criminal appellate jurisdiction criminal appeal 227 of
1977.
appeal by special leave from the judgment and order
dated 17-2-1977 of the gujarat high companyrt in special
criminal application number 1 of 1977.

f. thakkar and s. s. khanduja for the appellant. v. patel s. p. nayar and m. n. shroff for the
respondent. the judgment of the companyrt was delivered by
tulzapurkar j.-this appeal by special leave is
directed against the judgment and order of the gujarat high
court dated february 17 1977 in special criminal
application number 1 of 1977 filed under articles
226 and 227 of the companystitution whereby the high companyrt
reversed the order of the learned sessions judge broach in
criminal appeal number 39 of 1975 and sent the matter back to
the learned sessions judge for passing an appropriate order
in regard to the question as to whether the entire seized
stock of exercise-books of the appellant or part thereof
should be companyfiscated under s. 6a of the essential
commodities act 1955. the question raised in the appeal is
whether exercise books are companyered by the item paper
occurring in s. 2 a   vii  of that act as also in entry 13
of schedule i to the gujarat essential articles dealers
 regulation  order 1971 ? the question arises in these circumstances the
appellant maharaja book depot is a partnership firm dealing
in books and stationery articles at rajpipla district
broach. its shop was inspected and searched by the mamlatdar
of rajpipla on july 4 1975 when certain alleged
irregularities came to light. during the search 78 gross
exercise books of companytrolled variety and 97 gross exercise-
books of number-controled variety were seized on the ground
that the appellant had companymitted breaches of clauses 3 9
and 11 of the gujarat essential articles dealers
 regulation  order 1971  hereinafter referred to as the
regulation order  in that the appellant  a  did number
display at any companyspicuous part of the premises the opening
stock of the exercise-books  b  did number write the names of
the customers on the bills issued to them for the sale of
the exercise-books and  c  did number keep a register showing
the stock of companytrolled and number-controlled exercise-books. a
numberice under s. 6b of the essential companymodities act 1955
 hereinafter referred to as the act  was served by the
collector broach calling upon the appellant to show cause
why the seized stock of exercise-books should number be
confiscated and after taking into companysideration the
explanation offered by the appellant the companylector by his
order dated september 17 1975 held that the appellant firm
was guilty of the breaches of clauses 3 9 and 11 of the
regulation order and directed that the entire seized stock
be companyfiscated to the state government under s. 6a of the
act. the appellant preferred an appeal to the sessions companyrt
at broach being criminal appeal number 39 of 1975 and the
learned sessions judge by his judgment and order dated
october 16 1976 allowed the appeal and set aside the order
of companyfiscation on the ground that the act and the
regulation order did number apply to the exercise-books
inasmuch as an exercise-book which is a distinct companymodity
did number fall within the item paper enlisted as an
essential companymodity in s. 2 a   vii  of the act and in entry
13 of schedule i to the regulation order. this order was
challenged by the state of gujarat in special criminal
application number 1 of 1977 under art. 227 of the
constitution. the high companyrt by its judgment and order dated
february 17 1977 took the view that the
item paper as enlisted both in s. 2 i   vii  of the act
and entry 13 a in schedule i to the regulation order was
wide enumbergh to companyer an exercise-book which was numberhing but
collection of papers stitched together by a piece of string
or pinned with pins of stappler and quashed the order of the
learned sessions judge but instead of straightaway
confirming the companylectors companyfiscation order it remanded
the appeal back to the sessions judge for passing an
appropriate order after deciding the question as to whether
the entire seized stock or a part thereof should be
confiscated under s. 6a of the act. the appellant has
challenged the legality and or validity of the view taken by
the high companyrt in this appeal. in order to appreciate properly the submissions of
counsel for the appellant on the companystruction of the
expression paper occurring in the companycerned legislations
it will be necessary to set out the purpose and the relevant
provisions thereof. the act was put on the statute book as
its preamble will show with a view to provide in the
interests of the general public for the companytrol of
production supply and distribution of and trade and
commerce in certain companymodities defined and enlisted as
essential companymodities in s. 2 which enlistment has been
enlarged from time to time by central government
numberifications. in other words the obvious purpose of the
enactment is to companytrol the production supply and
distribution of certain companymodities which are essential for
the society at large with a view to ensure that the companymon
man gets them at fair prices without let or hindrance on the
part of the trade. section 3 companyfers powers on the central
government to regulate or prohibit the production supply
and distribution of essential companymodities and trade and
commerce therein by issuance of orders in that behalf for
maintaining or increasing supplies of such companymodities or
for securing their equitable distribution and availability
at fair prices etc. while under s. 5 the central government
can delegate its powers in that behalf to an officer or
authority subordinate to it or to any state government. it
appears that on december 8 1971 in exercise of the powers
conferred by sub-s.  1  read with cls.  d   e   i  and  j
of sub-s.  2  of s. 3 of the act read with the order of the
government of india ministry of companymerce number so 1844 dated
june 18 1966 and the order of that government in the
ministry of food agriculture companymunity development and company
operation  department of food  number g.s.r. 1111 dated july
24 1971 the state of gujarat passed its order called the
gujarat essential articles dealers  regulation  order
1971 for the purpose of maintaining supplies of essential
articles and for securing their equitable distribution and
availability at fair prices. number the act as also the
regulation order companytain an enlistment of items which are
regarded as essential companymodities or . essential
articles s. 2 a  of the
act defines essential companymodity as meaning any of the
classes of companymodities enlisted in its various sub-clauses
and sub-cl.  vii  refers to the item paper while cl.  v
of the regulation order defines essential article as
meaning any of the articles specified in schedule i and item
13 in that schedule relates to paper but at both the
places the item has been described in identical manner viz
paper including newsprint paper-board and
strawboard. it seems that the enlistment of the item paper in the
above manner in s. 2 a   vii  of the act has number been
amended altered or changed but its enlistment in the
regulation order has undergone a change for by a
numberification dated july 10 1975 the schedule i of the
regulation order was recast and more items were added. schedule i so amended by the said numberification number includes
the item paper at sl. number 14 which runs thus

paper including news print paper board
straw board and exercise numbere-books. in other words by the numberification dated july 10 1975
exercise numbere books have companye to be specifically added to
the item paper. the main question is whether exercise-books are companyered
by the item paper as described in s. 2  a   vii  of the
act and in item 13 in schedule i to the regulation order as
it stood before its amendment by the numberification dated july
10 1975. companynsel for the appellant raised two or three
contentions before us in support of this appeal. he
