Seth Gulab Chand vs Seth Kudilal And Another

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 230 of 1953

Decision Date: 28 March, 1958

Coram: A.K. Sarkar, S.K. Das

Seth Gulab Chand filed a petition against Seth Kudilal and another on 28 March 1958 before the Supreme Court of India. The judgment was delivered on that same date. The case was recorded under the citations 1958 AIR 554 and 1959 SCR 313. The bench that heard the matter consisted of Justice A.K. Sarkar together with Justice S.K. Das. Additional judges mentioned in the record include Justice Bose, Justice Vivian Das, Justice Sudhi Ranjan (Chief Justice), Justice Aiyyar, Justice T.L. Venkatarama Das and Justice S.K. The matter involved the interpretation of the United State of Gwalior, Indore and Malwa (Madhya‑Bharat) High Court of Judicature Act, VIII of 1949, specifically sections 2(b) and 25, and raised issues concerning the retrospective operation of statutes, the rule of presumption, the duty of the court to refer to pre‑existing law, and the right of appeal.

The headnote of the judgment explained that a presumption against retrospective operation of a statute may be invoked only when the language of the provision is ambiguous as to whether it was intended to operate retrospectively. If the wording of a statute expressly confers retrospective effect, the presumption cannot be applied to defeat that intention. The Court clarified that the rule does not oblige courts to be obstinately resistant to giving a statute retrospective effect, nor does it permit courts to read additional words into the enactment solely to invoke the presumption. In reaching this conclusion, the Court referred to earlier authorities, namely Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi (1927) LR 54 IA 421, Smith v. Callander (1901) AC 297 and Reid v. Reid (1886) LR 3 I Ch D 402.

In the factual background, the appellant, Seth Gulab Chand, instituted a suit for specific performance of a sale agreement before the High Court of Indore while the state was still a princely entity under British suzerainty. On 22 April 1948 the rulers of Gwalior, Indore and several other states entered into a covenant establishing the United State of Gwalior, Indore and Malwa (Madhya‑Bharat). The trial judge rendered a decree on 11 June 1948. Subsequently, on 16 June 1948, the Ruler of Indore transferred administration of his state to the Raj Pramukh of the United State as stipulated in the covenant. By a Raj Pramukh ordinance, a High Court for the United State was created, and the former High Court of Indore ceased to function from 29 July 1948. The respondents appealed to the Divisional Bench of the new High Court on 24 August 1948, and the appellant filed a cross‑appeal under the same ordinance. The Divisional Bench decided in favor of the respondents on both the appeal and the cross‑appeal, dismissing the original suit by a judgment dated 2 December 1948. The Interim Legislative Assembly of the United State later enacted the United State of Gwalior, Indore and Malwa (Madhya‑Bharat) High Court of Judicature Act, VIII of 1949, which came into force on 18 January 1949 and repealed the earlier ordinance. Section 2(b) of the Act provided: “This Act shall apply to all Criminal and civil …”.

Section 2(b) of the Act stated that the legislation applied to all criminal and civil proceedings, including those relating to testamentary, intestate, matrimonial, divorce and insolvency matters, which were pending in the courts of any State on the date that the State became part of the United State, as well as to any such proceedings that arose in those States after that date. Section 25 of the same Act provided that a special appeal could be taken to the Full Bench of the High Court from a decree or an appealable order issued by a Divisional Bench composed of two judges of the High Court when exercising extraordinary or appellate civil jurisdiction. The appellant consequently filed a special appeal before the Full Bench of the High Court under Section 25, challenging the judgment of the Divisional Bench. The Full Bench dismissed the appeal, declaring it incompetent on the ground that Section 25 could not be given retrospective effect in a manner that would disturb the right of the respondents to the finality of the Divisional Bench’s judgment, which had been rendered before the Act came into force.

The Court held that, although Section 25 was not expressly retrospective, it must be read together with Section 2(b), which conferred applicability of the Act – and therefore of Section 25 – to the categories of proceedings listed therein. Since the appeal before the Divisional Bench had been filed after the State of Indore had been incorporated into the United State, it unquestionably fell within the proceedings covered by Section 2(b). Accordingly, the competency of the special appeal could not be questioned. The Court further observed that there is no absolute rule forbidding reference to pre‑existing law for interpreting a new enactment; however, where the language of the new statute is clear, simple, and unmistakably indicates an intended change in the law, and no reason exists to look to the earlier law, such reference must be rejected. The decisions in Tumahole Bereng v The King (1949) A.C. 253, Abdur Rahim v Mohomed Barkat Ali (1927) L.R. 55 I.A. 96 and In re Mayfair Property Co. (1898) 2 Ch. 28 were cited.

