand rupees or more. Earlier decisions such as Prabirendra Mohan v. Berhampore Bank Ltd. (A.I.R. 1954 Cal. 289), Ram Sahai v. Ram Sewak (A.I.R. 1956 All. 321), Tajammul Husain v. Mst Qaisar Jahan Begam (A.I.R. 1956 All. 638) and The Indian Trade and General Insurance Co. Ltd. v. Raj Mal Pahar Chand (A.I.R. 1956 Punj. 228) were all cited as authority. Consequently, the Court deemed it necessary to examine in detail the decision rendered by the Full Bench of the Madras High Court. In that precedent, the suit had been instituted in 1945 in the court of the subordinate Judge of Kakinada for the purpose of partition and possession. The subordinate Judge initially entered a preliminary decree, but ultimately the High Court set aside that decree on 23 August 1951. The monetary value of the suit lay above ten thousand rupees but remained below twenty thousand rupees. The learned judges distinguished the earlier cases previously mentioned, which counsel had relied upon to argue that the appeal was maintainable on the ground that, among other points, the judgments appealed from in those cases had been pronounced by the High Courts before the commencement of the Constitution. The Court noted that it was fully conceded that the filing of a suit carried with it the implication that all appeals then in force would be preserved for the parties throughout the subsequent course of the suit, as established by the Full Bench of five Judges of that Court. However, the judges also pointed out two recognised exceptions to the application of that rule. The first exception arose where a competent enactment expressly or impliedly removed the right of appeal with retrospective effect. The second exception occurred where the court to which an appeal would have been directed at the commencement of the suit was abolished. Reference was made to the case of Canada Cement Co. Ltd. v. East Montreal (Town of) and a passage from the judgment of Coutts Trotter C.J. in In re Vasudeva Samiar was quoted as an excellent summary of the effect of that decision. The Court reproduced the conclusion found on page 1086, which stated: “Now, the suit in the present case was instituted in 1945. On that date the final Court of Appeal was the Privy Council. Strictly speaking, if any right was vested in the parties to the suit on the date of its institution, it was a right to finally appeal to the Privy Council. But from 1 February 1948, such a right was expressly abolished. There was no doubt no abolition of a Court as such, but substantially that was the result. From that day the Privy Council ceased to be a Court of Appeal from the Indian High Courts. Such right as was vested in the parties to the suit to appeal to the Privy Council, therefore, came to an end on that day. Instead, the parties may be said to have obtained an alternative right…”

In this case the Court noted that the right of appeal had been transferred to the Federal Court, but stressed that this was not because the parties possessed a vested right; rather, the transfer resulted from the Federal Court (Enlargement of Jurisdiction) Act, which expressly provided for the substitution of the final appellate forum in section 3 of that Act. The Court then observed that the most that could be said in favour of the petitioner is that, immediately before the Constitution came into force, the law then in force gave parties in this matter a right to appeal to the Federal Court. When the Constitution abolished that Court, the question arose whether any rights were substituted for those that existed at that time. Article 374(2) specifically provides that all suits, appeals and proceedings, civil or criminal, which were pending in the Federal Court at the commencement of the Constitution shall be transferred to the Supreme Court, which shall have jurisdiction to hear and determine them. However, the Court found no provision dealing with appeals or other proceedings that were not pending in the Federal Court at the commencement of the Constitution but might have been taken to the Federal Court or to the High Court in respect of an appeal to the Federal Court. There was no indication as to what should happen to such proceedings that had not been commenced by the date of the Constitution. From the quoted passages it is clear that the Madras Full Bench based its reasoning on the premise that a vested right of appeal was attached to a particular court, and that when that court was abolished the vested right terminated. The Full Bench then held that a new court had been created and a new right of appeal was granted on different terms, but that no provision existed for filing appeals to the new court in cases where appeals could previously have been filed to the now‑defunct court. Consequently, the Full Bench concluded that there was no right to appeal to the new court, despite the doctrine of vested rights. In other words, the Full Bench apparently placed the present matter within the second exception it had previously identified: namely, that the court to which the appeal was directed at the date the suit was commenced had been abolished, and therefore the vested right of appeal ceased to exist. The Full Bench supported this conclusion by referring to the decision in Canada Cement Co. Ltd. v. East Montreal (Town of). Turning to the facts of that Canadian case, the Circuit Court of Montreal rendered a judgment on 5 January 1921 against the appellant. The appellant sought to appeal to the King's Bench (Appeal Side) for the Province of Quebec. The respondent moved to dismiss the appeal on the ground that it was not maintainable. On 26 April 1921 the King's Bench held that no appeal lay and that the Circuit Court judgment was final. The appellant then appealed to the Privy Council, and the respondent applied to the Privy Council to quash the appeal on the ground of incompetence. Before the Judicial Committee three points were raised. The first point argued that because the jurisdiction of the Circuit Court derived from the Cities’ and Towns’ Act, 1909, all rights of appeal must be found in that Act, and since that Act gave no right of appeal, none existed. The Judicial Committee rejected this argument. The second point urged was that the Circuit Court was governed by

On 26 April 1921 the King's Bench (Appeal Side) declared that no appeal was available and that the judgment of the Circuit Court had become final. After that decision the appellant sought a further appeal to the Privy Council. The respondent then moved before the Privy Council to have the appellant’s application dismissed, contending that the appeal to the Privy Council was incompetent. The Judicial Committee considered three separate arguments raised by the respondent. The first argument asserted that the Circuit Court derived its jurisdiction from the Cities’ and Towns’ Act of 1909 and that any right of appeal must therefore be found in that Act; because the Act did not provide for an appeal, the respondent claimed that no appeal could lie. The Judicial Committee rejected this submission, holding that the authority conferred by article 5755 to bring proceedings before the Circuit Court made such proceedings part of the ordinary business of that court, and that the right of appeal which existed from the judgment of the Circuit Court applied to those proceedings.

The second argument put forward was that the Circuit Court was governed by the Civil Procedure Code and that it was necessary to examine whether the Code contained any provision for an appeal. The Committee examined various sections of the Code and concluded, in agreement with the respondent, that none of those sections created a right of appeal, and therefore upheld this point. The third and final argument, which is crucial for the present analysis, concerned the effect of Quebec Statute 10 Geo. 5 c. 79. That statute declared that the entire set of sections of the Code of Civil Procedure, including those dealing with the Circuit Court and the right of appeal, were to be replaced by other provisions, and that, as far as the Circuit Court was concerned, the provisions relating to appeal were completely omitted. Section 42 of the statute, however, provided that the Court of King’s Bench would acquire jurisdiction over all matters arising from any court where a legal right of appeal existed, while section 64 stated that “unless otherwise provided by this Act, all cases, matters or things which, at the time of its coming into force, were within the competence of the Court of Review shall be within the competence of the Court of King’s Bench, sitting in appeal.” The Judicial Committee accepted this contention. Lord Buckmaster, delivering the judgment of the Committee, observed that the appeal in question had not been lodged when the statute was enacted, although the proceedings before the Circuit Court had already commenced. He explained that the statutes which had previously granted any right of appeal were replaced by provisions that granted none, and that section 64 must be read as qualified by the provision that the powers of the Court of Review concerning the Circuit Court had been withdrawn; consequently, to that extent the new statute “had otherwise provided”.

In the passage quoted, the Court observed that the appeal was declared incompetent for reasons other than the mere abolition of the court that originally had jurisdiction to hear the appeal. The Court explained that the incompetence did not arise because the court to which an appeal lay at the time the suit was instituted had been abolished, thereby extinguishing the appeal right, nor because a new court had been created in its place without any reference to a vested right of appeal. Instead, the Court held that the new court which succeeded the original appellate court was granted jurisdiction over all cases “unless otherwise provided by this Act”. The Act in question had wholly repealed the sections of the Code that dealt with the Circuit Court and the rights of appeal, and substituted them with new provisions that entirely omitted any reference to an appeal from the Circuit Court. Consequently, the statute was said to have “had otherwise provided”. In effect, the case fell within the first of the two exceptions described earlier: the vested right of appeal had been expressly removed or removed by necessary implication, rather than the second exception where the appellate court had been abolished “simpliciter”. Because the matter fell within the first exception, the decision could not be used to support the Full Bench’s conclusion.

The judgment of the Madras Full Bench, however, appears to have been based on a different interpretation. The Full Bench seemed to assume that the Constitution had simply abolished the Federal Court “simpliciter”, and that this abolition automatically terminated the pre‑existing vested right of appeal to that Court. The Full Bench further argued that, since no new statutory right of appeal was granted to the newly created Supreme Court, no appeal could lie to it. If that line of reasoning were accepted, then the earlier decision in Colonial Sugar Refining Co. Ltd. v. Irving would have to be read in the same way. Adapting the language of the Madras judgment, one could say that, at the moment the suit was instituted in the court of first instance, the only vested right of final appeal was to the Privy Council. Although the Privy Council was not formally abolished, in substance it ceased to function as an appellate court from the Queensland Supreme Court after the amendment. As a result, the vested right to appeal to the Privy Council ended when the amendment came into force, and the parties obtained an alternative right of appeal to the High Court of Australia. Consequently, under that reasoning, no appeal would remain to the Privy Council. If the Madras High Court’s reasoning were correct, the Privy Council

In discussing the authority of the Privy Council, the Court observed that it would be inappropriate to maintain that the decision in the case of Colonial Sugar Refining Co. Ltd. v. Irving had been wrongly decided, because no party had put forward such an argument and, in the Court’s view, it could not be entertained. The Court explained that in that case the Privy Council had set out a principle which, according to the Privy Council itself, was well‑settled by a series of decisions dating back to the era of Lord Coke. The Court noted that this principle had subsequently been adopted by Full Benches of virtually every High Court in India and that it had never been met with dissent or serious doubt. The Court further stressed that more than fifty years had elapsed since that principle had been relied upon, during which time innumerable appeals had been filed and allowed, the rights of parties had been determined, and titles to property had been declared on its basis. Consequently, the Court held that it was too late to overturn a principle that had formed the foundation of appellate practice for such a long period.