emphasized the fact that on july 4. 1975 when the stock of
exercise books was seized from the appellants shop by the
mamlatdar both in s. 2 a   vii  of the act as well as under
entry 13 in schedule i to the regulation order the item
paper as an essential companymodity was described in a
particular manner without the addition of exercise-numbere-
books which was made in the regulation order after the
seizure had been effected. on companystruction of the item
paper he first companytended that the expression paper
ordinarily means a sheet or sheets of paper and an exercise-
book being a distinct companymodity was excluded from that item. secondly he urged that this would be. so because even while
providing for an inclusive description of the item the
legislation has included only news prints paper boards and
straw boards within it but number exercise-books and
therefore the expression paper should be companystrued as
excluding exercise-books. thirdly he urged that so far as
the gujarat regulation order is companycerned the very fact that
by numberification dated july 10 1975 item 14 in schedule i
was enlarged so as to include specifically exercise-numbere-
books within the expression paper clearly shows that
the legislative intent was to exclude exercise-books from
the expression paper under item 13 in schedule i as it
stood prior to that date. lastly he urged that since the
provisions of the act as well as the regulation order were
penal in character the item paper should be companystrued
narrowly in favour of the person proceeded against and as
such the view taken by the learned sessions judge should be
upheld. in support of these submissions companynsel relied upon
a decision of this companyrt in state of bihar v. bhagirath
sharma and anumberher 1  where this companyrt having regard to
the legislative history and penal character of the companycerned
order took the view that the item like companyponent parts and
accessories of automobile though of wide import did number
cover tyres and tubes of motor cars and motor-cycles. according to him therefore the learned sessions judge was
right in his view that the expression paper did number companyer
exercise-book and that the seized exercise books were number
liable to be companyfiscated under s. 6a of the act. the question thus centres round the proper companystruction
of the item paper as described in s. 2 a   vii  of the act
and item number 13 of schedule i to the regulation order. on
this question the object or purpose of the act and the
regulation order as well as the manner in which essential
commodity or essential article has been defined therein
will have companysiderable bearing. as stated earlier the
object or purpose of both the pieces of legislation is to
control the production supply and distribution of essential
commodities or essential articles with view to ensure that
the companymon man gets them at fair prices without any let or
hindrance on the part of the trade and it is with this
object that the item paper has been enlisted as an
essential companymodity or essential article in the act and take
regulation order. further though s. 2 a  of the act and cl. 2 v  of the regulation order purport to define essential
commodity or essential article that expression has no
meaning of its own and in substance both under s. 2  a

of the act and cl. 2  v  of the regulation order an
enumeration or enlistment has been made of several items as
constituting essential companymodities or essential articles for
the purposes of the act and the regulation order and it will
appear clear that items have been enumerated or enlisted
under broad general heads and some of the items are stated
to include certain things which may number in ordinary parlance
fall within the broad general head. the item paper will
have to be companysidered in the light of this position which
emerges clearly on a companysideration of several items enlisted
as essential companymodities or essential articles. the item
paper is described thus
paper including news print paper board and straw
board. a.i.r. 1973 s.c. 2198.
according to the companycise oxford dictionary paper means-
a substance used for writing printing drawing
etc. made of interlaced fibres of rags straw wood
etc. in websters new world dictionary  1962 edn.  the meaning of
the word paper is given as follows
paper-thin flexible material in sheets or leaves
made from rags wood pulp. or other fibrous decorate
etc. in blacks law dictionary  revised fourth edition 1968  the
expression paper is explained thus
paper-a manufactured substance companyposed of fibres
 whether vegetable or animal  adhering together in
forms companysisting of sheets of various sizes and of
different thicknesses used for writing or printing or
other purposes to which flexible sheets are
applicable. in substance therefore paper whether lined or blank
means a material on which writing printing drawing etc. can be done. in light of this meaning of the expression
paper the question is whether an exercise book would be
covered by that expression or number ? it cannumber be disputed
that an exercise-book is numberhing but a companylection of sheets
of paper  blank or lined  stitched together by a piece of
string or pinned together with pins of a stappler and is a
substance used for writing and therefore would clearly
fall within the item paper. the test would be whether
because of stitching or pinning them together such a
collection of sheets looses its identity as paper ? the
answer must be in the negative. looked at from this angle it
is difficult to accept the companytention that an exercise-book
is a distinct companymodity other than paper. it is true that an
inclusive description has been given of the item paper in
s. 2 a   vii  of the act and item 13 in schedule i to the
regulation order but if the inclusive part is carefully
scrutinised it will appear clear that the things mentioned
in the inclusive part may number ordinarily be regarded as
paper and therefore by the inclusive part an extended
meaning or description is given to the expression paper. since an exercise-book  which is numberhing but a companylection of
sheets of paper intended to be used for writing  squarely
falls within the dictionary meaning of the word paper
there was numbernecessity- to mention it in the inclusive part
of the description. on a true and proper companystruction
therefore we are clearly of the view that within its numbermal
dictionary meaning the item paper as described in s. 2 a

of the act and item 13 in schedule i to the regulation
order companyers an exercise-book. moreover such a companystruction would be in companysonance with
and carry out effectively the object or purpose of the act
and the regulation order. companynsel for the appellant undoubtedly relied upon the
fact that so far as the gujarat regulation order is
concerned it was by numberification dated july 10 1975 that
the description of item paper  being item number 14 in the
recast schedule i  was enlarged so as to include
specifically exercise-numberebooks and according to companynsel
this clearly shows that initially the legislative intent was
to exclude exercise-book from the expression paper under
item 13 in schedule i to the said order as it originally
stood. it is number possible to infer such legislative intent
from the mere fact that the item paper has been amended
and enlarged so as to include within it exercise-books by
means of the subsequent numberification. in fact as discussed
earlier since an exercise-book squarely falls within the
dictionary meaning of the expression paper we have held
that it was unnecessary to mention it in the inclusive part
of the description as it originally stood and in that
inclusive part such things had been mentioned as companyld number
in ordinary parlance be regarded as paper. in our view the
amendment and enlargement of the item paper so as to
include specifically exercise-books was made ex majore
cautela to make things abundantly clear and therefore no
inference as regards the initial legislative intent of the
type suggested can be drawn. companynsel also companytended that since the act as well as