The judgment was delivered in a civil appellate jurisdiction concerning Civil Appeal No. 230 of 1953. The appeal was taken from the judgment and decree dated 29 August 1950 of the former Madhya Bharat High Court at Indore in Special Appeal No. 5 of 1949, which itself arose from the judgment and decree of 2 December 1948 in Civil First Appeal No. 61 of 1948, that had been entered against the judgment and decree of 11 June 1948 on its original side in Civil Original Suit No. 30 of 1947. The appellant was represented by counsel, and the respondents were also represented by counsel. The judgment was delivered on 28 March 1958 by Justice Sarkar, who noted that the princely states which existed in British India merged into the Union of India shortly after independence, and that some of those states, including Indore, passed through transitional stages before their incorporation.

In this case the Court explained that the appeal rested on legal questions that arose during the transitional period through which the Princely State of Indore passed before its merger into the Indian Union. Until 22 April 1948 the State of Indore, as one of the princely states, possessed internal sovereign authority and operated its own system of laws and courts. The source of that authority was the ruler of Indore, in whom the sovereign power was vested, and the highest judicial body in the State was identified as the High Court. The suit from which the present appeal originated had been filed by the appellant against the respondents in the Indore High Court on 6 November 1947. The suit sought specific performance of an agreement according to which Govindram Sakstria, whose heirs and legal representatives were the respondents, had promised to sell a share in a business to the appellant. Because Govindram Sakstria had died before the suit was instituted, the action was brought against his heirs and representatives. On 22 April 1948 the rulers of Gwalior, Indore and several other states in the Malwa region entered into a covenant to unite and integrate their territories into a single entity named the United State of Gwalior, Indore and Malwa (Madhya‑Bharat). The covenant provided that any other state whose ruler later agreed, with the approval of the Government of India, to merge into the United State would also be included. Article 3 of the covenant created a Council of Rulers and designated a President, called the Rajpramukh, with the ruler of Gwalior named as the first Rajpramukh. Article 6 required each covenanting ruler to transfer the administration of his state to the Rajpramukh no later than 1 July 1948 and stipulated that upon such transfer all rights, authority and jurisdiction formerly belonging to the ruler would vest in the United State, with similar provisions for states that later joined by agreement. Article 10 directed that, as soon as practicable, a Constituent Assembly be constituted to frame a constitution for the United State, and that the Rajpramukh should, by 1 August 1948, establish an interim Legislative Assembly. The article further empowered the Rajpramukh, until the constitution framed by the Constituent Assembly came into force, to make and promulgate ordinances for the peace and good government of the United State, noting that such ordinances would have effect for a limited period.

In this matter, the Raj Pramukh was authorised to issue ordinances that would remain in force for no longer than six months unless altered or repealed by an act of the interim Legislative Assembly. Although this point was not decisive for the appeal, the Court noted that the United State later became a Part B State under the Constitution of India and eventually merged into the present State of Madhya Pradesh. The suit filed by the appellant was heard by a single judge of the Indore High Court, whose decree was delivered on 11 June 1948. Five days later, on 16 June 1948, the ruler of Indore transferred the administration of his State to the Raj Pramukh of the United State in accordance with the Covenant. Despite that transfer, the High Court of Indore continued to operate for a short period. On 19 June 1948 the Raj Pramukh promulgated Ordinance No. 2 of 1948, which provided for the creation of a High Court for the United State. Section 2 of that Ordinance stated that it would become effective on a date to be specified by the Raj Pramukh, and a notification issued on 28 July 1948 fixed 29 July 1948 as the commencement date. Consequently, on 29 July 1948 the High Court of the State of Indore ceased to function. Section 35 of Ordinance No. 2 declared that when the Raj Pramukh assumed control of a State, the State’s High Court would be dissolved and all pending matters would be transferred to the newly established United State High Court. The Court observed that this provision created an anomaly for States such as Indore, where the takeover occurred before the United State High Court came into existence; at the moment of takeover there was no court to which the pending cases could be transferred. To correct this defect, the Raj Pramukh issued Ordinance No. 14 of 1948 on 16 October 1948. That ordinance replaced Section 35 of Ordinance No. 2 with a new clause, which was deemed to have been in force from the outset. The new clause provided that for any State whose administration had been taken over before the United State High Court was established, the State’s High Court would cease to exist only on the date of the United State High Court’s establishment, and at that time all cases pending before the State High Court would be transferred to the United State High Court, including any appeals that had previously been directed to the State High Court.