Having accepted the correctness of the principle laid down by the Privy Council, the Court turned to the remaining issue, namely whether the Constitution had expressly or by necessary intendment removed the right of appeal that vested in the parties at the time the suit was instituted in the court of first instance. The Court rejected the contention that Article 133 of the Constitution had taken away that vested right. It observed that Article 133 contained no language that expressly stripped away the right of appeal from any judgment, decree or final order of a High Court that arose out of a civil proceeding instituted before the Constitution came into force. The Court asked whether the article disclosed any necessary intendment to that effect and found none. The argument advanced by some authorities was that Article 133 granted a right of appeal from any judgment, decree or final order of a High Court made after the Constitution, provided the conditions in the article were satisfied, and that, by implication, it denied any right of appeal from judgments made after the Constitution where those conditions were not fulfilled, irrespective of when the original suit was filed. The Court pointed out that the wording of Article 133 merely refers to “any judgment, decree or final order of a High Court” and does not qualify those judgments as being “passed after the Constitution.” Therefore, when an application for leave to appeal is made after the Constitution came into force, a judgment, decree or final order that was rendered before the Constitution can still correctly be described as a judgment, decree or final order of a High Court. The Court acknowledged the argument that the Constitution is prospective and therefore should be read as applying only to judgments passed after its commencement. However, the Court noted that if the prospectivity of the Constitution were applied to the date of the judgment, the same reasoning would logically extend to the date of institution of the suit or proceeding in the lower court, a point that required further consideration.

In this case the court examined whether the words “judgment, decree or final order” in article 133 could be followed by the phrase “arising out of a suit or proceeding instituted in the court of first instance after the commencement of the Constitution.” The court noted that the Constitution was held to be prospective with respect to the date on which a judgment was passed, and therefore questioned why the same prospectivity should not apply to the date on which the original suit or proceeding was instituted. The court observed that to read article 133 so as to include every judgment, decree or final order made after the Constitution’s commencement, irrespective of when the suit began in the lower court, would conflict with earlier decisions that the court had relied upon. The court further pointed out that the very broad language of the amended clause 15 of the Letters Patent, the provision of section 242(1) of the amended Agra Tenancy Act, 1926, and similar provisions in other statutes such as the amended Court Fees Act, had not been interpreted to apply only to judgments, decrees or final orders made after the respective amendment dates, nor were they read as expressly or necessarily removing the vested right of appeal. Likewise, the decisive wording of the amended section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947, was not deemed by this court to be sufficient to extinguish the right of appeal that had accrued to the taxpayer under the earlier provision that was in force when the returns were filed. Consequently, the court held that it was incorrect to say that the language of article 133 by implication took away the right of appeal. Moreover, the court identified a deeper objection to the construction advanced in the later Madras Full Bench decision under consideration. That construction ignored the principle that the right of appeal becomes vested at the moment the suit is instituted in the court of first instance, and that the date of the judgment or the date on which an appeal is filed does not affect the existence of that vested right.

The court therefore concluded that a party to a suit who was dissatisfied with a judgment rendered by a High Court in a civil proceeding that arose from a suit or proceeding filed in the lower court before the Constitution had a right of appeal that had already accrued at the time the original suit was instituted, according to the law that was then applicable. It was irrelevant whether the judgment was delivered before or after the Constitution came into force. The entitlement to move from one court to the next in appeal was the right that vested at the date of institution of the proceedings in the first‑instance court. The court emphasized that this view was consistent with the principle articulated by Rankin C.J., namely that a litigant cannot proceed from one court to another until an adverse order is actually made, but the underlying right to ascend to a higher court vests at the inception of the original proceeding, not at the moment of the adverse judgment or at the filing of the appeal. Accordingly, to interpret article 133 as covering all judgments, decrees and final orders made after the Constitution, regardless of when the original suit began, would effectively remove or impair a vested right of appeal that had arisen concerning property or matters valued between ten thousand and twenty thousand rupees before the Constitution’s commencement. Such an interpretation would give article 133 a retroactive effect, which the court rejected.

According to Rankin C.J., a litigant may not move from Court A to Court B or from Court B to Court C until an adverse order has actually been made, but the entitlement to proceed to Court C does not arise on the date of the adverse judgment or on the date the appeal is filed; rather, it arises at the moment the original proceedings are instituted. If that principle is indeed correct, then interpreting Article 133 so that it applies to every judgment, decree or final order issued after the Constitution came into force, irrespective of when the original suit was commenced, would effectively remove or impair a vested right of appeal. Such a right might concern a property or subject‑matter valued at ten thousand rupees but less than twenty thousand rupees, and it would have accrued to the aggrieved party well before the Constitution began. Construing Article 133 in that manner would give the provision a retroactive effect, thereby destroying a right that had vested prior to the Constitution. This outcome would run counter to the rules of construction that were discussed earlier in this judgment. The Court also observed that if the wording of Article 133—“an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court”—is taken to include judgments, decrees or final orders made after the Constitution’s commencement, then, by the same reasoning, the amended clause 15 of the Letters Patent—stating that “an appeal shall lie to the said High Court from a judgment of one judge”—should likewise apply to a judgment rendered after that amendment became effective. However, the five‑judge Special Bench of the Calcutta High Court and the five‑judge Full Bench of the Madras High Court did not consider that language sufficient to cover a judgment issued after the amendment to clause 15 took effect. The later Full Bench judgment of the Madras High Court under consideration is therefore inconsistent with the fundamental principle that the learned judges themselves had earlier accepted: that the right of appeal vested in parties to a suit or proceeding instituted before the Constitution, and that this right was unrelated to the date on which the judgment was delivered. The Court therefore observed that the learned judges had completely overlooked the fact that their broad construction of Article 133 destroyed a pre‑existing appeal right that had vested in the aggrieved party long before the Constitution commenced, and that

In this passage, the Court observed that the interpretation advanced by the later Full Bench of the Madras High Court effectively gave Article 133 a retrospective effect, and that such a retrospective operation could not be allowed unless the Constitution contained an explicit provision or a clear intention to do so. The Court noted that the judges of that later Full Bench appeared to be driven by a fear that if Article 133 were held not to apply to every judgment issued by a High Court after the Constitution came into force, in cases where the civil suit or proceeding had originally been commenced before that date, then the provision would become meaningless for many years. The Court contrasted this attitude with the approach taken by the Special Bench in Calcutta and by the earlier Full Bench of Madras, both of which had considered questions arising under the amended clause 15 of the Letters Patent. Those earlier benches had not been hindered by any similar apprehension, and they had given effect to the principle that had been laid down by the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving. The Court further suggested that the judges of the later Madras Full Bench might also have been influenced by the concern that a narrower construction of Article 133—limiting its reach to judgments, decrees, or final orders issued after the Constitution’s commencement regardless of whether the underlying suit was filed before or after that date—would deprive a litigant, whose suit had been filed in a High Court of a princely State long before the Constitution became operative, of any further right of appeal to this Court after an adverse order was rendered by the High Court of the corresponding Part B State, because such a case would not fall within Article 135. The Court regarded this line of argument as initially attractive but ultimately unsubstantiated. It explained that if, before the Constitution, the litigant had already appealed to the Privy Council of the princely State or had applied for leave to appeal, then Article 374(4) would protect his right, allowing this Court to entertain the appeal or application. Conversely, if the judgment of the princely State’s High Court had been delivered before the Constitution and no appeal or application for leave had been made to the Privy Council, the proposed reading of Article 133 would not assist the aggrieved party, because the construction limited the provision’s operation to judgments rendered after the Constitution’s commencement. Moreover, Article 135 would offer no relief, as the Federal Court, immediately prior to the Constitution’s commencement, possessed no jurisdiction over judgments of a princely State’s High Court. The Court then indicated that there remained litigants who

The Court observed that there were suits and proceedings that had been filed in the High Court of a princely State before the Constitution came into force, but the judgments on those matters were delivered after the Constitution’s commencement by the High Court of the corresponding Part B State. The Court indicated that it was unnecessary to adopt the broad construction of article 133 proposed in the later Madras Full Bench decision. Moreover, the Court emphasized that granting a further appeal to this Court for only a few litigants should not compel the Court to interpret article 133 in a way that would deprive a much larger group of litigants of an appeal right that they had already acquired before the Constitution became operative.

The Court noted that the learned judges of the Madras High Court had not sufficiently considered the fact that a considerable number of litigants possessed a vested right of appeal from judgments dealing with property or other subject‑matter valued at more than ten thousand rupees but less than twenty thousand rupees. The Court repeated the warning it had earlier given in Daji Saheb Mane v. Shankarrao Vithalrao Mane, namely that a construction which would have such a consequence should not be adopted unless it is absolutely necessary. The Court found no necessity in article 133 to endorse such a result.

The Court then turned to another argument challenging the correctness of the Madras Full Bench decision. It pointed out that the learned judges had conceded that article 133 did not apply to a case where the judgment, decree or final order of the High Court was made before the Constitution. The Court explained that this concession could be understood on the basis that a judgment passed before the Constitution could not satisfy the prospective requirement of article 133, which contemplated a judgment, decree or final order issued after the Constitution’s commencement. Consequently, the vested right of appeal in such a case was governed by article 135. By the same reasoning, the Court asked why it could not be said that article 133 does not apply to a judgment, decree or final order in a civil proceeding that arose from a suit instituted before the Constitution, where the value of the subject‑matter of the suit and of the appeal fell between ten thousand rupees and twenty thousand rupees, because such a judgment did not meet the valuation condition laid down in article 133.

The Court further observed that if non‑compliance with the requirement that the judgment be passed after the Constitution’s commencement removes a judgment from the ambit of article 133, then non‑compliance with the valuation condition should likewise remove a judgment passed after the Constitution’s commencement in a civil proceeding that originated before the Constitution from the operation of article 133 and bring it within article 135. The Court acknowledged that this line of reasoning possessed some merit, but stated that it was not required to base its conclusions on that argument. The Court then indicated that it would proceed to consider another construction of article 133 that it found to be more persuasive.

The discussion first addressed why a judgment, decree or final order passed by a High Court after the Constitution, but arising from a suit or proceeding that was instituted before the Constitution, should not be taken out of the operation of Article 133 merely because the valuation condition prescribed in that article is not satisfied. The argument advanced was that the same reasoning applied to cases where the valuation requirement was breached should equally apply to judgments issued after the Constitution, thereby placing such judgments within the scope of Article 135, a provision to which Article 133 does not apply. The Court noted that this line of argument possessed a certain amount of persuasiveness; however, it was not essential for the Court’s ultimate conclusions, and the Court therefore moved on without adopting it as a basis for its decision.