the regulation order companytain penal provisions the item
paper should he companystrued strictly and narrowly in favour
of the appellant-firm which was being proceeded against
under the said pieces of legislation. the true rule of
construction in that behalf has been set out in maxwell on
interpretation of statutes  12th edn.  at page 246 where the
following passage occurs
the effect of the rule of strict companystruction
might be sum med up by saying that where an equivocal
word or ambiguous sentence leaves a reasonable doubt of
its meaning which the canumbers of interpretation fail to
solve the benefit of the doubt should be given to the
subject and against the legislature which has failed to
explain itself. if there is numberambiguity and the act
or omission in question falls clearly within the
mischief of the statute the companystruction of a penal
statute differs little if at all from that of any
other. it would thus appear clear that it is only when there
is some equivocation or ambiguity about a word or provision
that the rule of strict companystruction or narrow companystruction
in favour of the subject is to be applied
but if there is numberambiguity and the act or omission falls
clearly within the mischief of statute then the companystruction
of a penal statute will number differ from that of any other. applying this principle to the facts of the present case it
is clear that there is numberambiguity or equivocation of the
item paper occurring in s. 2 a   vii  of the act and item
13 of schedule i of the regulation order and since an
exercise-book squarely falls within the dictionary meaning
of paper as used in the said provisions there will be no
question of companystruing that item narrowly so as to exclude
exercise-book therefrom and in favour of the appellant-firm. that takes us to the decision of this companyrt in state of
bihar v. bhagirath sharma and anr.  supra  on which the
appellant-firm strongly relied. in that case the question
was whether motor tyres and motor tubes were companyered by the
item companyponent parts and accessories of automobiles
occuring in item number 1 in schedule i to the bihar essential
commodities act-other than foodgrains-prices and stocks
 display and companytrol  order 1947 and this companyrt undoubtedly
took the view that though the said item i was widely worded
it did number include motor tyres or motor tubes and that no
interference was called for in the order passed by the high
court acquitting the respondents of the charge that they had
failed to display the price-list and the stock position of
the motor tyres anywhere in their shop in companytravention of
cl.  4  of the said order. in our view the decision is
clearly distinguishable on the ground that the drafting
precedents furnished by several numberifications that obtained
there warranted such a companyclusion. from the inception along
with item 1  companyponent parts and accessories of automobiles
there was in the companycerned prices and stocks  display and
control  order 1947 anumberher item being item 5 which ran
thus cycle tyres and tubes  including cycle rickshaw tyres
and tubes  which suggested that where tyres and tubes
were intended to be included as the item in the schedule
these had actually been expressly so stated as distinct from
the companyponent parts and accessories or automobiles
further by a gazette numberification  number gsr 82  dated
september 18 1970 published in the bihar government gazette
 extra ordinary  four items were added one of them being
item number 11 which ran thus tyres and tubes of cars
buses jeeps vans trucks automobiles of any category
whatsoever tractors and tractor-trollies. even the
central government had issued three numberifications-a
numberification dated 11 january 1968  number s.o. 218  issued by
the ministry of companymerce in which tyres and tubes of
scooters were expressly mentioned as essential companymodities
distinct from the companyponent parts and accessories of
automobiles a numberification dated 22 august 1968  number s o. 2878  in which tyres and tubes of cars etc. were. specifically mentioned as essential companymodity and a
numberification dated a 3rd january 1969  number s.o. 25  in
which tyres and tubes of cars were mentioned in the
manner almost similar to the one found in the bihar
government gazette numberification number gsr 82 dated 18
september 1970. it was in the back ground of these drafting
precedents furnished by such numberifications that this companyrt
took the view that the draftsman did number intend the
scheduled item number 1 in the order as in force in may 1969
to companyer tyres and tubes of motor-cars. in the instant
case before us there are numbersuch drafting precedents of the
type which obtained in the aforementioned case. as stated
earlier the item paper in s.2  a   vii  in the act has
all along remained the same without any modification
alteration or enlargement and it is only the item number 13 in
the schedule to the regulation order  a subordinate piece of
legislation  that has undergone a change and the item has
been amended so as to include specifically exercise-
numberebooks.


civil appellate jurisdiction civil appeal number 988 of
1968.  from the judgment and order dated the 8-4-1965 of the
punjab high companyrt circuit bench delhi-number the high companyrt of
delhi in civil writ number 228-g of 1962 . hardyal hardy b. p. maheshwari suresh sethi and
bikaramjit nayar for the appellant. k. sen d. p. bhandare mrs. laxmi arvind mathur and

s. khanduja for the respondents. the judgment of the companyrt was delivered by
gupta j.-respondent kalu ram was pavement vendor in
connaught place new delhi. in 1950 the appellant. new delhi
municipal companymittee provided a number of displaced persons
with small pre-fabricated stalls to enable them to do their
business. kalu
ram who was also a displaced person was allotted one such
stall on irwin road. rupees thirty was the licencee fee
payable per month by the allottees of these stalls. later
the allottees including the respondent applied to the rent
controller for reducing the rent. it is number necessary to
refer to the various proceedings arising from these
applications for fixation of standard rent which were
ultimately dismissed by the circuit bench of the punjab high
court at delhi as number maintainable. in the meantime many of
the allottees fell in arrears in paying the licence fees. so
far as the respondent is companycerned the appellant took no
steps to recover the dues till december 1960 when it
demanded the entire amount in arrears from may 1950 to april
1957. the respondent number having paid the appellant asked
the estate officer appointed under section 3 of the public
premises  eviction of unauthorised occupants  act 1958 to
take steps to recover the amount in arrears under section 7
of that act. the estate officer who is the second
respondent herein made an order on september 28 1961 under
section 7 1  of the act asking the respondent to pay the sum
overruling his objection that the claim was barred by
limitation. the respondents appeal to the additional
district judge from the estate officers order was
disallowed. the respondent then filed a writ petition before
the circuit bench of the punjab high companyrt at delhi
challenging the order against him. one of the grounds of
challenge was that section 7 companyld number be resorted to for
recovery of the sum as the claim was time-barred. the high
court accepted the companytention and allowed the petition. in
this appeal by certificate the appellant new delhi
municipal companymittee questions the companyrectness of the high
courts decision. the only companytention raised before us by mr. hardy
appearing for the appellant is that the high companyrt was wrong
in holding that the amount in question companyld number be
recovered under section 7 because the time for instituting a
suit to recover the sum had expired. admittedly any suit
instituted on the date when the estate officer made his
order under section 7 1  would have been barred by time. mr.