It was held that any appeal which had previously been pending before the High Court of the State would, after the amendments, be deemed to be pending before the High Court of the United State. Prior to the promulgation of Ordinance No. 14 of 1948, the respondents filed an appeal on 24 August 1948 to the Divisional Bench of the High Court of the United State against the decision of the High Court of Indore that had decreed the appellant’s suit on 11 June 1948, a decision that had been mentioned earlier in the record. A few days thereafter, on 7 September 1948, the appellant filed a cross‑appeal to the same Divisional Bench challenging the identical decision. The Divisional Bench rendered its judgment on 2 December 1948, deciding both the appeal and the cross‑appeal in favour of the respondents and consequently dismissing the appellant’s suit. Subsequent to these proceedings, the United State of Gwalior, Indore and Malwa (Madhya‑Bharat) High Court of Judicature Act, VIII of 1949, hereinafter referred to as “the Act”, was enacted by the Interim Legislative Assembly of the United State, which had already been constituted. The Act was brought into operation on 18 January 1949, and Section 40 of the Act expressly repealed Ordinance No. 2 of 1948. The matter before this Court required an interpretation of several provisions of the Act, which are now set out for consideration. The preamble of the Act declared that it was necessary to provide for the continuance of the High Court of Judicature for the United State of Gwalior, Indore and Malwa (Madhya‑Bharat), which had been originally established under Ordinance No. 11 of 1948, and therefore the Act was enacted accordingly. Section 4 of the Act provided, subject to any inconsistency in the subject or context, that the expression “High Court” meant the High Court functioning as the High Court of the United State. Section 2(a) stipulated that the Act would extend to the whole of the United State of Gwalior, Indore and Malwa (Madhya‑Bharat) and would apply to all persons within the United State over whom the courts of the constituent States previously had jurisdiction. Section 2(b) further provided that the Act would apply to all criminal and civil proceedings, including those relating to testamentary, intestate, matrimonial, divorce and insolvency matters, that were pending in the courts of any State at the time that the State became part of the United State, and it would also apply to such proceedings that arose in those States after that date. Section 25 created a special right of appeal to the Full Bench of the High Court from a decree or an appealable order passed by a Divisional Bench of two judges exercising extraordinary or appellate civil jurisdiction. Acting under this provision, the appellant filed on 31 March 1949 an appeal to the Full Bench of the High Court against the judgment of the Divisional Bench that had dismissed his suit, asserting that he was entitled to such appeal under Section 25 of the Act. The Full Bench, however, dismissed the appellant’s appeal on the ground that Section 25 was not available to him, and it chose not to consider the substantive merits of the appellant’s case.

It was observed that an earlier Full Bench of the High Court, which consisted of three judges, had ruled that section 25 could not be invoked when the Divisional Bench delivered its judgment before the Act came into force and when no appeal could be taken from such a judgment under that section. That earlier view was later affirmed by a larger Full Bench, comprising five judges, in a subsequent judgment. In the appeal now before this Court, the correctness of the later Full Bench’s decision is being contested. The appellant argues that section 2(b) of the Act applied the Act, including section 25, to the categories of proceedings listed in that provision, and that, consequently, section 25 conferred a right of appeal to the Full Bench of the High Court from a decision of a Divisional Bench in those proceedings. He further submits that the judgment of the Divisional Bench dated 2 December 1948, from which he appealed to the Full Bench, was rendered in such a proceeding, and therefore his appeal was competent. The High Court does not appear to have ruled that the proceeding fell outside the categories mentioned in section 2(b); in fact, it seems that it was one of those categories. Section 2(b) identifies two kinds of proceedings: first, those pending in the courts of any State on the date that State was incorporated into the United State; and second, those that arose in the States after that date. The proceeding in which the Divisional Bench pronounced its judgment was an appeal from a decree of a single judge of the Indore High Court dated 11 June 1948, i.e., before Indore’s inclusion in the United State. However, the appeal itself was filed on 24 August 1948, i.e., after Indore had become part of the United State. The appellant contends that the fact that the original decree was passed before the inclusion date does not affect the status of the appeal, because an appeal is merely a continuation of the original suit and should therefore be regarded as having been pending since the suit was filed, and consequently as pending on the date of Indore’s incorporation. The decision in Dinonath Ghose v Shama Bibi was cited in support of that contention. In any event, there is no doubt that the appeal in which the Divisional Bench delivered its 2 December 1948 judgment was a proceeding of the second kind referred to in section 2(b), namely “proceedings arising in the said States after those dates,” i.e., after the date on which the State was included in the United State.