The Court then turned to an alternative interpretation of Article 133 that it found more compelling. It observed that Sections 109 and 110 of the Code of Civil Procedure had been modified by the President’s Order, which raised the monetary threshold for appeal from ten thousand rupees to twenty thousand rupees in order to bring the statutory scheme into conformity with Article 133. Clause 20 of that Adaptation Order expressly stated that the amendment would not affect vested rights. Consequently, litigants who possessed a vested right of appeal from judgments, decrees or final orders of a High Court in civil proceedings that originated before the Constitution and involved property valued above ten thousand rupees but below twenty thousand rupees continued to be governed by the pre‑amendment provisions of Sections 109 and 110. This meant that the expressions “judgment, decree or final order” in the adapted Sections 109 and 110 must be understood to refer only to orders made after the date of the adaptation, except for those orders for which a vested right of appeal existed prior to the adaptation and was preserved by Clause 20. On that basis, the Court asked why Article 133 should not be read in a similar restricted manner, covering all judgments, decrees or final orders of a High Court rendered after the commencement of the Constitution, except for those orders that already gave rise to a vested right of appeal before the Constitution. The Court rejected the contention that Article 133 lacked a saving provision comparable to Clause 20, labeling that contention as unsound. It cited the observations of Rankin C.J. in the earlier Calcutta Special Bench case, noting that a provision that strips jurisdiction is itself subject to an implied saving of the litigant’s pre‑existing right. The Court held that Clause 20 would be meaningless if Article 133 were not also read in a restricted sense, and that such a restricted construction of Article 133 could not be attacked on the ground that it deprives any litigant of a vested right.

In this case the Court described a litigant who had commenced a suit or other proceeding in a princely State before the Constitution came into force. The High Court of the corresponding Part B State later rendered an adverse judgment, decree or final order against that litigant. The litigant previously possessed a right to appeal the High Court’s decision to the Privy Council, but that right had been abolished by the Constitution. Because the appellate right no longer existed, the litigant did not retain a vested right of appeal. Consequently, the Court held that the litigant could be brought within the scope of Article 133, provided that the conditions specified in that article were satisfied. The Court further noted that some authorities argued that this interpretation would not assist a litigant who had filed his suit before the Constitution but who received an adverse order after the Constitution had commenced. According to those authorities, the litigant would possess a vested right of appeal and therefore would fall outside the ambit of Article 133. They contended that such a litigant could only rely on his vested right if he qualified under Article 135. This view therefore suggested that a post‑Constitution adverse order could not be dealt with under Article 133, limiting the litigant’s remedy to the narrow carve‑out provided by Article 135.

The Court then examined the proposition that, in order to invoke Article 135, the judgment, decree or final order must have been passed before the Constitution commenced, when the Federal Court still existed. The argument was that, because the Constitution caused the Federal Court to cease, that Court could not exercise any jurisdiction immediately before the Constitution with respect to a judgment passed after the Constitution’s commencement. This construction would give Article 135 a very narrow and limited meaning, a view that the Court had previously rejected in Daji Saheb Mane v. Shankarrao Mane. Moreover, the Court observed that Article 135 confers on this Court the same jurisdiction and power over any matter to which Articles 133 or 134 do not apply, provided that the Federal Court could have exercised that jurisdiction and power immediately before the Constitution under existing law. Accepting that, at the date the civil proceeding was instituted, a litigant possessed a vested right to appeal to the Federal Court makes it difficult to say that such a vested right was not a “matter” over which the Federal Court’s jurisdiction was exercisable before the Constitution. The term “matter” is broad, and a liberal interpretation allows vested appellate rights to fall within Article 135. Finally, the Court pointed out that if one insists the Federal Court could only act where a judgment, decree or final order was actually passed before the Court’s abolition, the same logic would require that the Federal Court could not act on judgments passed before its abolition but for which no leave to appeal had been obtained from either the High Court or the Federal Court, because without such leave the Federal Court possessed no jurisdiction or power over those orders.

The Court observed that, in the absence of a leave to appeal either from the High Court or from the Federal Court, the Federal Court possessed no jurisdiction or power to act upon those judgments, decrees or final orders. It noted that the Court had previously held that the term “exercisable” should not be interpreted in a narrowly limited sense. In the present opinion, the Court stated that jurisdiction and powers concerning a judgment, decree or final order that would be issued by a High Court after the Constitution came into force, but for which a right of appeal had already vested in the parties before the Constitution’s commencement, must be regarded as having been “exercisable” by the Federal Court immediately prior to the Constitution taking effect. Such jurisdiction and powers were “exercisable” in the meaning that they could be exercised as soon as the judgment, decree or final order was rendered, provided that a litigant had already acquired a vested right of appeal. The Court found no reason to restrict the operation of Article 135 to situations where the right of appeal was more than a mere potentiality and had actually materialised in a concrete form immediately before the Constitution’s commencement, a view earlier suggested by Chakravartti C.J. in Prabirendra Mohan v. Berhampore Bank Ltd. The Court expressed the view that the decisions in Veeranna v. Chinna Venkanna and the subsequent cases relying on it were not correctly decided. Attention was drawn to the case of Nathoo Lal v. Durga Prasad, in which an objection was raised concerning the maintainability of an appeal on the ground that, according to the Code of Civil Procedure of the Jaipur State, the decision of the Jaipur High Court was final and no further appeal could be taken, rendering the appeal to this Court incompetent. It was further argued that the suit, decided in 1945, had been concluded by the Jaipur High Court’s decision in 1949, and that a later review judgment modifying the decree regarding improvements could not revive the 1949 decision. The Court, however, held that this objection was not well founded. It explained that the only operative decree in the suit that finally and conclusively determined the parties’ rights was the decree dated 5 April 1950, issued by the Rajasthan High Court. Since this decree was passed after the Constitution of India came into force, the provisions of Article 133 applied, making the decree appealable to this Court provided the conditions of that article were met. The Court further observed that the Jaipur State Code of Civil Procedure could not dictate the jurisdiction of this Court and was irrelevant to the appeal’s maintainability. Having satisfied the requirements of Article 133, the appeal was clearly competent. The respondent’s contention that the judgment, decree or final order of the Jaipur High Court possessed finality was therefore rejected.

The Court observed that the argument presented relied on the notion that the decree or final order issued by the Jaipur High Court in 1949 became final at the time it was rendered, thereby giving the respondent a vested right to that final order which, it was claimed, was not withdrawn by the Constitution either expressly or by necessary implication. The Court explained, however, that because a review application had been filed, the appeal remained pending and the judgment was under review; consequently, no finality could be said to have attached to the judgment before the Constitution came into force. The review judgment was subsequently delivered by the Rajasthan High Court in April 1950, that is, after the Constitution had become operative and by a High Court of a Part B State constituted under the Constitution. Accordingly, the respondent possessed no vested right of finality in respect of any judgment of the Rajasthan High Court. Moreover, the appellant’s vested right of appeal to the Privy Council of that State terminated with the abolition of that authority, and at the date of the suit the appellant had no further right of appeal from the Jaipur High Court’s judgment to either the Federal Court or this Court. As a result, the judgment in question was one to which no one held any vested right of appeal, and therefore an appeal lay to this Court under Article 133 as previously construed. The Court held that it was irrelevant whether the appeal was maintainable under Article 133 or Article 135, and noted that the issue presently before it had not been raised by counsel nor discussed in the earlier case; the brief observation cited could not be taken as a definitive statement that every judgment, decree or final order rendered after the Constitution’s commencement must fall within Article 133 irrespective of when the underlying proceedings were instituted. For the reasons set out, the Court concluded that the suit from which the present application arose had been instituted before the Constitution’s commencement, and consequently the parties enjoyed, from that date, a vested right of appeal governed by the law then in force. Because the judgment appealed from was a reversal and the subject‑matter value exceeded Rs 10,000, the applicant possessed a vested right of appeal to the Federal Court under the old Civil Procedure Code read with the Government of India Act, 1935, and the Federal Court (Enlargement of Jurisdiction) Act, 1947. Such a vested right of appeal lay outside the scope of Article 133; the jurisdiction and powers relating to that right were exercisable by the Federal Court immediately before the Constitution’s commencement. Accordingly, the applicant had a right of appeal under Article 135, and the High Court’s conclusion was held to be erroneous.

The Court had initially declined to grant leave to appeal to the petitioner. After reconsideration it held that the petitioner was, in fact, entitled by Article 135 of the Constitution to appeal to this Court as a matter of right, and that this right had been incorrectly denied. Accordingly, the Court decided to allow the petitioner to proceed by way of special leave to appeal under Article 136 of the Constitution. The petitioner's costs for this application were ordered to be paid by respondents I and II. The Court expressed its gratitude to the Attorney‑General, who assisted as amicus curiae, and also conveyed appreciation for the thorough and learned submissions presented by counsel for both sides. The principal issue before the Court was whether the petitioner possessed a statutory right of appeal against the judgment of the Andhra High Court rendered in A.S. No. 301 of 1951 on 10 February 1955. While some judges argued that such a right existed under Article 135, the presiding judge disagreed, maintaining that the controlling provision was Article 133. Because the suit in question was valued at Rs 11,400, the judge concluded that the appeal would be incompetent unless it fell within the specific exception of Article 133(1)(c). The judge supported this view by referring to a series of decisions: the Madras High Court in Veeranna v. Chinna Venkanna, followed by the Calcutta High Court in Prabirendra Mohun v. Berhampore Bank Ltd, the Allahabad High Court in Ram Sahai v. Ram Sevdk and Tajammul Hussain v. Mst. Quaiser Jahan Begum, and the Punjab High Court in The Indian Trade and General Insurance Ltd. v. Raj Mal Paharchand. The judge noted that contrary opinions had been expressed by the Bombay High Court in Dajee Sahib v. Sankar Rao, the Nagpur High Court in Bhagawantrao v. Viswasa Rao, and the Patna High Court in N. P. Sukul v. R. K. Misra. After hearing extensive arguments, the judge re‑examined the issue and concluded that the majority view of the High Courts was correct. The judgment under challenge had been pronounced on 10 February 1955. Since the Constitution of India came into force on 26 January 1950, Articles 131 to 140 define the Supreme Court’s original and appellate jurisdiction. It is settled law that an appeal exists only if expressly provided by statute, so the sole question was whether the present appeal was authorized by any of those constitutional provisions. The two relevant articles were Articles 133 and 135. The petitioner contended that Article 135 applied, granting him a right of appeal to this Court.