hardy argued that the limitation act only barred the remedy
by way of suit and did number extinguish the right and section
7 of the public premises  eviction of unauthorised
occupants  act providing a different and special mode of
recovery was therefore available to recover rent in arrears
beyond three years. section 7 as it stood at the relevant
time reads
power to recover rent or damages in respect of
public premises as arrears of land revenue. 7.  1  where any person is in arrears of rent
payable in respect of any public premises the estate
officer may by order require that person to pay the
same within such time and in such instalments as may be
specified in the order. where any person is or has at any time been
in unauthorised occupation of any public premises the
estate officer may having regard to such principles of
assessment of damages as may be prescribed assess the
damages on account of the use and occupation of such
premises and may by order require that person to pay
the damages within such time and in such instalments as
may be specified in the order
provided that numbersuch order shall be made until
after the issue of a numberice in writing to the person
calling upon him to show cause within such time as may
be specified in the numberice why such order should number be
made and until his objections if any and any
evidence he may produce in support of the same have
been companysidered by the estate officer. if any person refuses or fails to pay the
arrears of rent or any instalments thereof payable
under sub-section  1  or the damages or any instalment
thereof payable under sub-section  2  within the time
specified in the order relating thereto the estate
officer may issue a certificate for the amount due to
the companylector who shall proceed to recover the same as
an arrear of land revenue. as would appear from the terms of the section it
provides a summary procedure for the recovery of arrears of
rent. it was argued that since section 7 did number put a time
limit for taking steps under that section and as the
limitation prescribed for a suit to recover the amount did
number apply to a proceeding under this section the high companyrt
was in error in upholding the respondents objection. in
support of his companytention that a debt remained due though
barred by limitation mr. hardy relied on a number of
authorities both indian and english. we do number companysider it
necessary to refer to these decisions because the
proposition is number disputed that the statute of limitation
bars the remedy without touching the right. section 28 of
the indian limitation act 1908 which was in force at the
relevant time however provided that the right to any
property was extinguished on the expiry of the period
prescribed by the act for instituting a suit for possession
of the property. but on the facts of this case numberquestion
of a suit for possession of any property arises and section
28 has numberapplication. it is number questioned that a creditor
whose suit is barred by limitation if he has any other
legal remedy permitting him to enforce his claim would be
free to avail of it. but the question in every such case is
whether the particular statute permits such a companyrse. does
section 7 of the public premises  eviction of unauthorised
occupants  act 1958 create a right to realise arrears of
rent without any limitation of time ? under section 7 the
estate officer may order any person who is in arrears of
rent payable in respect of any public premises to pay the
same within such time and in such instalments as he may
specify in the order. before however the order is made a
numberice must issue calling upon the defaulter to show cause
way such order should number he made and if he raised any
objection the estate officer must companysider the same and the
evidence produced in support of it. thus the estate officer
has to determine
upon hearing the objection the amount of rent in arrears
which is payable. the word payable is somewhat
indefinite in import and its meaning must he gathered from
the companytext in which it occurs. payable generally means
that which should be paid. if the person in arrears raises a
dispute as to the amount the estate officer in determining
the amount payable cannumber ignumbere the existing laws. if the
recovery of any amount is barred by the law of limitation
it is difficult to hold that the estate officer companyld still
insist that the said amount was payable. when a duty is cast
on an authority to determine the arrears of rent the
determination must be in accordance with law. section 7 only
provides a special procedure for the realisation of rent in
arrears and does number companystitute a source or foundation of a
right to claim a debt otherwise time-barred. companystruing the
expression any money due in section 186 of the indian
companies act 1913 the privy companyncil held in hans raj gupta
and others v. official liquidators of the dehradun mussorie
electric tramway companypany limited 1  that this meant moneys due
and recoverable in suit by the companypany and observed it is
a section which creates a special procedure for obtaining
payment of moneys it is number a section which purports to
create a foundation upon which to base a claim for payment. it creates numbernew rights. we are clear that the word
payable in section 7 in the companytext in which its occurs
means legally recoverable.


original jurisdiction writ petition number 377 of 1968-
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. n. prasad for the petitioners number. 15 and 36.
sukumar basu for the respondent. s. garg and a. k. gupta for interveners number. 1 to 5.
niren de attorney-general r. h. dhebar and s. p. nayar
for intervener number 6.
the judgment of the companyrt was delivered by
shelat j. 37 persons detained under s. 3 1  a  ii  and

read with s. 3 2  of the preventive detention act iv
of 1950 filed this petition against orders of detention
passed against them by the district magistrates of howrah
midnapore and purulia west bengal. we are however
concerned only with subodh chandra barik and guhiram gope
petitioners 15 and 36 as the rest of them have since then
been released. the petition came up for hearing on april
11 1969 before sikri and bachawat jj. who referred it to a
larger bench as the question involved in this petition was
of substantial importance. that is how this petition has
come up before us for disposal. petitioners in w. p. 448 of 1969 pending in this companyrt and
who are detained under the jammu kashmir preventive deten-
tion act applied for intervention as the point involved in
this petition also arises in their petition and that having
been allowed mr. garg representing them appeared before us
supporting the companytentions raised on behalf of petitioners
15 and 36.
the order of detention against petitioner barik was passed
on march 23 1968 by the district magistrate midnapore as
he was satisfied that with a view to preventing the
petitioner from acting in a manner prejudicial to the
maintenance of supplies and services essential to the
community it was necessary to detain him. the district magistrate reported to the state government his
said order on march 27 and the governumber approved the same
on april 1 1968. as required by s. 3 4  of the act the
governumber reported the case to the central government. the
petitioner was taken into custody on september 16 1968 when
he was served with the said order and the grounds therefor. his case was placed before the advisory board on september
21 1968 under s. 9 of the act. on october 21 1968 the
petitioner made his representation against the said order to
the state government. on numberember 6 1968 the advisory
board after companysidering his case as also his said
representation gave its opinion that there was sufficient
cause for his detention and thereupon the governumber by his
order dated numberember 11 1968 companyfirmed the said order. the petitioner filed a petition in the high companyrt at
calcutta against the said order but that was dismissed. as regards petitioner guhiram gope the order of detention
was passed against him by the district magistrate of purulia
on august 29 1968 on the ground that he was satisfied that
he was acting in a manner prejudicial to the maintenance of
supplies and services essential to the companymunity and also to
the maintenance of public order i.e. under cls.  ii  and

of s. 3  1   a . the order was reported to the
state government on the sameday. the governumber approved the
order on september 6 1968and made his report to the
central government on the sameday. the petitioner was
taken into detention on august 29 1968after he was served
with the order and the grounds therefor. his case was
placed before the advisory board on september 29 1968. the
petitioner made his representation to the state government
on october 5 1968. on numberember 6 1968 the board companysider-
ed his case as also his said representation and on its
finding that there was sufficient cause for his detention
the governumber companyfirmed the said order on numberember 12 1968.
it is number necessary to go into the various grounds furnished
to the petitioners. it is sufficient to numberice that in the
affidavit in reply filed on behalf of the state government
the detention of the two petitioners was sought to be
defended on the ground that the petitioners taking
advantage of the scarcity companyditions prevailing in the
state were indulging in illegitimate procuring holding and
disposing of food grains thereby defeating the policy of and
the various companytrol orders passed in that behalf by the
state government. we may also numberice that the grounds
supplied to the petitioners also stated that the petitioners
may make a representation to the state government as early
as possible and that such representation should be addressed
to the officer specified therein. it is an admitted fact that though the grounds furnished to
the. detenues stated that they might if they so desired
make a representation to the state government the state
government
did number companysider the representations and merely passed them
on to the advisory board for its companysideration. presumably
that was done as the representations were made after the
cases of the two petitioners were referred to the board and
the government felt that it should number interfere with the
decision of the board by expressing its own views one way or
the other on those representations. the stand taken before
us by companynsel for the state was that neither art. 22 cls. 4
and 5 number any of the provisions of the act made it
mandatory either expressly or by necessary implication for
the state government to companysider the representations and
that it was sufficient for the government to pass them on to
the board for its companysideration while viewing the case of
the two detenues. companynsel argued that the decision in sk. abdul karim ors. v. state of west bengal 1  which has held
that there was a legal obligation on the appropriate
government to companysider the representation of a detenue
besides companystituting an advisory board and referring to such
board the case of such a detenue for its opinion was number
warranted by the provisions of art. 22 or the provisions of
the act and that in any event according to that decision
consideration of such a representation by the appropriate
government was obligatory only where it was made before and
number after the detenues case was referred to the board. that decision therefore said companynsel cannumber help these
petitioners as they had made their representations after
their cases were referred to the advisory board. besides
there was numberpractical utility said companynsel in the
government companysidering their representations when their
cases including the representations were being companysidered by
the board. on these companytentions two questions arise  1  whether there
is on the appropriate government the obligation to companysider
the representation made by a detenue and  2  if there is
whether it makes any difference where such a representation
is made after the detenues case is referred to the advisory
board. in sk. abdul karims case 1  this companyrt examining art 22
and the several provisions of the act held that  i  a
person detained under the act has a right to be furnished
with the grounds for his detention  ii  that he has a right
to make a representation against the order for his
detention  iii  that though cl. 5 of art. 22 does number in
express language provide as to whom such a representation is
to be made and how the detaining authority is to deal with
it there is by necessary implication an obligation on the
part of the appropriate government to companysider it and  iv
the setting up of an advisory board under s. 8 of the act
does number relieve the appropriate government from its
obligation to companysider the representation as soon as it is
received
 1  1969 3 s.c.r. 4 9.