In this part of the judgment the Court considered the meaning of the words “States” in section 2(b). The Court observed that those words could not be understood to refer to proceedings arising within a Princely State after that State had ceased to exist because it had been incorporated into the United State; once incorporation occurred no new proceeding could arise in the former Princely State. If the words were given that meaning, the relevant portion of section 2(b) would become ineffective. However, the Court stated that such a result was not inevitable. It held that the words may instead be read to refer to proceedings that arise in the territory that formerly formed a Princely State but that is now part of the United State. The Court referred to the earlier authority (1900) I.L.R. 28 Cal. 23 in support of this interpretation and concluded that this construction gives the proper meaning to the phrase. Accordingly, the appeal which resulted in the judgment of the Divisional Bench dated 2 December 1948 was a proceeding that arose in the area of the former Indore State after that State had been incorporated into the United State, because the appeal was filed after the date of incorporation. Thus the appeal qualified as a “second‑kind” proceeding mentioned in section 2(b). The Court then turned to the High Court judges’ rejection of the appellant’s claim that section 25 conferred a right of appeal to the Full Bench from a Divisional Bench judgment rendered in a proceeding covered by section 2(b). The Court summarized the High Court’s reasons. Firstly, to accept the appellant’s view would require giving the Act retrospective effect, thereby interfering with the respondents’ vested right, existing at the time the Act was passed, to the finality of the Divisional Bench judgment delivered before that date. Secondly, the rules of statutory construction require that any retrospective operation be imposed only when the language of the statute compels it; the Court observed that section 2(b) contained no such language and, when properly understood, merely gave the High Court of the United State jurisdiction over proceedings that were pending in the High Court of a Princely State on the date of that State’s inclusion in the United State. Thirdly, even if some retrospective effect were to be recognized, it would be limited to proceedings that were pending at the time of inclusion and not to those that had already been finally decided before the Act came into force. The Court accepted that the Divisional Bench judgment was final under the law as it stood on the date it was rendered and that no appeal was available before the Act’s commencement. Consequently, the respondents possessed a vested substantive right to the finality of that judgment, and granting the appellant’s contention would deprive them of that right. The Court therefore identified the sole issue remaining in the appeal as whether section 25 creates a right of

In considering whether an appeal could be taken from a judgment of the Divisional Bench, the Court first reiterated the well‑settled rule that a provision which affects a right that already existed at the time a statute is enacted must not be applied retrospectively unless the legislation contains an express provision or a necessary intention to do so. This principle was expressly stated in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi. The Court observed that the rule against retrospective operation applies only in situations where the language of the statute leaves the intention to apply it retrospectively uncertain. When the wording of a statute plainly indicates that it is to operate retrospectively, the rule does not apply, because it is within the Legislature’s competence to make an Act retrospective, as was noted in Smith v. Callander. The Court further cited the observation of Bowen L.J. in Reid v. Reid, explaining that the particular rule of construction is valuable only when the statutory language is not clear. He quoted the familiar maxim “omnis nova constitution futuris forman imponere debet non praeteritis,” which means that, except in special cases, a new law should be construed so as to interfere as little as possible with vested rights. The Court emphasized that this rule does not demand an “obdurate persistence” on the part of the courts in refusing to give a statute retrospective effect; rather, it requires careful analysis of the statute’s language.