The Court set out the text of Article 135, which provides that “until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable (1) I.L.R. 1953 Mad. 1979. (5) A.I.R. 1956 Punjab. 228. (2) A.I.R. 1954 Cal. 289. (6) I.L.R. 1952 Bom. 906. (3) A.I.R. 1956 All 321. (7) I.L.R. 1953 Nag. 822. (4) A.I.R. 1956 All. 638. (8) [1933] I.L.R. 32 Patna 400. by the Federal Court immediately before the commencement of this Constitution under any existing law.” For this provision to operate, the Court explained that two conditions must be satisfied: first, the dispute must be one that does not fall within the scope of Article 133; second, the matter must be one over which the Federal Court exercised jurisdiction before the Constitution came into force under some existing law. The Court observed that the answer to whether the present appeal is competent under Article 135 depends on the satisfaction of both conditions. Turning to the first condition, the respondent contended that the present matter is within the ambit of Article 133 and therefore Article 135 cannot be invoked. The Court then reproduced the relevant portion of Article 133, which states: “An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies—(a) that the amount or value of the subject‑matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court; and where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub‑clause (c), if the High Court further certifies that the appeal involves some substantial question of law.” The Court noted that this article is expressly non‑retrospective, a position that has been repeatedly affirmed by this Court. Accordingly, the only effect of this non‑retrospective character, as decided in Janardan Reddi and others v. State of Hyderabad, is that appeals against judgments, decrees or final orders passed prior to 26 January 1950 are not governed by Article 133. Because the article is prospective in nature and contains no limiting language, it applies to all judgments, decrees or final orders issued after the Constitution commenced. Since the judgment under review was rendered on 10 February 1955, the Court concluded that the right of appeal against it must

The Court observed that because the suit was valued at only Rs. 11,400, the appeal could not be entertained under Article 133, since the conditions of clause (1)(a) of that article were not met. The petitioner’s response to this view was that, at the time he filed the suit on 22 April 1949, the law then in force conferred upon him a vested right to appeal to the High Court of Madras and, subsequently, from that court to the Federal Court. He argued that the Constitution neither expressly nor implicitly removed that pre‑existing right, and therefore the constitutional provisions should be interpreted in a manner that gives effect to the right. According to that construction, the operation of Article 133 would be confined to judgments and decrees arising from civil proceedings that were instituted only after the Constitution came into force. Consequently, judgments rendered in suits that had been instituted before the Constitution, even though pronounced after its commencement, would lie outside the ambit of Article 133 and would instead fall within the scope of Article 135. Because this is the sole basis for giving a restricted meaning to the broadly worded Article 133, the Court found it necessary to examine closely whether the petitioner possessed any vested right of appeal before the Constitution, what the extent of that right was, and whether such a right could survive the constitutional transition. The Court also raised the ancillary question of whether, assuming such a right existed, it would be permissible to read into Article 133 words that are not present, thereby limiting its operation. The petitioner’s contention that, when he instituted the suit in the Sub‑Court at Bapatla on 22 April 1949, the law then gave him a right of appeal to the Madras High Court and a further right of appeal to the Federal Court, was based on the precedent set in Colonial Sugar Refining Company v. Irving (1). In that case, an action had been commenced in the Supreme Court of Queensland on 25 October 1902, and at that time an Order in Council dated 30 June 1860 provided for an appeal to the Privy Council against the Supreme Court’s judgment. During the pendency of the action, the Judiciary Act of 1903 became law on 25 August 1903, and the Act abolished appeals to the Privy Council, substituting instead a right of appeal to the High Court of Australia for the matters specified in the statute. On 4 September 1903 the Supreme Court delivered its judgment dismissing the action, but it also granted the plaintiff leave to appeal to the Privy Council. The plaintiff then lodged an appeal in accordance with that leave, and a preliminary objection was raised questioning the maintainability of the appeal on the ground that the judgment under appeal had been pronounced after the Judiciary Act had come into force, which, according to the objection, rendered any appeal to the Privy Council incompetent.

The Court observed that if the provisions of the Judiciary Act were to apply to the case, the appeal to the Privy Council would be deemed incompetent. In rejecting that contention, Lord Macnaghten articulated his reasoning as follows: “The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well‑known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.” The present petition relied entirely upon that decision for its support. The Court, however, questioned whether that reliance was correct. It noted that it might appear a bold and perhaps imprudent undertaking to re‑examine the correctness of the decision in Colonial Sugar Refining Company v. Irving (1905) A.C. 369, especially given that the decision had been followed by Australian courts for nearly half a century. Nevertheless, with due respect for the authority of the Privy Council and for the eminence of Lord Macnaghten, the Court expressed the view that the decision could not be sustained on principle, was not supported by the relevant authorities, and therefore should not be followed.

Turning to the principle of the right of appeal, the Court explained that an appeal is a legal process by which a party seeks to have the correctness of a lower‑court decision examined by a higher court. By its very nature, a right of appeal can arise only after a decision has been rendered that causes a litigant to be aggrieved. To suggest that such a right exists before any judgment is pronounced is, in the Court’s view, paradoxical. The Court then asked what justification might exist for holding that a right of appeal vests in a party at the moment the proceedings are commenced. If the right does not arise on the date of judgment, why should it arise at the institution of the proceedings and not at the date of the transaction that gave rise to the dispute? Moreover, if it is asserted that a litigant commences a proceeding with the expectation that a then‑existing right of appeal will remain intact, the same logic would imply that a person entering into a transaction does so with the expectation that the right of action and the corresponding right of appeal, as they existed at that time, will be available for enforcing the transaction. The Court highlighted the difficulty of reconciling such a view with the concept of a clear, vested right of appeal.

The Court noted that a person who enters into a transaction does so with the expectation that the law then in force will provide the means to enforce the rights created by that transaction. No party had contested the proposition that a right of appeal should be assessed according to the law as it stood on the date of the transaction. The Court then turned to the question of when the right of appeal actually arises. It asked, if the right of appeal is said to arise at the commencement of the suit, to whom does that right belong – the plaintiff or the defendant. The Court observed that the party who is aggrieved by a decision is the one entitled to prefer an appeal, and that, depending on the outcome, either the plaintiff or the defendant could be the aggrieved party. Consequently, if the theory that the right of appeal vests at the moment the proceedings are instituted is accepted, the right would have to vest simultaneously in both the plaintiff and the defendant, and would cease only when the cause is determined with respect to the party who succeeds, or, in the case of a partial success, to the extent of that success. The Court questioned whether a right so uncertain and contingent could be regarded as a genuine right that vests before a decision is rendered.

The judgment in Colonial Sugar Refining Company v. Irving (supra) was examined, and the Court observed that that decision did not disclose the reasoning on which it was based. Lord Macnaghten, the Court noted, referred to “a long line of authorities from the time of Lord Coke to the present day,” a passage that was apparently echoed in the counsel’s argument on page 370. However, on close examination those authorities did not address the point in issue. The Court cited Lord Coke’s comment on the Statute of Gloucester (6 Edward I, Chap. 78, s. 3), which prohibited alienations of tenement. Lord Coke wrote that the statute “extendeth to alienations made after the statute and not before; for it is a rule of law of Parliament that regularly nova constitutio futuris forman imponere debet, non praeteritis” (a new statute regulates future conduct and not past conduct). From this passage, the Court said, one might infer that legislation does not affect a right of appeal that has already accrued, but the passage does not illuminate the question of when that right actually accrues – whether at the commencement of the action or at the pronouncement of the judgment.

The Court then considered the decision in Towler v. Chatterton (2). In that case the plaintiff sought recovery of an oral loan, and the issue was whether the loan was subject to Lord Tenterdon’s Act, which required that a debt be in writing in order to take the case out of the operation of the statute of limitation. The Act had been passed after the debt was contracted but before the suit was filed. The Court held, after giving effect to the terms of the Act, that the legislation must be given retrospective effect and that the action was therefore not maintainable. The Court observed that the decision in The Ydun (3) was similar to the decision in Towler v. Chatterton. In The Ydun the plaintiffs sued for damages for the grounding of their vessel on 13 September 1893, alleging negligence on the part of the defendants. (1) 2 Inst. 292. (2) (1829) 6 Bing.

In the authorities cited, the first citation reads “253; 31 R.R., 411. (3) (1899) P.D. 236.” The Public Authorities Protection Act received statutory force on 5 December 1893. The Act expressly required that any suit against a public authority founded on neglect or default must be instituted within six months of the alleged neglect or default. In the case under discussion, the suit was actually commenced on 14 November 1898. The plaintiffs asserted that their right to sue had arisen on 13 September 1893, the date of the alleged neglect. The legal issue was whether the statutory limitation imposed by the 5 December 1893 Act barred a claim that had vested prior to the Act’s commencement. The court held that the claim was indeed barred by the Act.

In the decision of Attorney‑General v. Sillem, the question before the House of Lords was whether the Court of Exchequer, exercising a power to make rules governing its own practice, could create a rule that provided for an appeal. The House of Lords held that it could not, because an appeal did not pertain merely to practice or procedure; instead, the power to confer the right of appeal rested with the legislature.

The case of In re Joseph Suche and Company Ltd. presented facts in which an order dated 30 January 1875 wound up a company under the supervision of the Court. At that time, the law allowed a secured creditor to prove for the full amount of the debt without deducting the value of the securities. After the winding‑up order, section 10 of the Judicature Act 1875 came into force, providing that a secured creditor could prove only for the balance of the claim after deducting the value of the securities. The dispute turned on whether the creditor was entitled, under the law as it stood on the winding‑up date, to prove the entire debt, or whether the creditor was limited to the balance after deduction as mandated by the later‑enacted section 10. Jessel M.R. held that the right to prove a debt was not a mere procedural matter but was inseparable from the substantive right of action; consequently, the creditor’s entitlement was not altered by the subsequent amendment of section 10.

