PETITIONER: ROMESH THAPPAR Vs. RESPONDENT: THE STATE OF MADRAS DATE OF JUDGMENT: 26/05/1950 BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID KANIA, <NAME>, <NAME>, <NAME>, <NAME>, B.K. CITATION: 1950 AIR 124 1950 SCR 594 CITATOR INFO : F 1950 SC 129 (26) R 1951 SC 270 (4) E 1951 SC 318 (25) D 1952 SC 75 (5,16) E 1952 SC 329 (3,4,5) R 1953 SC 252 (31) RF 1953 SC 384 (5) RF 1957 SC 620 (3,4,5,7) RF 1957 SC 628 (12,16,20,21) E&D 1957 SC 896 (14) RF 1958 SC 578 (129) F 1959 SC 395 (13,40) R 1959 SC 725 (8) R 1960 SC 633 (9,16) RF 1961 SC1457 (8) RF 1962 SC 171 (23) R 1962 SC 305 (29) R 1962 SC 955 (21) R 1962 SC1621 (78,108,110,132) R 1963 SC 996 (2,5) MV 1966 SC 740 (48,69) RF 1967 SC1110 (16) RF 1967 SC1643 (165,227) D 1969 SC 903 (23) D 1970 SC1923 (12,13) F 1971 SC2486 (8,13,14) R 1973 SC 106 (16) RF 1973 SC1461 (1705) RF 1974 SC1389 (247) RF 1977 SC 908 (23) R 1978 SC 597 (77) RF 1980 SC 494 (9) RF 1986 SC 515 (24,33,34) R 1986 SC 872 (74) RF 1989 SC 190 (11) ACT: Constitution of India, Art. 19 , cls. (1) (a) and (2), 32 Application under Art. 32-- Preliminary objection--Fundamen- tal right of freedom of speech and expression--Law imposing restrictions for securing public order and maintenance of public safety--Validity-Severability of Act--Madras Mainte- nance of Public Order Act (XXIII of 1949), s. 9 (1-A)--Validity. HEADNOTE: Held, by <ORG> (i) (overruling a preliminary objection) --Under the Constitution <ORG> is constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights, although such applications are made to the <ORG> in the first in- stance without resort to a High <ORG> having concurrent jurisdiction in the matter. <NAME> v. <NAME> (205 U.S. 179) and <NAME> v. <NAME> (294 U.S. 103) distinguished. (ii) Freedom of speech and expression includes freedom propagation of ideas and that freedom is ensured by the freedom of circulation. Ex parte <NAME> (96 U.S. 727) and <NAME> v. City of <NAME> (303 U.S. 444) referred to. Held per <NAME>, <NAME>, <NAME>, <NAME> and <NAME> <NAME> dissenting): (i) Apart from libel, slander etc. unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the <ORG> or the over- throw of it, such law cannot fall within the reservation under cl. (2) of art. 19 of the Constitution, although the restrictions which it seeks to impose may have been con- ceived generally in the interests of public order. Section 9 (1-A) of the Madras Maintenance of Public Order Act, XXXIII of 1949, which authorises impositions of restrictions for the wider purpose of securing public safety or the mainte- nance of public order falls outside the scope of authorised restrictions under cl. (2) and is therefore void and uncon- stitutional; (ii) Where a law purports to authorise the imposition of restrictions on a fundamental right in lan- guage wide enough to cover restrictions both within and without the limits of constitutionally permissible legisla- tive action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibilitY of its being applied for purposes not sanc- tioned by the Constitution cannot be ruled out 595 must be held to be wholly unconstitutional and void. Section 9 (1-A) is therefore wholly unconstitutional and void. Per FAZL <NAME>--Restrictions which s. 9 (1-A) autho- rised are within the provisions of cl. (2) of art. 19 of the Constitution and s. 9 (1-A)is not therefore unconstitutional or void.(1) <CITATION>  S.C.R. 605 referred to. JUDGMENT:

ORIGINAL JURISDICTION: Petition No. XVI of 1950. Appli- cation under article 32 of the Constitution for a writ of prohibition and certiorari. The facts are set out in the judgment.

<NAME>, for the petitioner.

<NAME>, Advocate-General of <ORG>, (<NAME>, with him) for the opposite party.

1950. May 26. The Judgment of <NAME>, <NAME>, <NAME> and <NAME> was delivered by <NAME> <NAME> delivered a separate judgment. <NAME> petitioner is the printer, publisher and editor of a recently started weekly journal in English called <ORG> printed and published in Bombay. <ORG>, the respondents herein, in exer- cise of their powers under section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 (hereinafter referred to as the impugned Act) purported to issue an order No. MS. 1333 dated 1st March, 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State. The order was published in <ORG> and the notification ran as follows :--

"In exercise of the powers conferred by section 9 (I-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949) His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in <ORG> the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled <ORG> an English weekly published at Bombay."

The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of See the headnote to <CITATION> , p. 605 infra.

speech and expression conferred on him by article 19 (1) (a) of the Constitution and he challenges the validity of section 9 (1-A) of the impugned Act as being void under article 13 (1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate-General of Madras appearing on be half of the respondents raised a preliminary objection, not indeed to the jurisdiction of this <ORG> to entertain the application under article 32 , but to the petitioner resort- ing to this <ORG> directly for such relief in the first instance. He contended that, as a matter of orderly proce- dure, the petitioner should first resort to <ORG> at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Crimi- nal Procedure Code , applications for bail and applications for transfer under section 24 of the Civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to <ORG> and the <ORG> of a lower grade, a rule of practice has been established that a party should proceed first to the latter <ORG> for relief before resorting to <ORG>. He referred to <NAME> v. <NAME> (1) where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions <NAME> v. <NAME> (2) and <NAME> v. <NAME> (3) as showing that <ORG> of the United <ORG>s ordinarily required that whatever judicial remedies remained open to the appli- cant in <ORG> and <ORG> <ORG>s should be exhausted before the remedy in <ORG>---be it habeas corpus or certiorari-- would be allowed. We are of opinion that neither the instances mentioned by the learned Advocate General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this <ORG>, as article 226 does on the (1) I.L.R. 56 All. 158. (2) 205 U. S. 179 . (3) 294 U.S. 103.