The Court then turned to the language of the Act under consideration. Section 25 of the Act did not contain any words indicating that it was intended to have retrospective operation; it merely created a new right of appeal that could be exercised only after the Act had come into force. However, Section 2(b) of the same Act provided that the Act would apply to all civil and criminal proceedings pending in the courts of any State on the date on which that State was included in the United State, as well as to proceedings arising in those States after those dates. By this provision, Section 2(b) extended the operation of Section 25, together with all other sections of the Act, to the pending proceedings identified in it. The Court reasoned that the effect of making a provision that creates a right of appeal applicable to a pending proceeding could only be that an appeal would be permissible under that provision from any judgment rendered in that proceeding. Consequently, the Court held that the language of Section 2(b) applied Section 25 to a proceeding that was pending on the relevant date, thereby granting a right of appeal from the judgment of the Divisional Bench regardless of whether the judgment was delivered before or after the Act became operative.

In this case the Court observed that section 2(b) operates retrospectively. It applies to a proceeding that was pending before the Act came into force and therefore creates a right of appeal from a judgment of a Divisional Bench in that proceeding, irrespective of whether the judgment was delivered before or after the Act became effective. The language of the provision plainly confers a retrospective effect and the Court found no room to invoke the presumption against retrospective operation. Some submissions argued that section 2(b) merely extends the jurisdiction of the High Court over pending cases that would otherwise lie beyond its reach and that it was not intended to give any part of the Act retrospective effect. Those submissions relied on the fact that section 2(b) is placed alongside section 2(a), which only delineates the territories and persons over which the High Court may exercise authority under the Act. The Court, however, held that whether a provision creates jurisdiction depends on the wording of that provision itself, not on its proximity to another section that defines jurisdiction. Further argument was made that the Act repealed and substantially re‑enacted Ordinance No 2 of 1948 and that the corresponding clause in the Ordinance, section 4(b), which used language almost identical to section 2(b) of the Act, dealt only with jurisdiction; consequently section 2(b) should be understood in the same way. The learned Judges of the High Court accepted that contention but the Court considered them to be in error. The Court clarified that it is not saying that reference to earlier law can never be used to interpret a new statute; however, in the present case such a reference was unjustified. The High Court had relied on the case of Tumahole Bereng v The King. In that case the Judicial Committee dealt with a statute that had been partially amended and, recalling Lord Watson’s warning in Bradlaugh v Clarke that it is “an extremely hazardous proceeding to refer to provisions which have been absolutely repealed, in order to ascertain what the legislature meant to enact in their stead,” observed at page 267 that the circumstances of the present case were different for two reasons. First, the wording of the section as it now stands is sufficiently difficult and ambiguous to justify examining its evolution in the statute book as a proper and logical approach. Second, the purpose of the present enquiry is to determine the true meaning of the portion of the section that remains unchanged, and there is no basis to think that

The Court began by noting that the substitution of a new proviso was intended to alter the existing legal position. It then examined the language of the provision currently under consideration and found that the wording presented no difficulty. The language was described as simple and it applied all the sections of the Act to certain specified proceedings. Among those sections, section 25 was identified as a new provision, and the presence of this new section clearly demonstrated that the legislature intended to bring about a change in the law.

The Court stated that it did not wish to imply that the Judicial Committee had exhaustively enumerated every circumstance that would justify a reference to the old law. It was sufficient, in the Court’s view, to say that none of the circumstances identified by the Judicial Committee as warranting a reference to the preceding law were present in the present case.

The Court then referred to the decision in Abdur Rahim v. Mahomed Barkat Ali (3), a case also cited by the High Court. In that decision the Judicial Committee had to decide whether a suit fell within section 92 of the Code of Civil Procedure, 1908, and, for that purpose, it needed to determine what reliefs were encompassed by the expression “further and other relief” in that section. The Court observed that those words were wide‑ranging and required definition. Consequently, the Judicial Committee looked to the earlier law on the subject to discover what the general expression was intended to include. The Court noted that the cited authorities—(1) (1949) A.C. 253, (2) (1883) 8 App. Cas. 354, and (3) (1927) L.R. 55 I.A. 96—do not justify a resort to the old law in the present matter, because the present case contains no general words that give rise to difficulty of meaning.

The Court then considered the last authority on which the High Court relied for this part of its argument, namely the judgment in In re Mayfair Property Co. In that case the contention was that a particular interpretation would defeat the object of the Act, and to preserve that object a reference to the old law was deemed necessary. The Court found that no such question arose in the matter before it. Moreover, it was not asserted that the object of the present Act would be defeated if section 2(b) were to apply section 25 retrospectively.