The decision in In re Athlumney is analogous to In re Joseph Suche. The citation for that case is (1) [1864] 10 H.L.C. 704; 11 E.R. 1200. The question in Athlumney concerned whether the rights of a creditor who had already proved his debt could be affected by a Bankruptcy Act that became operative after the proof of debt. Following the reasoning in In re Joseph Suche, the court held that the right to prove a debt is a substantive right and is not displaced by later‑enacted bankruptcy provisions. From these authorities, it may be concluded that a right of appeal is a substantive right rather than a mere procedural matter, and that

The Court observed that a statute enacted after a right has already accrued must not be interpreted as taking that right away unless the legislation does so expressly or by necessary implication. Yet the question of exactly when such a right accrues or vests had not been decided in the authorities previously cited, and it did not appear to have been the subject of any earlier pronouncement before the decision in Colonial Sugar Refining Company v. Irving. The holding in that case, which said that a right of appeal vests at the time the action is commenced, therefore seemed to be a deduction drawn from the characterization of the appeal right as a substantive one. The Court asked whether that deduction was proper. It noted that it is one matter to declare that a right of appeal is substantive, and quite another to hold that it vests at the date the proceedings begin. It would be logically consistent to regard the appeal right as substantive while also recognizing that it arises only when the judgment to be appealed is rendered. Under that view, an appeal right that comes into existence upon the delivery of a judgment would remain unaffected by any later legislation that altered or limited it, unless such legislation were made retrospective, either expressly or by necessary implication. Consequently, the conclusion that because the appeal right is substantive it must automatically vest at the commencement of the action was deemed a non‑sequitur. Whether the issue is considered on the basis of general principle or on the authority of prior cases, the Court found the decision in Colonial Sugar Refining Company v. Irving to be unsound. It was further argued that the Privy Council had applied the Colonial Sugar decision in Delhi Cloth and General Mills Company Ltd. v. Income‑Tax Commissioner, Delhi, and that the ruling had been followed in numerous subsequent decisions, making it too late to overturn the established line of authority or to introduce a new legal theory. The Court saw no persuasive force in that contention. It questioned whether the British Indian courts ought to have revisited the matter on its own merits and reached a contrary conclusion—that a right of appeal arises not at the filing of the suit but at the moment of judgment. If the reasoning in Colonial Sugar Refining Company v. Irving fails to persuade, the Court considered whether later decisions that merely followed it could advance the issue further. While acknowledging that many decisions have adhered to the Colonial Sugar view, the Court noted that, apart from any stare decisis considerations, those decisions possess no independent value, and their detailed citation would not serve any useful purpose.

In this part of the judgment the Court observed that the numerous decisions which merely follow the earlier ruling in Colonial Sugar Refining Company v. Irving possess no independent authority and that referring to them in detail would serve no useful purpose. The Court then considered whether, because the Colonial Sugar Refining decision had been accepted for a long time in this country, it ought to be left undisturbed on the basis of the doctrine of stare decisis. It explained that the doctrine of stare decisis is appropriate only when there exists a long series of decisions interpreting the law in a consistent manner and when parties have acquired property rights or entered into contracts relying on those decisions. The Court held that the doctrine could not be properly invoked in a case where the issue concerned the point at which, according to the construction of a statute, a right of appeal becomes vested in a plaintiff. The petitioner, the Court noted, did not seriously argue that the principle of stare decisis should apply to a question of this character. The Court then referred to its own earlier decision in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and others, where the Colonial Sugar Refining precedent had been followed. In that earlier case the Court had simply assumed that the Colonial Sugar Refining decision was correct, without raising or deciding the precise point now under consideration. The Court further noted that the issue in its present form had been raised in Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others, but that the point remained unresolved, as indicated in the observations on page 1133. Consequently, the Court concluded that no authority of this Court had finally settled the question.

The Court proceeded to examine the position in jurisdictions that were not under the influence of the Privy Council, for example the United States of America. It stated that in such jurisdictions it is well settled that a right of appeal is determined according to the law in force on the date the judgment is rendered, not the law that existed on the date the suit was commenced. The Court quoted the statement found in Corpus Juris Secundum, Volume IV, page 63, which distinguishes two situations. First, statutes that take effect before a judgment (referred to as S‑3) apply to actions that were started before the statute came into force, provided that the judgment, decree, or order to be appealed has not yet been rendered, unless the statute itself or a general provision expressly excludes pending actions. Second, statutes that take effect after a judgment (referred to as S‑4) apply only to cases that are still pending and undetermined at the moment the statute becomes effective, unless the statute clearly indicates an intention to apply retroactively. Such statutes do not affect causes in which a final judgment has already been entered or rendered, even if that judgment has not yet been formally entered.

In this case the Court referred to authority that a statute shall not affect existing remedies, citing (1) [1953] S.C.R. 987 and (2) [1955] 2 S.C.R. 1117, as earlier cited. The Court also quoted American Jurisprudence, Volume III, page 145, section 426, which states that as a general rule the right of appeal is governed by the law in force when the final judgment is rendered. Agreeing with those statements and differing from the decision in Colonial Sugar Refining Company v. Irving (supra), the Court expressed the view that a right of appeal arises only when a judgment is given. The Court further held that such a right did not exist before the judgment was delivered in any circumstance. Accordingly the Court held that the petitioner did not acquire a vested right of appeal on 22 April 1949, the date on which he instituted the suit. Even assuming that the decision in Colonial Sugar Refining Company v. Irving (supra) set out the correct law, the Court noted that the proposition does not extend far enough to support the petitioner's claim. Thus the Court concluded that no vested appellate right existed at the commencement of the suit in accordance with the principles previously cited.

The Court observed that the suit had been instituted in a court from which, but for the Judiciary Act, an appeal would have lain to the Privy Council. The Court further noted that the Judicial Committee had held that the right to prefer an appeal became vested in the suitor when the action was commenced. The Court added that no subsequent legislation could impair that right unless it did so expressly or by necessary intendment. Applying that principle, the Court said the petitioner could only claim that when he instituted the suit in the Sub Court, Bapatla on 22 April 1949, he possessed a vested right to appeal any decision of that court. He could appeal that decision to the High Court of Madras, which was the appellate forum from the Bapatla Sub Court at that time. The Court noted that this right was not in dispute and that the petitioner indeed filed an appeal to the High Court of Madras. That appeal was subsequently heard and decided by the Andhra High Court, to which the appeal was transferred in due course. The petitioner, however, advanced a further claim that went beyond the right already recognised, seeking additional appellate protection under the law. He asserted that on 22 April 1949 he not only held a vested right to appeal to the High Court of Madras from any judgment of the Bapatla Sub Court, but also possessed a vested right to prefer an appeal to the Federal Court against a judgment that might be delivered by the Madras High Court. He further claimed that he also possessed a vested right to prefer an appeal to the Federal Court against a judgment that might be delivered by the Madras High Court. The Court summarized the petitioner’s argument as follows: he sought to appeal to the Federal Court against a non‑existent judgment of the High Court in a non‑existent appeal.

In the earlier authorities of Sadar Ali v. Dalimuddin (1) and the subsequent Full Bench decision of the Madras High Court in Vasudeva Samiar, In re (2), the Court found it necessary to assess the correctness of those rulings. The case of Sadar Ali v. Dalimuddin concerned an amendment to the Letters Patent that stipulated that no appeal could proceed from the decision of a single judge to a Division Bench in a second appeal unless a certificate was granted. This amendment became effective on 14 January 1928. Prior to the amendment, the Letters Patent provided a matter‑of‑right appeal from the judgment of a single judge to a Division Bench, and the issue before the learned judges was the extent to which the amendment altered that pre‑existing right. The factual background was that the suit had been commenced in the court of the Munsif on 7 October 1920, and a second appeal had been filed in the High Court on 4 October 1926. The appeal was heard by a learned High Court judge on 4 April 1928, after the amendment had already come into force, and the judge dismissed the appeal and also refused to grant a certificate. Despite this refusal, the appellant endeavoured to raise an appeal against that judgment to a Division Bench and, relying upon the bar created by the amendment, argued that he had acquired on 7 October 1920, when he initiated his action, a vested right of appeal to all successive courts under the law as it stood at that time, and that the amendment had not taken away that right. Rankin C. J., delivering the judgment of the Court, articulated the ratio decidendi as follows: “Now the reasoning of the Judicial Committee in the Colonial Sugar Refining Company’s case (supra) is a conclusive authority to show that rights of appeal are not matters of procedure, and that the ‘right to enter the superior court’ is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior court. If the latter proposition is accepted, I see no intermediate point at which to resist the conclusion that the right arises at the date of the suit. It does not arise as regards Court B alone when the suit is instituted in Court A and as regards Court C when the first appeal is lodged before Court B… It is quite true that the suitor cannot enter Court C without going through Court B, but neither can he enter Court B until Court A has given its decision. The right must be a right to take the matter to Court C in due course of the existing law.” It will be noticed that the judgment rests upon two propositions of law.

The Court identified two propositions that formed the basis of the earlier judgment. The first proposition held that a plaintiff who filed a suit in Court A possessed a right of appeal to Court B even before Court A rendered its decision. The learned Judge observed that this proposition had been affirmed by the Privy Council in the case of Colonial Sugar Refining Company v. Irving. The second proposition argued that if a plaintiff could acquire a vested right of appeal to Court B while the suit remained pending in Court A, then, by the same reasoning, the plaintiff should also acquire a vested right to appeal to Court C even before an appeal was actually lodged in Court B. The learned Chief Justice considered the second proposition to follow logically from the first, but the present judgment questioned the correctness of that inference.

To analyse the issue, the Court referred to the definition of a right of appeal given in Attorney‑General v. Sillem, where it was described as “the right of entering a superior court and invoking its aid and interposition to redress the error of the court below” (see page 1209). The Court explained that this right has two essential components. The first component is the right granted to the plaintiff to challenge a decision made by the lower Court A, which the plaintiff believes to be erroneous. The second component is the jurisdiction conferred on the higher Court B, which may be termed the superior court, to review the decision of the inferior Court A. Both the plaintiff’s right and the higher court’s jurisdiction are indispensable ingredients of the concept of an appeal, and each must be expressly created by legislative authority.

The Court cited Lord Westbury’s observation in Attorney‑General v. Sillem that the creation of a new right of appeal requires legislative sanction. He stated that both the court from which the appeal is taken and the court to which it is taken must be bound by such authority, and that the right of appeal “is in effect a limitation of the jurisdiction of one Court, and an extension of the jurisdiction of another.” Consequently, a right to appeal against a decision of Court A is not an abstract or universal entitlement; it is a specific right that can be exercised only in the designated Court B, which derives its power to hear such appeals from the legislature.

Because the law establishes a hierarchy of courts and provides, in succession, for appeals from a lower‑grade court to a higher‑grade court, the Court held that it would be incorrect to treat these successive appeals as a single proceeding or to view the right to appeal as a single, all‑encompassing right. When a suit is instituted in Court A and the statute allows an appeal to Court B, and the same statute further permits an appeal from Court B to Court C, each appeal constitutes an independent proceeding. The right of appeal from Court A to Court B does not, by itself, contain within it the right to appeal from Court B to Court C. This distinction underlies the Court’s conclusion that the second proposition, asserting a vested right to appeal to Court C before an appeal is lodged in Court B, is not supported by the principles governing appellate jurisdiction.