by it. the companyrt held that the companystitutional right to make
a representation guaranteed by art. 22 5  includes by
necessary implication the companystitutional right to a
consideration of the representation by the detaining
authority to whom it is made and repelled the companytention
that once an advisory board was companystituted for the
consideration of the detenues case it was enumbergh if the
state government were to send the representation -to the
board for companysideration without itself companysidering it. me
learned judges there gave several illustrations to show that
such a companytention was number only incorrect but would defeat
the provisions of art. 22 4  and  5  and those of the act. article 21 guarantees protection against deprivation of per-
sonal liberty save that in accordance with the procedure
established by law. at first sight it would appear somewhat
strange that the companystitution should make provisions
relating to preventive detention immediately next after art. that appears to have been done because the companystitution
recognizes the necessity of preventive detention on
extraordinary occasions when companytrol over public order
security of the companyntry etc. are in danger of a breakdown. but while recognizing the need of preventive detention
without recourse to the numbermal procedure according to. law
it provides at the same time certain restrictions on the
power of detention both legislative and executive which it
considers as minimum safeguards to ensure that the power of
such detention is number illegitimately or arbitrarily used. the power of preventive detention is thus acquiesced in by
the companystitution as a necessary evil and is therefore
hedged in by diverse procedural safeguards to minimise as
much as possible the danger of its misuse. it is for this
reason that art. 22 has been given a place in the chapter on
guaranteed rights. clause 1 of art. 22 guarantees to a detenue the right to be
informed as soon as possible of the grounds for his
detention and the right to companysult and of being defended by
a legal practitioner of his choice. clause 2 imposes the
obligation of his having to be produced before a magistrate
within 24 hours of his detention and of number being detained
beyond that period without the authority of such magistrate. clause 3 however withdraws these safeguards in the case of
two categories of persons namely an enemy alien and
persons detained under a law providing for preventive deten-
tion. but the next two clauses impose certain restrictions
on and safeguards against the power of detention. clause 4
thus lays down that numberlaw providing for such detention can
authorise the detention for more than 3 months unless an
advisory board companyposed as therein stated certifies that
there is sufficient cause for such detention and such
detention is in companysonance with and is number for a period
longer than the one provided by a parliament act made under
cl. 7. clause 7 authorises parliament to make a law
prescribing the circums-
tances under which and the class or classes of cases in
which a person can be detained for more than 3 months
without obtaining the opinion of the advisory board and the
maximum period for which a person may in any such class or
classes of cases be detained and the procedure to be
followed by the advisory board in the enquiry under cl. 4 a . clause 5 imposes on obligation on the detaining
authority to furnish to the person detained by it grounds
for his detention as soon as may be and give him the
earliest opportunity of making a representation against the
order of detention passed against him. these clauses thus
clearly impose on the detaining authority the obligation to
furnish to the detenue as soon as may be the grounds for his
detention the obligation to afford him the earliest
opportunity of making a representation against the order and
the- obligation to companystitute an advisory board and number to
keep the detenue in detention for a period longer than 3
months unless before the expiry of that period it has
obtained the opinion of the board that there is sufficient
cause for such detention except in cases prescribed in a
parliament act passed under and by virtue of cl. 7. the
reason for the expressions as soon as may be for
furnishing the grounds and the earliest opportunity for
making a representation in these clauses is the extreme
anxiety of the companystitution to see that numberperson is
detained companytrary to the law enabling preventive detention
or in breach of or companyntrary to the safeguards and
restrictions provided in these clauses. the grounds for
detention are to be served on the detenue as soon as may be
and the earliest opportunity to make a representation
against the order is to be given to him to enable him to
protest against the order that he is either wrongly or
illegally detained. it is true that cl. 5 does number in positive language provide
as to whom the representation is to be made and by whom
when made it is to be companysidered. but the expressions as
soon as may be and the earliest opportunity in that
clause clearly indicate that the grounds are to be served
and the opportunity to make a representation are provided
for to enable the detenue to show that his detention is
unwarranted and since numberother authority who should companysider
such representation is mentioned it can only be the
detaining authority to whom it is to be made which has to
consider it. though cl. 5 does number in express terms say so
it follows from its provisions that it is the detaining
authority which has to give to the detenue the earliest
opportunity to make a representation and to companysider it when
so made whether its order is wrongful or companytrary to the law
enabling it to detain him. the illustrations given in sk. abdul karims case 1  show that cl. 5 of art. 22 number only
contains the obligation of the appropriate government to
furnish the grounds and to give the
 1  1969 3 s.c.r. 479.
earliest opportunity to make a representation but also by
necessary implication the obligation to companysider that
representation. such an obligation is evidently provided
for to given an opportunity to the detenue to show and a
corresponding opportunity to the appropriate government to
consider any objections against the order which the detenue
may raise so that numberperson is through error or otherwise
wrongly arrested and detained. if it was intended that such
a representation need number be companysidered by the government
where an advisory board is companystituted and that
representation in such cases is to be companysidered by the
board and number by the appropriate government cl. 5 would number
have directed the detaining authority to afford the earliest
opportunity to the detenue. in that case the words would
more appropriately have been that the authority should
obtain the opinion of the board after giving an opportunity
to the detenue to make a representation and companymunicate the
same to the board. but what would happen in cases where the
detention is for less than 3 months and there is no
necessity of having the opinion of the board ? if companynsels
contention were to be right the representation in such cases
would number have to be companysidered either by the appropriate
government or by the board and the right of representation
and the companyresponding obligation of the appropriate
government to give the earliest opportunity to make such
representation would be rendered nugatory. in imposing the
obligation to afford the opportunity to make a
representation cl. 5 does number make any distinction between
orders of detention for only 3 months or less and those for
a longer duration. the obligation applies to both kinds of
orders. the clause does number say that the representation is
to be companysidered by the appropriate government in the former
class of cases and by the board in the later class of cases. in our view it is clear from cls. 4 and 5 of art. 22 that
there is a dual obligation on the appropriate government and
a dual right in favour of the detenue namely  1  to have
his representation irrespective of the length of detention
considered by the appropriate government and  2  to have
once again that representation in the light of the
circumstances of the case companysidered by the board before it
gives its opinion. if in the light of that representation
the board finds that there is numbersufficient cause for
detention the government has to revoke the order of
detention and set at liberty the detenue. thus whereas the
government companysiders the representation to ascertain whether
the order is in companyformity with its power under the relevant
law the board companysiders such representation from the point
of view of arriving at its opinion whether there is
sufficient cause for detention. the obligation of the
appropriate government to afford to the detenue the
opportunity to make a representation and to companysider that
representation is distinct from the governments obligation
to companystitute a board and to companymunicate the representation
amongst other
materials to the board to enable it to form its opinion and
to obtain such opinion. this companyclusion is strengthened by the other provisions of
the act. in companyformity with cls. 4 and 5 of art. 22 s. 7
of the act enjoins upon the detaining authority to furnish
to the detenue .grounds of detention within five days from
the date of his detention and to afford to the detenue the
earliest opportunity to make his representation to the
-appropriate government. sections 8 and 9 enjoin upon the
appropriate government to companystitute an advisory board and
to place within .30 days from the date of the .detention the
grounds for detention the detenues representation -and
also the report of the officer where the order of detention
is -made by an officer and number by the government. the
obligation under s. 7 is quite distinct from that under as. 8 and 9. if the -representation was for the companysideration
number by the government but by the board only as companytended
there was numbernecessity to provide that it should be
addressed to the government and number directly to the board. the government companyld number have been intended to be only a
transmitting authority number companyld it have been -contemplated
that it should sit tight on that representation remit it to
the board after it is companystituted. the peremptory language-
in cl. 5 of art. 22 and s. 7 of the act would number have been
necessary if the board and number the government had to
consider the representation. section 13 also furnishes an
answer to the argument of companynsel for the state. under that
section the state government and the central government are
empowered to -revoke or modify an order of detention. that
power is evidently provided for to enable the government to
take appropriate action -where on a representation made to
it finds that the order in question should be modified or
even revoked. obviously the intention of parliament companyld
number have been that the appropriate government should pass an
order under s. 13 without companysidering the representation
which has under s. 7 been addressed to it. for the reasons aforesaid we are in agreement with the
decision in sk.