For these reasons, the Court concluded that the present case is not one in which it is permissible to interpret section 2(b) of the Act by referring to section 4(b) of the Ordinance. Even assuming a reference were permissible, the Court held that section 4(b) of the Ordinance provides no assistance in interpreting section 2(b) of the Act. Section 4(b) of the Ordinance was not concerned with applying, to any case, another provision that confers a right of appeal, a right that section 2(b) of the Act clearly creates. What the Court needed to decide was the class of cases in which that right of appeal was granted, and for that purpose section 4(b) of the Ordinance could not aid the interpretation because it dealt with a different matter and did not address any such right of appeal.

Finally, the Court addressed an argument that the words “pending in the Courts in any State on the date on which the State is included in the United States” in section 2(b) could be understood as referring only to cases that were pending on that date. The Court rejected that suggestion, holding that the provision does not contain any indication that the legislature intended to limit the retrospective operation of section 25 to cases pending and not finally decided before the Act came into force.

The Court observed that the words in the provision were intended to refer to cases that were pending on the relevant day and that had not been finally decided or determined before the Act came into force. The appellant sought to justify this view by invoking the principle that a legislature should not be given a larger retrospective power than is plainly evident, even where an Act contains some retrospective effect. The Court cited Reid v. Reid (2) in support of that principle. However, the Court held that the principle did not apply to the present situation. It found no indication in section 25 that the legislature meant to restrict the retrospective operation of the provision to only those pending cases that had not terminated before the Act became effective. To adopt such a restriction, the Court noted, it would be necessary to add the words “and not finally decided before the Act comes into force” to the text of the section. The Court referenced earlier authorities, namely (1) (1898) 2 Ch. 28 and (2) L.R. (1886) 31 Ch. D‑402,408, to illustrate that the rule of presumption against retrospective operation does not require inserting additional wording into a clear provision. It reaffirmed that the presumption operates only where the language is ambiguous or capable of two meanings, and it does not justify the subtle insertion of words to make the rule applicable. The Court also addressed the argument that, although section 2(b) applies section 25 to the proceedings mentioned, it does not expressly state that vested rights would be affected by such application. The Court considered it sufficient to observe that the necessary effect of applying section 25 to those proceedings is to disturb vested rights, and that a statute may have retrospective operation without containing explicit language to that effect, even if it consequently interferes with vested rights. Concluding that the language of the provision was plain enough to give it retrospective operation, the Court held that the appellant’s appeal from the Divisional Bench was competent under section 25 of the Act. Accordingly, the appeal was allowed, the decree of the Full Bench of the High Court was set aside, and the matter was remitted to the High Court of Madhya‑Pradesh for determination on its merits. The appellant was awarded costs in both the present and the lower proceedings. The Court then noted that three other related matters had been filed: (i) an application by the appellant for special leave to appeal from the judgment of the Divisional Bench, identified as Petition for Special Leave to Appeal (Civil) No. 368 of 1957; (ii) a second application for special leave to appeal from the judgment of the Full Bench, identified as Petition for Special Leave to Appeal (Civil) No. 242 of 1957, both of which had been made as precautionary measures; and (iii) an application for leave to file additional documents in the appeal, which had also been disposed of.

In reviewing the pending applications, the Court observed that the matter to which they related had already been resolved. The Court identified that the proceeding in question was Civil Miscellaneous Petition number 472 of the year 1956, and that this petition had been disposed of prior to the present consideration. Because the petition had reached final disposition, the Court found that none of the applications concerning it had been actively pursued or pressed by the parties. Accordingly, the Court decided to dismiss each of those applications. In doing so, the Court expressly noted that it would not impose any order for costs upon either side with respect to the dismissed applications. Having addressed the status of those applications, the Court then turned to the main appeal before it. The Court concluded that the appeal was to be allowed. Following the allowance of the appeal, the Court directed that the cause be remitted back to the appropriate lower court for further determination in accordance with the direction that the appeal would now proceed on the merits. Thus, the final disposition comprised an order dismissing the unpressed applications without costs, an allowance of the appeal, and an instruction that the matter be sent back to the lower tribunal for continuation.