In this case, the Court explained that when the law allowed an appeal from the decision of Court A to Court B, and also provided a further appeal from the decision of Court B to Court C, and a further right of appeal from the decision of Court C to Court D, each of those appeals constituted a separate proceeding that was independent of the others. Consequently, the Court held that it could not be said that the right of appeal from Court A to Court B automatically contained within it the right of appeal from Court B to a third Court, or the right of appeal from that third Court to a fourth Court. The Court then referred to section 96 of the Code of Civil Procedure, which permitted an appeal from a decree of the trial court. Under that provision, a suit instituted in the court of a District Munsif was appealable to the District Court. The Court further noted that section 100 of the Code provided for a further appeal from the judgment of the District Court to the High Court, but that this second‑appeal right was considerably more limited than the right conferred by section 96. The second‑appeal right under section 100 arose only when there was a question of law and, in some cases, was subject to monetary limits. Thus, the Court observed that the rights of appeal created by sections 96 and 100 differed in both quality and content. The Court then turned to sections 109 and 110, which allowed a further appeal from the decision of the High Court to the Supreme Court, again subject to specific conditions. This further appeal was described as a right of a different character from the rights created by sections 96 or 100. From this analysis, the Court concluded that the notion that a suitor who possessed a right of appeal from Court A to Court B also possessed, by virtue of that same right, a right of appeal from Court B to Court C and from Court C to Court D was untenable. The Court further considered the jurisdictional aspect, stating that a right granted to a suitor to challenge the decision of Court A in appeal was limited to bringing that challenge before Court B, which alone was authorised by law to hear appeals from Court A. That right could not extend to an appeal from Court B to Court C, because Court C was not authorised to entertain an appeal against the decision of Court A. Accordingly, it would be erroneous to describe a suitor in Court A as having a right of appeal to Court C where the law did not permit such an appeal. The Court highlighted that section 96 of the Code of Civil Procedure made this position unmistakably clear by providing that an appeal shall lie “to the Court authorised to hear appeals from the decisions of such Court.” Finally, the Court reiterated that, as previously observed, an appeal from Court A to Court B was a distinct proceeding, different from an appeal from Court B to Court C, and that this distinction was a consistent feature throughout the entire hierarchy of appeals under the Code.

In the judgment the Court observed that an appeal from Court B to Court C is different from an appeal from Court C to Court D, and that this distinction is a feature that runs through the entire series of appeals provided by the Code. Consequently, it would be inconsistent with that scheme to hold that when a suitor commences a suit in Court A a right automatically vests not only to appeal from Court B to Court C, as held in Colonial Sugar Refining Company v. Irving, but also to appeal from Court C to Court D and from Court D to Court E. The Court noted that the decision in Colonial Sugar Refining Company v. Irving, which was relied upon in Sadar Ali v. Dalimuddin, does not in fact support that conclusion. It was further suggested that, before Sadar Ali v. Dalimuddin, some Indian decisions had held that a suit, its appeal and a second appeal constituted a single proceeding, and that Sadar Ali v. Dalimuddin had applied that principle on the authority of Colonial Sugar Refining Company v. Irving. However, when those earlier decisions were examined, the Court found that they contained little substance to back the proposition articulated in Sadar Ali v. Dalimuddin. In fact, those cases were only mentioned in the judgment on pages 516 and 517 without any discussion, and they were cited by counsel for the appellant merely to argue that section 6 of the General Clauses Act should be applied in construing the Letters Patent. The first of those cited cases is Ratanchand Shrichand v. Hammantray Shivbakas. In that case the facts were that a suit for the sum of Rs 23,319 was filed in the court of the Principal Sadar Amin of Dhulia and was substantially decreed on 29 January 1869. Subsequently, on 19 March 1869, the Bombay Civil Courts Act became operative and provided that appeals in suits exceeding Rs 5,000 were to be taken to the High Court of Bombay. Under the law that existed before that date, the appeal against the decree of the Principal Sadar Amin would have been made to the District Court. The question for determination was whether the appeal against the decree dated 29 January 1869 should be lodged in the District Court or in the High Court. The learned Judges held that the proper forum for the appeal was the District Court. Their decision rested on section 6 of the General Clauses Act, which provides that “the repeal of any statute shall not affect any proceedings commenced before the repealing Act shall have come into operation.” The Court also quoted Couch C.J., who observed that “a suit is a judicial proceeding, and the word ‘proceedings’ must be taken to include all the proceedings in the suit from the date of its institution to its final disposal, and therefore to include proceedings in appeal.” The passage therefore means that the word “proceeding” embraces the entire judicial process, including appeals.

The Court observed that the term “proceeding” is not restricted to suits; it is sufficiently broad to encompass appeals. In the same way that a right of suit existing before repeal is preserved by section 6, a right of appeal that existed at that time is likewise saved. The Court clarified that this interpretation does not imply that whenever section 6 protects a right of suit, it automatically adds protection for a separate right of appeal. This point is illustrated by the observation that the Legislature did not intend to remove any existing right of appeal when the Bombay Court’s Act was enacted. Consequently, where a plaintiff could not maintain an appeal when the repealing Act took effect, the case of Ratanchand Shrichand v. Hammantrav Shivbakas cannot be read to create a preserved appeal right within the saved suit right. The Court then examined the decision in Chinto Joshi v. Krishnaji Narayan (1), where execution proceedings began under the Code of Civil Procedure Act VIII of 1859. By the time the property was actually sold, the newer Code of Civil Procedure Act X of 1877 had already come into operation. The judgment debtor successfully applied to set aside the sale on grounds of irregularity, and the application was allowed. The issue before the court was whether the order setting aside the sale could be appealed under the applicable statutes. It was held that the order was not appealable under the 1859 Act but became appealable under the 1877 Act. The court reasoned that execution proceedings for the sale were not complete until the sale actually occurred. Therefore, the proceedings started under the 1859 Act remained governed by that Act, making the appeal incompetent. The Court noted that it does not find any element of the decision in (1) [1879] I.L.R. 3 Bom. 214 that is relevant to the present controversy. During that judgment, West J. remarked that some opinions expressed the view that the legal pursuit of a remedy—suit, appeal, and second appeal—are merely steps in a series of proceedings linked by an intrinsic unity. The Court questioned whether this remark means that, under law, suit, appeal, and second appeal constitute a single proceeding. It held that the observation merely describes them as successive steps, indicating distinct proceedings that share a common purpose. The Court further considered whether the observation, read together with the decision in Colonial Sugar Refining Company v. Irving (supra), supports the theory that the right to file an appeal includes the right to file the entire series of appeals. It concluded that such an interpretation would extend the observation beyond its intended scope and could not have been contemplated. On the other hand, the Court indicated that there are additional observations later in the same judgment that more directly address the issue.

In this case the Court referred to observations recorded on page 215 of the same judgment, noting that when a judicial inquiry reaches its intended conclusion and thereafter only a ministerial or coercive act is required to give practical effect to that conclusion, an appeal that seeks to disturb the settled legal relation may fairly be regarded as the initiation of a new proceeding; the Court observed that this view had been expressed by several eminent authorities.

The Court then discussed the decision in Deb Narain Dutt v. Narendra Krishna (1). In that case a decree had been obtained under the Bengal Tenancy Act VIII of 1869, and before execution proceedings commenced a newer Act VIII of 1885 had come into force. Section 170 of the 1885 Act prohibited any third‑party claim against property attached in execution of a decree. The issue for determination was whether Section 170 applied to a claim preferred against property attached pursuant to the decree under the 1869 Act. It was argued that a right to “prefer” a claim existed under the 1869 Act and that, under section 6 of the General Clauses Act, that right could be exercised notwithstanding the repeal of the earlier Act. The Court held that the word “proceedings” in section 6 did not include execution proceedings; consequently the matter was governed by section 170 of the 1885 Act.

Turning to the authorities cited on pages 516 and 517 in Sadar Ali v. Dalimuddin (supra), the Court explained that those references hinged on the meaning to be given to the word “proceedings” in section 6 of the General Clauses Act and therefore were of little assistance in resolving the present question. The Court therefore characterized the decision in Sadar Ali v. Dalimuddin (supra) as the first authority that extended the theory that a right of appeal, which vests at the commencement of the action, applies to the entire series of appeals provided by law. That decision was subsequently followed by a Full Bench of the Madras High Court in Vasudeva Samiar In re (supra). Coutts Trotter C. J., delivering the judgment, expressed reluctance to depart from the Full Bench decision of the Calcutta High Court and agreed with the reasoning on which it was based. The Court noted that the correctness of those decisions was never examined by the Judicial Committee because a later amendment to the Letters Patent gave retrospective effect to an earlier amendment of 1928, thereby nullifying the earlier rulings. Although those decisions were rendered obsolete, the Court observed that the theory they articulated—namely that the right of appeal in all its stages vests in the suitor at the commencement of the action—has continued to influence legal discourse, even though the Court ultimately regarded the theory as unsound.

In this case the Court observed that although the proposition that a right of appeal vests at the moment the suit is filed and thereby forms an established doctrine of jurisprudence had been treated as settled law, the reasons already set out precluded accepting that proposition as correct. Consequently the Court held that the decisions in Sadar Ali v. Dalimuddin (supra) and Vasudeva Samiar In re (supra), which had promulgated that theory, were erroneous. Accordingly the petitioner’s claim that, by instituting his suit in the Bapatla Sub Court on April 22, 1949, he acquired a vested right of appeal to the Federal Court under the law then in force, was rejected. The Court further noted that this rejection did not exhaust all the obstacles the petitioner must overcome before he could approach the Constitution as a holder of a vested right seeking its protection.

The Court then examined the hypothetical scenario that the petitioner might indeed have possessed, as contended in Sadar Ali v. Dalimuddin (supra), a right of appeal to the Federal Court before the Constitution came into effect. The Court asked whether such a right could survive the coming into force of the Constitution and remain exercisable thereafter. It explained that the Federal Court had been created by the Government of India Act, 1935, and that when the Constitution repealed that Act the Federal Court established under it was likewise abolished. The Court stated that when a court which is the forum for a statutory right of appeal ceases to exist, the right of appeal to that court must inevitably cease as well. It emphasized that it was undisputed that a statutory right of appeal could be removed by express provision or by the necessary implication of a statute, and that the abolition of the very court to which the appeal is directed clearly expressed such an intention.

The Court posed the logical question of how a party could exercise a right of appeal if the court in which the appeal must be made had disappeared. It identified this issue as the principal ground for the decision in Veeranna v. Chinna Venkanna (supra) and observed that the arguments submitted before the Court had offered virtually no answer to this point.