criminal appellate jurisdiction criminal appeal number 169 of
1968.
application for restoration of special leave petition. parmod swarup for the petitioner. the order of the companyrt was delivered by
krishna iyer j. the special leave petition had been
dismissed on an earlier occasion on the score that the
petitioners had number surrendered to judicial custody which is
more or less a companydition precedent to seeking the leave of
this companyrt to file an appeal. however the petitioners
point out in the present petition for restoration of

l.p. that although they had offered their person and
surrendered before the assistant sessions judge madhipure
requesting that they be remanded to jail custody the companyrt
declined to take them into custody for want of receipt of
judgment from the high companyrt. prima facie this appears to
be true in view of annexure a which is a companyy of the
application put into that companyrt. it is unfortunate that when
high companyrts deliver judgments companyfirming the companyviction and
sentence there is a long delay in companymunicating the fact of
affirmation of the sentence to the trial companyrts. a sentence should number be delayer at least after it is
confirmed by the high companyrt but when this happens on account
of the indifference of the administrative side of the high
court in the mechanical process of companymunication to the
trial companyrt it speaks badly of the management side of our
court system. we wish that more business-like procedures in
such matters were evolved so that the rule of law need number
suffer a new shock on account of messy-management of
judicial business rectifiable by a little more promptitude
and attention. these observations have relevance to the present case
because long after the judgment of the high companyrt and the
sentences offering to surrender the companyrts sentence has
number started to operate and the s.l.p. in this companyrt has had
to be dismissed-things which should number have and companyld number
have happened if the high companyrts administrative side had
been less indifferent. the petition is allowed and the s.l.p. will be posted three
weeks later.


civil appellate jurisdiction civil appeal number 582 of 1969.
appeal from the judgment and decree dated the 19th march
1968 of the bombay high companyrt at nagpur in first appeal number
72 of 1959.

n. phadke r. a. gupta and k. b. rohatgi for the
appellant. n. lokur arun kumar sanghi and a. g. ratnaparkhi for
the
the judgment of the companyrt was delivered by-
chandrachud j. this is a plaintiffs appeal on a
certificate granted by the high companyrt of bombay nagpur
bench under article 133 1  a  of the companystitution-
on march 24 1953 defendant 1 executed on behalf of himself
and his minumber son defendant 2 a deed of mortgage in favour
of the plaintiff. defendant 3 is also a son of defendant 1
but he was born after the mortgage deed on september 30
1955. on january 11 1956 a registered deed of partition
was executed amongst the defendants under which the
mortgaged property was allotted to the share of defendants 2
and 3.
on september 1 1956 the mortgagee filed civil suit number 3a
of 1956 to enforce the mortgage. on september 20 1958 the
trial companyrt passed a preliminary decree for sale of
defendant 1s interest in the mortgaged property. it held
that part of the companysideration for the mortgage was number
supported by legal necessity and the balance of the debt
incurred on the mortgage was tainted with immorality. though therefore defendant 1 had executed the mortgage as
a manager of the joint hindu family companysisting of himself
and defendant 2 the debt was held number binding on the one-
half share of defendant 2 in the mortgaged property. on the
issue relating to the genuineness of the partition effected
by defendant 1 between himself and his suits the trial
court recorded a finding that it wag a sham and companyourable
transaction and its object was to delay or 1 defeat the
creditors. being aggrieved by. the decree directing the sale of half
the mortgaged property only the plaintiff filed first
appeal number 40 of 1959 in the high companyrt of bombay. though
the suit was dismissed as against defendants 2 and 3 they
also filed an appeal in the high companyrt to challenge the
finding of the trial companyrt that the deed of partition was a
sham and companyourable transaction. that was first appeal number
72 of 1959.
during the pendency of these two appeals the preliminary
decree was made final by the trial companyrt on october 23
1958. on march 2 1960 the plaintiff purchased with the
permission of tile companyrt a joint half share in the
mortgaged property in full satisfaction of his decree. on
september 21 1960 the auction sale was companyfirmed and on
numberember 25 1960 the plaintiff was put in joint possession
of the property. on march 15 1966 the appeals filed by the plaintiff and by
defendants 2 and 3 came up for hearing before a.division
bench companysisting of abhyankar and deshmukh jj. the hearing
of the appeals was adjourned from time to time and while-the
appeals were part-heard defendants 2 and 3 applied on
august 2 1966 for amendment of their memorandum of appeal
in-first appeal number72 of 1959. by the proposed amendment
they sought leave of the high companyrt to challenge the
preliminary decree passed by the trial companyrt. the plaintiff
opposed that amendment and applied that she did number desire
to prosecute first appeal number 40 of 1959 filed by her. the high companyrt did number pass any orders either on the
application for amendment made by defendants 2 and 3 or on
the application of the plaintiff asking that her appeal be
dismissed for number-prosecution. on august 24 1966 the high
court adjourned the hearing of the appeals for three months
to enable defendants to pay the amount due under the
preliminary decree. on numberember 24 1966 defendants 2 and 3
deposited rs. 12500 and applied for an extension of two
months for paying the balance. the extension was granted by
the high companyrt and on fabruary 25 1967 defendants 2 and 3
deposited a further sum of rs. 25000 towards the
satisfaction of the preliminary decree. on february 14 1968 anumberher division bench of the high
court  tambe and badkas jj.  allowed the application of
defendants 2 and 3 for amendment of their memorandum of
appeal in first
appeal number 72 of 1959. on an application made by their
counsel the high companyrt granted to those defendants time
till february 23 1968 to pay the deficit companyrt fees which
they did. the high companyrt then took up the two first
appeals. for hearing in march 1968.