The Court then turned to the argument that the decision in Veeranna v. Chinna Venkanna (supra) was based on a mistaken understanding of the Privy Council’s ruling in Canada Cement Co. v. East Montreal (Town of) (1). The petitioner’s counsel argued that the Privy Council had held that a right of appeal is lost when the court to which it lies is abolished, whereas the Court noted that the Privy Council decision actually involved no abolition of a court. The Court summarized the factual background of Canada Cement Co. v. East Montreal (Town of) (supra): the suit had been commenced in Court A, the Circuit Court of Montreal, and under the then‑applicable Code of Civil Procedure decisions of Court A were appealable in certain circumstances to Court B, the Court of Review. While the action was pending, a new statute, 10 Geo. 5 Ch. 79 (Quebec), was enacted, repealing all provisions of the Code that provided for appeals from Court A. Section 42 of the new statute created Court C, the Court of King’s Bench, with jurisdiction over all matters in which an appeal lay under the law. This legislative change set the stage for the subsequent procedural history that the Court would later consider.

In the case that the Court examined, the enactment of section 42 of the new statute conferred jurisdiction upon the Court of King's Bench over every matter in which an appeal existed under the law. After that statute became effective, the suit was tried and a decree was rendered. The defendant then filed an appeal under section 42 to the Court of King's Bench. The Court of King's Bench dismissed the appeal on the ground that it was incompetent, and the defendant subsequently appealed that dismissal to the Privy Council. The issue before the Privy Council was whether the appeal to the Court of King's Bench was a competent appeal. The respondent argued, inter alia, that the provisions of the Code of Civil Procedure which had granted a right of appeal had been repealed before the appeal was lodged, and that the new statute then in force did not provide any such right; consequently, the appeal was incompetent. The Privy Council accepted this argument and upheld the dismissal. The Court noted that this decision would have to be revisited when it considered the applicability of Article 135. At this point the Court turned to the criticism raised by the petitioner that, in the earlier Canadian decision, there was no question of abolition of the Court of Review, and that the earlier decision in Veeranna v. Chinna Venkanna had erred in assuming such abolition. The Court observed that the judgment in Canada Cement Co. v. East Montreal (Town of) did not expressly state that Court B, the Court of Review, had been abolished. Nevertheless, the judgment said nothing about the fate of that Court. It is probable that Court B was in fact abolished because it existed only under the Code of Civil Procedure, and all the provisions of that Code providing for appeals from Court A to Court B had been repealed. Section 42 of the new statute then provided that the Court of King's Bench was to hear all appeals that were maintainable under the law. If Court B no longer possessed any jurisdiction to hear appeals, it must have been abolished, since it was a Court of Review with no remaining function. This reasoning was reflected in the view expressed by Coutts Trotter C.J. in Vasudeva Samitiya (In re). In that case the effect of the 10 George V, chapter 79 (Quebec) was summarised as follows: the right of appeal was transferred from the abolished Court to the appellate side of the Court of King's Bench in Quebec, but no provision was made for transference of appeals that could have lain to the abolished Court to the newly created appellate court. Accordingly, the Privy Council held that an appeal from the Circuit Court to the Court of King's Bench did not lie. Even assuming that the Court of Review had not been formally abolished in Canada Cement Co. v. East Montreal, the principle that, upon abolition of a court, the vested right of appeal to that court falls away, remains sound and, independent of the authority of that decision, is unassailable.

The Court had earlier affirmed the principle in Dajisaheb Mane and others v. Sankar Rao Vithal Rao Mane and another, stating that when a court to which an appeal is directed is completely abolished without any substitute forum for disposing of pending matters or receiving appeals, the vested right of appeal unquestionably perishes. The petitioner attempted to overcome this obstacle by invoking Clause 20 of the Adaptation of Laws Order, 1950, which the President had issued under the powers conferred by Article 372(2) of the Constitution. Clause 20 declares that nothing in the Order shall affect the prior operation of, or any act duly done or suffered under, any existing law, nor any right, privilege, obligation or liability already acquired, accrued or incurred under such law, nor any penalty, forfeiture or punishment incurred for an offence already committed against such law. The petitioner contended that the right of appeal he possessed to the Federal Court, based on the authorities Colonial Sugar Refining Company v. Irving, Sadar Ali v. Dalimuddin and Vasudeva Samiar In re, was preserved by the language of Clause 20, and therefore the constitutional provisions should be interpreted to give effect to that right. The Court observed that this argument rested on a misunderstanding of the nature of the petitioner’s alleged right. The petitioner did not have a general right to appeal to a higher court superior to the High Court; his right was specifically the right to appeal to the Federal Court against a High Court decision. When the Federal Court was abolished, that specific right vanished by its very nature, leaving nothing upon which Clause 20 could operate or be preserved. The petitioner further argued that the present Court performed the functions formerly exercised by the Federal Court and thus should be deemed its successor, thereby attracting the operation of Clause 20. The Court found this contention untenable because the present Court was created by the Constitution as a new institution, deriving its jurisdiction and powers directly from constitutional provisions. The Court cited Patanjali Sastri J.’s observation in State of Seraikella and others v. Union of India, noting that the Federal Court, which had exclusive jurisdiction over pending suits, was abolished and a new Supreme Court of India was established with original jurisdiction limited to disputes concerning legal rights between states as recognized by the Constitution. The petitioner also relied on Article 374(2), which transfers all proceedings pending in the Federal Court at the commencement of the Constitution to the Supreme Court, but the Court explained that this provision demonstrates that, absent such a transfer mechanism, the Supreme Court would have no jurisdiction over those cases, thereby undermining the petitioner’s claim.

It was observed that the absence of a specific provision would have left this Court without jurisdiction over the matters in question, a conclusion that directly contradicts the petitioner’s argument. The discussion also referred to Article 375, which provides that all courts existing in the territory of India shall continue to perform their functions subject to the Constitution. The Court pointed out that this article applies only to courts that were continuing to operate after the Constitution came into force, as illustrated by the citation (1) [1951] S.C.R. 474, 497. The Federal Court, however, ceased to exist under the Constitution and therefore could not be covered by Article 375. Consequently, even if the petitioner possessed a vested right of appeal to the Federal Court, that right was extinguished when the Federal Court was abolished, and no surviving right remained that could be protected by the Constitution. In this context the Court noted that any attempt to interpret Article 133 in a way that limits the ordinary and plain meaning of its language loses its justification. The Court had previously assumed, for the sake of argument, that if a vested right of appeal existed, it might be permissible to read into Article 133 additional wording to preserve that right. The Court then questioned that assumption, asking whether it is proper to import words that are not present in the statute. The Court affirmed that the law on the subject is clear: a court tasked with interpreting a statute must determine the legislature’s intention from the words actually employed. As Lord Watson stated in Salomon v. Salomon and Co. Ltd. (1), the legislature’s intent can only be ascertained from the express words it chose or from reasonable implication. When the statutory language is clear and unambiguous, the court’s role is merely to give effect to it, regardless of the consequences, because the words themselves express the legislature’s purpose, as observed by Lord Chief Justice Tindal in Warburton v. Love‑land (2). Moreover, if the legislative intention expressed in clear language is reasonably apparent, the court may interpret the provision to fulfill that intention even if the wording is defective, and it may supply words omitted by mistake or accident. However, when the language of the enactment is clear and its meaning unmistakable, it is not permissible to insert new provisions that would expand or contract its meaning, as noted in Halsbury’s Laws of England, Hailsham Edition, Volume 31, pages 497‑498, paragraph 635. Applying these established principles, the Court proceeded to its analysis.

The Court observed that the wording of Article 133 of the Constitution is plain and without ambiguity. Because the language is clear, the provision can be given its full operation without inserting any additional words that are not contained in the text. Applying the established rules of statutory construction, the Court held that it is impermissible to add expressions such as “instituted after the coming into force of the Constitution” to Article 133. The Court emphasized that the objection to such an enlargement is even stronger when the text under consideration is part of the Constitution itself, which commands a strict and literal approach. Moreover, the Court found a sound reason for refusing the proposed addition. Article 133 is the constitutional provision that authorises appeals to the Supreme Court from judgments, decrees and final orders issued by High Courts located within the territory of India. Under this article, appeals against the judgments, decrees and final orders of High Courts situated in the Part B States also lie to the Supreme Court. The Court warned that if Article 133 were confined only to judgments rendered in proceedings that were instituted after the Constitution came into force, there would be no constitutional mechanism to entertain appeals from judgments of the Part B High Courts in suits that were instituted before the Constitution but decided after its commencement. Consequently, accepting the petitioner’s contention would leave a gap in the constitutional scheme, effectively denying any avenue of appeal for those judgments, a result that the Court considered sufficient to reject the limited construction proposed.

The Court went on to examine the various grounds advanced for a restricted interpretation of Article 133 and found none of them persuasive. It held that, according to the terms of Article 133, appeals from judgments and decrees pronounced after the Constitution’s commencement are governed by that provision. Therefore, if a party does not possess a right of appeal under Article 133, that party cannot invoke Article 135, which is limited to matters that do not fall within the scope of Article 133. The Court then considered the argument that, even assuming Article 133 applies to all post‑Constitution judgments, decrees and final orders, the present appeal might fall outside its purview because it allegedly fails to satisfy the valuation requirements stipulated in Article 133, and consequently should be dealt with under Article 135. The Court quoted the exact wording of Article 135: “with respect to any matter to which the provisions of Article 133 do not apply.” It explained that the matter to which Article 133 applies is an appeal from any judgment, decree or final order issued in a civil proceeding by a High Court within India. When those conditions are met, the matter lies within the ambit of Article 133. Even if a case that falls within that ambit does not meet the valuation conditions, the Court clarified that this does not render the matter outside the application of Article 133. Hence, such a case cannot be said to be a matter to which Article 133 is inapplicable, and consequently Article 135 would not be the appropriate provision. The Court further noted that a second appeal presented to a High Court under section 100 of the Civil Procedure Code remains an appeal under that section and does not alter the analysis of the constitutional provisions.