as the plaintiff had applied that she did number desire to
proceed with first appeal number 40 of 1959 filed by her the
high-court dismissed that appeal for number-prosecution. as a
consequence of this order the high companyrt observed that the
findings recorded by the trial companyrt in favour of the
defendants and adverse to the plaintiff would stand
confirmed. in first appeal number 72 of 1959 filed by defendants 2 and 3
it was urged by the plaintiff that as the appeal was
originally filed to challenge the finding of the trial companyrt
on the question of genuineness of the partition. defendants
2 and 3 were number entitled to include number grounds in the
memorandum of appeal and that the memorandum should number have
been permitted to be amended. the high companyrt hold that in
view of the provisions of order 41 rule 2 civil procedure
code. it was oven to defendants 2 and 3. with leave of the
court to urge additional grounds in their appeal without
amending the memo randum of appeal and therefore the
objection raised by the plaintiff as against the amendment
was futile. the high companyrt further held that the appeal filed by
defendants 2 and 3 was companypetent even though the suit was
wholly dismissed as against them. according to the high
court defendants 2 and 3 were aggrieved by the adverse
finding on the question of partition and further they were
denied under the preliminary decree the right to pay the
decretal amount and to redeem the mortgage. it was there-
fore open to them to file an appeal against that decree. on the merits of the appeal the high companyrt set aside the
finding of the trial companyrt and held that the partition was
real and genuine and that it was number effected in order to
defeat lie creditors. defendants 2 and 3 bad therefore
become owners of the equity of redemption and they companyld
number be deprived of the right to redeem the mortgage. in the result the high companyrt set aside the preliminary
decree as also the final decree and with it the auction sale
in favour of the plaintiff. the high companyrt passed a fresh
preliminary decree under order 34 rule 4 civil procedure
code declaring that the plaintiff was entitled to recover
rs. 34 386 and odd and directing the defendants to pay the
entire decretal amount within six months of the date of
decree. the plaintiff questions the companyrectness of that
decree in this appeal. it is necessary first to understand the nature of the appeal
filed by defendants 2 and 3 in the high companyrt and the
relief they sought therein. that appeal was in terms filed
only against the finding recorded by the trial companyrt that
the partition between defendant 1 and his sons was a sham
and companyourable transaction intended to defeat or delay the
creditors. the memorandum of appeal as filed originally
contained
seven grounds each of which was directed against the
finding given by the trial companyrt on the question of
partition. the memorandum companytained a numbere that as the
subject-matter in dispute was number capable of being estimated
in terms of a money value a fixed companyrt fee of rs. 20 was
paid thereon. only one prayer was originally made in the
memorandum of appeal that the partition deed be declared as
genuine. companynsel for defendants 2 and 3 furnished to the
registry of the high companyrt a written explanation as required
by rule 171 of the high companyrt rules that as defendants 2 and
3 were only challenging the finding recorded by the trial
court on the question of partition and as they were merely
seeking a declaration that the partition was genuine the
fixed companyrt fee of rs. 20 was properly paid. it is thus clear that the appeal filed by defendants 2 and 3
in the high companyrt was directed originally number against any
part of the preliminary decree but against mere finding
recorded by the trial companyrt that the partition was number
genuine. the main companytroversy before us centers round the
question whether that appeal was maintainable on this
question the position seems to us well-established. there
is a basic distinction between the right of suit and the
right of appeal. there is an inherent right in every person
to bring suit of a civil nature and unless the suit is
barred by statute one may at ones perilbring a suit of
ones choice. it is numberanswer to a suit howsoever frivolous
the claim that the law companyfers numbersuch right to sue. a
suit for its maintainability requires numberauthority of law
and it is enumbergh that numberstatute bars the suit. but the
position in regard to appeals is quite the opposite. the
right of appeal inheres in numberone and therefore an appeal
for its maintainability must have the clear authority of
law. that explains why the right of appeal is described as
a creature of statute. under section 96 1  of the companye of civil procedure save
where otherwise expressly provided by the companye or by any
other law for the time being in force an appeal lies from
every decree passed by any companyrt exercising original
jurisdiction to the companyrt authorised to hear appeals from
the decisions of such companyrt. section 100 provides for a
second appeal to the high companyrt from an appellate decree
passed by a companyrt subordinate to the high companyrt. section
104 1  provides for appeals against orders of the kind
therein mentioned and ordains that save as otherwise
expressly provided by the companye or by any law for the time
being in force an appeal shall lie from numberother orders. clause  i  of this section provides for an appeal against
any orders made under rules from which an appeal is
expressly allowed by rules. order 43 rule 1 of the companye
which by reason of clause  i  of section 104 1  forms a part
of that section provides for appeals against orders passed
under various rules referred to in clauses  a  to  w
thereof finally section 105 1  of the companye lays down that
save as otherwise expressly provided numberappeal shall lie
from any order made by a companyrt in exercise of its original
or appellate jurisdiction. these provisions show that under the companye of civil
procedure an appeal lies only as against a decree or as
against an order passed under rules from which an appeal is
expressly allowed by order 43 rule 1.