The Court observed that the Procedure Code continues to be an appeal within the meaning of the constitutional provision, even though it does not specify any particular grounds on which the Court may interfere. The Court further explained that a candidate’s eligibility to sit for an examination is not destroyed simply because the candidate does not succeed in passing the examination. In the case before it, the subject‑matter of the proposed appeal was the judgment delivered by a Bench of the Andhra High Court, a judgment that itself had been rendered on appeal from a decree that had been passed in a suit. Accordingly, the Court held that the matter fell directly within the scope of Article 133, and that the failure of the appeal to satisfy the valuation requirement or any other condition prescribed in that article did not remove its character as a matter to which the provisions of Article 133 applied. Consequently, the Court concluded that Article 135 could not be invoked. The Court also rejected the petitioner’s contention that an appeal against a judgment or decree that falls within Article 133 should be excluded from its ambit merely because it does not meet the valuation criteria laid down in that article. To illustrate its point, the Court imagined a judgment passed after the Constitution by a High Court in a Part B State in respect of a suit that had been instituted before the Constitution, where the value of the suit was more than Rs 10,000 but less than Rs 20,000. The Court noted that no appeal against such a judgment would be maintainable under Article 133 for lack of the required valuation, and that Article 135 would not help because it pertains only to matters over which the Federal Court could have exercised jurisdiction, and the Federal Court never had jurisdiction over High Courts in Part B States. The Court then observed that, after the Constitution, judgments in the same class of suits—those valued between Rs 10,000 and Rs 20,000—would be appealable if they were passed by a High Court in a Part A State, but not if they were passed by a High Court in a Part B State. The Court questioned the purpose of this differentiation and emphasized that there was no issue of discrimination under Article 14, since the discussion concerned the constitutional provisions themselves. Nevertheless, the Court warned against adopting an interpretation that would deny citizens equality before law and equal protection of law unless such a denial were compelled by the text. The Court pointed out that some of the Part B States had a Privy Council, and that Article 374, sub‑paragraph (4), provided that appeals pending before the Privy Council at the commencement of the Constitution were to be transferred to the Supreme Court, thereby placing them on the same footing as appeals pending before the Federal Court under Article 374(2). In light of this, the Court asked why Articles 133 and 135 should be construed in a way that would create discrimination among similarly situated litigants. The Court concluded that a proper construction, consistent with the intendment of the Constitution, was that Article 133 should apply to all appeals against judgments, decrees or final orders passed in civil proceedings after the Constitution came into force, and that if an appeal is not maintainable under Article 133, it cannot be maintainable under Article 135.

The matter may also be considered from another perspective. When a statutory provision confers a right of appeal and simultaneously sets out the conditions for exercising that right, the conditions implicitly negate the right if they are not fulfilled. There is no substantive difference between a provision that declares an appeal shall lie when certain specified conditions are satisfied and a provision that declares an appeal shall not lie unless those conditions are satisfied. If Article 133 had been drafted to state that no appeal shall lie against a judgment or decree in a civil proceeding unless the requirements prescribed therein are met, it would not be argued, I presume, that Article 135 should be interpreted to overturn the prohibition created by Article 133. In my view, the same result follows from the language of Article 133 as it currently stands, and it should be interpreted to mean that no appeal shall lie unless the requirements of that article are satisfied. Had the legislature intended that an appeal should be permissible against judgments, decrees and final orders passed in civil proceedings instituted before the Constitution when the value of the subject‑matter was Rs 10,000 or above, it could have expressed that intention clearly by adding a proviso to Article 133(1), which deals with that category of appeals, rather than leaving the matter to be inferred through a process of complex and debatable reasoning. Accordingly, even if a right of appeal had vested in the petitioner before the Constitution, as he contended, that right must be deemed to have been withdrawn by necessary implication under Article 133. It has been uniformly held in America that when a right of appeal is granted subject to the valuation of the subject‑matter, the provision must be interpreted as denying a right of appeal where that valuation condition is not met. In Durousseau v. United States (1), dealing with a provision that provided for an appeal only when the subject‑matter exceeded $2,000, Chief Justice Marshall observed that “the Court implies a legislative exception from its constitutional appellate power in the legislative affirmative description of those powers. Thus, a writ of error lies to the judgment of a Circuit Court, where the matter in controversy exceeds the value of $2,000. There is no express declaration that it will not lie where the matter in controversy shall be of less value. But the Court considers this affirmative description as manifesting the intent of the Legislature to except from its appellate jurisdiction all cases decided in the circuits where the matter in controversy is of less value, and implies negative words.” This rule has been followed without question in American courts. The decision in Baltimore and Potomac Railroad Company v. J. H. Grant (2) is directly applicable. In that case an action claiming $2,250 was commenced on December 6, 1875, and the relevant statute at the time, s. 847 of the Revised Statute, provided that an appeal lay to a superior court only when the value of the matter in dispute was $1,000 or more. In 1879 a new law was enacted raising the valuation threshold for appeal to $2,500. The issue was whether the defendant’s right to appeal the decree was extinguished by the new legislation. Apart from repealing the earlier act, the new act was silent on the matter. The court held, following the principle set out in Durousseau v. United States, that the appeal was not maintainable because the new provisions must be read as negating the right of appeal where the value was less than $2,500.

The Court explained that under section 847 of the Revised Statute then in force, a party could appeal to a superior court only when the disputed amount was at least one thousand dollars. In 1879 a new statute was enacted that increased the monetary threshold for a statutory right of appeal to two thousand five hundred dollars. The issue before the Court was whether this amendment effectively removed the defendant’s ability to appeal a decree in the pending action, because the new law repealed the earlier statute but said nothing expressly about appeals that fell below the new monetary limit. Applying the principle articulated in Durousseau v. United States, the Court held that the appeal could not be maintained, observing that the provisions of the 1879 Act had to be interpreted as negating the right of appeal whenever the value of the dispute was less than two thousand five hundred dollars. The Court also cited Canada Cement Co. v. East Montreal (Town of) as further authority supporting the same conclusion. In that case, while proceedings were ongoing in Court A, a new statute abolished the then‑existing Code of Civil Procedure provisions that allowed an appeal from Court A to Court B and instead vested Court C with jurisdiction to hear all appeals that arose under the law. The Court referred to section 64, which provided that, unless the new Act specified otherwise, all matters that at the time of its commencement lay within the competence of the Court of Review would thereafter fall within the competence of the Court of King's Bench sitting in appeal. The Court noted that this wording was substantively equivalent to Article 135, the only difference being a change in phrasing concerning matters to which Article 133 did not apply. The Privy Council, in ruling that the appeal was not competent under section 64, observed that the appeal had not been filed when the new statute came into force, although the original proceedings before the Circuit Court had already begun. Consequently, the statutes that might have conferred any right of appeal were replaced by provisions that granted none, and section 64 had to be read as qualified by the explicit removal of the Court of Review’s powers concerning the Circuit Court. Accordingly, the replacement of a provision that created a right of appeal with a provision that provided no such right barred reliance on section 64. The Court concluded that, on the same reasoning, the same result followed in the present matter.

The Court held that Article 135 could not be applied because the Constitution had abolished the Federal Court, had replaced the provisions for appeals to that Court with Article 133, and had adapted sections 109 and 110 of the Civil Procedure Code in accordance with Article 133. Whether one interpreted Article 133 as negating a right of appeal when its specified conditions were not met, or whether one saw the article as covering the entire field of appeals against judgments, decrees and final orders in civil proceedings, the result was the same: the operation of Article 135 was excluded because the matter in question fell within the domain of Article 133. The parties also debated the precise meaning of the word “matter” in Article 135. The petitioner argued that “matter” was a broad term that would encompass judgments and decrees in all civil proceedings. While that view could be accepted, the Court observed that, by its very nature, Article 135 applied only to proceedings to which Article 133 did not apply. Consequently, appeals against judgments, decrees and final orders in civil proceedings could fall within Article 135 only if those judgments, decrees or orders had been issued before the Constitution came into force; appeals to orders issued after the Constitution could not rely on Article 135. The Court further noted that Article 135 would also apply to proceedings under special statutes, for example appeals against orders made under the Indian Income‑Tax Act, where sections 109 and 110 of the Civil Procedure Code were inapplicable. Considering the substance of Article 135 together with the adapted sections 109 and 110, the Court explained that, in general, matters for which an appeal would have been permitted under sections 109 and 110 are now governed by Article 133 when the judgment, decree or final order was rendered after the Constitution, while other matters fall under Article 135. However, because the Court had concluded that the present case fell within the scope of Article 133 and therefore Article 135 was excluded, it saw no need to render a definitive opinion on the exact scope of the word “matter” in Article 135. In summary, the Court found the petitioner’s contention that the proposed appeal did not fall within Article 133 because that article applied only to judgments, decrees and final orders made in proceedings instituted after the Constitution to be untenable. This contention was rejected for three reasons: first, it assumed that a right of appeal to the Federal Court existed before the Constitution, which had no basis in principle or in Indian statutory law; second, it required reading into Article 133 words that were not present and that would limit the plain meaning of the provision; and third, accepting it would produce the anomalous result that no right of appeal would exist.

In this matter the Court examined the scope of the provisions that govern appeals from judgments, decrees and final orders that were made after the Constitution came into force, even when the civil proceedings themselves had been instituted before the Constitution in the Courts of the Part B States, irrespective of the monetary value of the suit. The petitioner argued that an appeal which would otherwise fall within the ambit of Article 133 must be held outside that article because the appeal does not meet the valuation requirement prescribed in the article, and consequently should be governed by Article 135. The Court rejected that submission as untenable for three principal reasons. First, Article 133 must be read as exhaustive of the law on appeals that are directed against judgments, decrees or final orders in civil proceedings; it therefore covers every such appeal unless the article itself excludes it. Second, by implication the article negates any appeal that fails to satisfy the valuation requirement, so it cannot be interpreted to permit appeals that do not meet that requirement. Third, accepting the petitioner’s view would create an unreasonable discrimination: appeals from judgments, decrees or final orders arising out of proceedings instituted before the Constitution and decided by High Courts in the Part A States would remain competent, while similar appeals arising out of proceedings instituted in the Part B States would be barred, even though some of those Part B States historically provided for appeal to an authority functioning as the Privy Council. The Court therefore held that the correct construction of Article 133 is that it applies to all appeals against judgments, decrees and final orders of the High Courts throughout India that are made after the commencement of the Constitution, regardless of whether the underlying civil proceedings were instituted before or after that date. This construction yields a simple, clear and uniform rule for the entire country and avoids any discrimination between litigants who began their actions before the Constitution and those who began after, as well as between litigants in Part A and Part B States.

Applying that interpretation, the Court concluded that the present petition is covered by Article 133. However, the appeal in question fails to satisfy the qualification set out in Article 133(1)(a) and is therefore incompetent. In accordance with the view endorsed by the majority of the Court, special leave to appeal to this Court was granted on the usual terms. The petitioner was awarded the costs of the application against Respondents No. I and No. II. Moreover, the Court ordered a stay of the order sought in Civil Miscellaneous Petition No. 579 of 1956, to remain in effect until this appeal is finally determined. The special leave was thereby formally granted.