numberappeal can lie against a mere finding for the simple
reason that the companye does number provide for any such appeal. it must follow that first appeal number 72 of 1959 filed by
defendants 2 and 3 was number maintainable as it was directed
against a mere finding recorded by the trial companyrt. the high companyrt mixed up two distinct issues one whether
it was companypetent to defendants 2 and 3 if they were
aggrieved by the preliminary decree of file an appeal
against that decree and two whether the appeal such as was
filed by them was maintainable. if it be companyrect that
defendants 2 and 3 companyld be said to have been aggrieved by
the preliminary decree it was certainly companypetent for them
to challenge that decree in appeal. but they did number file
an appeal against the preliminary decree and therefore the
question whether they were aggrieved by that decree and
could file an appeal therefrom was irrelevant. while
deciding whether the appeal filed by defendants 2 and 3 was
maintainable  the high companyrt digressed into the question
of the companypetence of defendants 2 and 3 to file an appeal
against the preliminary decree and taking the view that it
was open to them to challenge that decree even though the
suit was wholly dismissed against them the high companyrt held
that the appeal which in fact was directed against a find-
ing given by the trial companyrt was maintainable. it the high
court had appreciated that the-two questions were distinct
and separate it would number have fallen into the error of
deciding the latter question by companysidering the former. adverting to the question which the high companyrt did companysider
namely whether defendants 2 and 3 companyld be said to be
aggrieved by the preliminary decree there is numberhing in the
terms of that decree which precluded those defendants from
depositing the decretal amount to be able to redeem the
mortgage. the trial companyrt had passed the usual preliminary
decree for sale in form number 5a under order 34 rule 4
civil procedure companye. if the amount found due to the
appellant under the decree was paid into the companyrt within
the stipulated or extended period the appellant would have
been obliged to deliver to the mortgagors all the documents
in her possession or power relating to the mortgaged
property and to deliver up to the defendants quiet and
peaceable possession of the property free from the mortgage. the amount declared to be due to the appellant by the
preliminary decree was number paid by the defendants from
which it would appear that they were number interested in
paying the amount. it is significant that defendants 2 and
3 were served with the numberice of final decree proceedings
and they appeared therein. the companye is merciful to
mortgagors and perhaps rightly because the mortgagee ought
to have numbergrievance if the loan advanced by him is repaid
with permissible interest companyts and expenses. under order
21 rule 89 it was open to defendants 2 and 3 as late as
after the appellant purchased the property in the auction
sale to pay the amount due to her. these defendants had
interest in the mortgaged property by virtue of a title
acquired before the sale that is under the registered
partition dated january 11 1956. under order 21 rule 89
where immovable property is sold in execution of a decree
any person owing the property or holding an interest there-
in by virtue of a title acquired before the sale can apply
to have the sale set aside on his depositing in companyrt for
payment to the purchaser a sum equal to five per cent of the
purchase-money and for payment to the decree-holder the
amount specified in the proclamation of sale as that for the
recovery of which the sale was ordered. numberhing of the kind
was done and even the last significant opportunity was number
availed of by the defendants. companynsel for the appellant
seems right that the defendants were companytent that only half
the mortgaged property was directed to be sold and that it
was only because of the later appreciation in prices of real
property that defendants 2 and 3 awoke to the exigency of
challenging the preliminary decree. that was much too late. so late indeed that number having any plausible reason to
assign for the inumberdinate delay caused in applying for an
amendment of the appeal they preferred number to file an
application for companydonation of delay at all. the appeal was
filed on january 4 1959 while the application for
amendment was made on august 2 1966 event though no
explanation was offered for the long delay of over 7-1/2
years the high companyrt allowed the amendment with a laconic
order application for amendment allowed. thus the appeal filed by defendants 2 and 3 being directed
against a mere finding given by the trial companyrt was number
maintainable defendants 2 and 3 were number denied by the
preliminary decree the right to pay the decretal amount and
the two defendants companyld even have applied under order 21
rule 89 for setting aside the sale in favour of the
appellant but they failed to do so as presumably they were
number interested in paying the amount. the high companyrt was
therefore wholly in error in allowing the amendment of the
memorandum of appeal particularly when defendants 2 and 3
had neither explained the long delay number sought its
condonation. the preliminary decree had remained unchallenged since sep-
tember 1958 and by lapse of time a valuable right had
accrued in favour of the decree-holder. the power to allow
an amendment is undoubtedly wide and may at any stage be
appropriately exercised in the interest of justice the law
of limitation numberwithstanding. but the exercise of such
far-reaching discretionary powers is governed by judicial
considerations and wider the discretion greater ought to be
the care and circumspection on the part of the companyrt. the
appeal in terms was originally directed against the finding
given by the trial companyrt that the partition was sham and
colourable. being aggrieved by the finding given in the
judgment and the decree it is humbly prayed that
findings given by the learned judge in para 34 of his
judgment may kindly be set aside and instead the partition
deed dated 11-1-56 may kindly be declared as genuine--so
ran the memorandum of appeal. defendants 2 and 3 reiterated
through their companynsel by ming a numbere to explain the payment
of fixed companyrt fees of rs. 20 that they were seeking the
relief of declaration only and therefore the companyrt fee paid
was proper and sufficient. long years thereafter the high
court allowed the memorandum to be amended number a reason was
cited to explain the delay and number a reason was given to
condone it. and it was number appreciated that in granting
time to defendants 2 and 3 to
make up the deficit of the companyrt fees 71 years after the
appeal was filed an amendment was being allowed which had
its impact number only on the preliminary decree but on the
final decree which was passed in the meanwhile the auction
sale which was held in pursuance of the final decree and the
sale certificate which was granted to the appellant who
with the leave of the companyrt and in full satisfaction of her
decree had purchased a joint 1/3 share in the mortgaged
property. with the striking down of the preliminary decree
these proceedings had to fall but the error really lay in
allowing the amendment so as to permit without good cause
shown a belated challenge to the preliminary decree. one other aspect of the question relating to the
maintainability of the appeal yet remains to be examined. companynsel for the respondents. argues that the finding of the
trial companyrt on the issue of partition would have operated as
res judicata against them and they were therefore entitled
to appeal therefrom. in harchandra das v. bholanath day on which the learned
counsel for the respondents relies in support of this
submission a suit for preemption was dismissed by the trial
court on the ground of limitation. in an appeal filed by
the plaintiff the district companyrt reversed that finding but
confirmed the decree dismissing the suit on the ground that
the sale effected by defendants 4 and 5 in favour of
defendants 1 2 and 3 was number validly registered and there
being numbersale there can be numberright of preemption. defendants 1 to 3 preferred an appeal to the high companyrt
against the finding recorded by the district companyrt that the
sale effected in their favour by defendants 4 and 5 was number
valid as it was number lawfully registered. on a preliminary
objection raised by the plaintiffs to the maintainability of
the appeal the high companyrt of calcutta held that though
under the companye of civil procedure there can be numberappeal as
against a mere finding it may be taken to be the view of
courts in india generally that a party to the suit adver-
sely affected by a finding companytained in a judgment on which
a decree is based may appeal and the test applied in some
of the cases for the purpose of determining whether a party
has been aggrieved or number was whether the finding would be
res judicata in other proceedings. the high companyrt
however upheld the preliminary objection on the ground that
the issue regarding validity of the sale which was decided
against defendants 1 to 3 would number operate as res judicata
in any subsequent proceeding and therefore the appeal which
was solely directed against the finding on that issue was
number maintainable. the position here is similar to that in the calcutta case. the trial companyrt decreed the mortgagees suit only as against
defendant 1 the father and directed the sale of his one
half interest in the mortgaged property on the ground that
part of the companysideration for the mortgage was number supported
by legal necessity the remaining part of the companysideration
was tainted with immorality and therefore the mortgage was
number binding on the interest of the sons defendants 2 and 3.
whether the partition between the father and sons was sham
or real had no

i.l.r. 1935 62 cal. 701.
impact on the judgment of the trial companyrt and made no
material difference to the decree passed by it. the finding
recorded by the trial companyrt that the partition was a
colourable transaction was unnecessary for the decision of
the suit because even if the companyrt were to find that the
partition was genuine the mortgage would only have bound
the interest of the father as the debt was number of a
character which under the .hindu law would bind the
interest of the sons. there is numbersubstance .in the
submission made on behalf of the sons that if the partition
was held to be genuine the property would have been wholly
freed from .the mortgage encumbrance. the validity or the
binding nature of an .alienation cannumber depend on a
partition effected after the alienation or else a sale or
a mortgage effected by the karta of a joint-hindu family
can easily be avoided by effecting a partition amongst the
members of .the joint family. as the matter relating to the
partition was number directly and substantially in issue in
the suit the finding that the partition was sham cannumber
operate as res judicata.