<ORG>, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 1II. This <ORG> is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United <ORG>s and we do not consider that the American decisions are in point. Turning now to the merits, there can be no doubt that freedom of speech and expression includes freedom of propa- gation of ideas, and that freedom is ensured by the freedom of circulation. "Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value ": Ex parte Jackson(1). See also <NAME> v. City of Griffin(s). It is therefore perfectly clear that the order of the Gov- ernment of Madras would be a violation of the petitioner's fundamental right under article 19 (1) (a ), unless section 9 (1-A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any "existinglaw in so far as it relates to any matter which undermines the security of, or tends to overthrow, the <ORG>." The question accord- ingly arises whether, the impugned Act, in so far as it purports by section 9 (1-A) to authorise <ORG> "for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into (1) 96 U.S. 727. (2) 303 U.S, 444.

or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the <ORG>."

The impugned Act was passed by <ORG> in exercise of the power conferred upon it by section 100 of the Government of India Act 1935, read with Entry 1 of List II of the Seventh Schedule to that Act, which com- prises among other matters, "public order." Now "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regula- tions enforced by the government which they have estab- lished. Although section 9 (I-A) refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any 'matter distinct from and outside the content of the expression "public order," it would not have been competent for <ORG> to enact the provision so far as it relates to public safety. This indeed was not disputed on behalf of the respondents. But it was urged that the expression "public safety" in the impugned Act, which is a statute relating to law and order, means the security of the Province, and, therefore,' 'the security of the <ORG>" with the meaning of article 19 (2) as "the <ORG>" has been defined in article 12 as including, among other things, the Government and the <ORG> of each of the erstwhile Provinces. Much reli- ance was placed in support of this view on Rex v. Wormwood Scrubbs Prison(1) where it was held that the phrase "for securing the public safety and the' defence of. the realm" in section 1 of the Defence of the Realm (Consolidation) Act, 1914, was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is not of much assistance to the respondents as the context in (1) L.R.  2 K.B. 805.

which the words "public safety" occurred in that Act showed unmistakably that the security of the <ORG> was the aim in view. Our attention has not been drawn to any definition of the expression "public safety," nor does it appear that the words have acquired any technical signification as words of art.

"Public safety" ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety. The meaning of the expression must, however, vary according to the context. In the classification of offenCes in the Indian Penal Code , for instance, Chapter XIV enumerates the "offences affecting the public health, safety, convenience, decency, and morals" and it includes rash driving or riding on a public way ( section 279 ) and rash navigation of a vessel ( section 280 ), among others, as offences against public safety, while Chapter VI lists waging war against the Queen ( section 121 ), sedition ( section 124-A ) etc. as "offences against the <ORG>", because they are calculated to undermine or affect the security of the <ORG>, and Chapter VIII defines "of- fences against the public tranquillity" which include unlaw- ful assembly ( section 141 ) rioting ( section 146 ), promot- ing enmity between classes ( section 153-A ), affray (sec- tion 159) etc. Although in the context of a statute relat- ing to law and order "securing public safety" may not in- clude the securing of public health, it may well mean secur- ing the public against rash driving on a public way and the like, and not necessarily the security of the <ORG>. It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the <ORG> rather than trivial offences like rash driving, or an affray. But whatever ends the impugned Act may have been intended to subserve, and whatever aims its framers may have had in view, its application and scope cannot, in the ab- sence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the <ORG>. Nor is there any guar- antee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicially to the security of the <ORG> and those who do not.

The Government of India Act, 1935, nowhere used the expression" security of the <ORG>" though it made provision under section 57 for dealing with crimes of violence intend- ed to overthrow the Government. While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the Governor was entrusted with the responsibility of combating the operations of persons who "endangered the peace or tranquillity of the Province" by committing or attempting to commit "crimes of violence intended to overthrow the Govern- ment." Similarly, article 352 of the Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the "security of India or any part of the territory thereof is threatened by war or by external ag- gression or by internal disturbance." These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the securi- ty of the <ORG>.

As <NAME> in his 'Criminal Law of England(1) observes:'' Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it." Though all these offences thus involve disturbances of public tranquil- lity and are in theory offences against public order, the difference between them being only a difference' of degree, yet for the purpose of grading the punishment to be inflict- ed in respect of them they may be classified into different minor categories as has been done by (1) Vol. II, p. 242.

the Indian Penal Code . Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 (1 ), has placed in a distinct category those offences against public order which aim at undermining the security of the <ORG> or overthrowing it, and made their prevention the sole justification for legislative abridge- ment of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the <ORG> or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly "sub-clause (b)" and the right of association "sub-clause (c)" may be restricted under clauses (3) and (4) of article 19 in the interests of" public order," which in those clauses includes the security of the <ORG>. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Sched- ule, which refers to the "security of a <ORG>" and "mainte- nance of public order" as distinct subjects of.legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the <ORG> and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differ- ences in kind.

It is also worthy of note that the word "sedition" which occurred in article 13 (2) of the Draft Constitution pre- pared by <ORG> was deleted before the article was finally. passed as article 19 (2). In this connection it may be recalled that <ORG> had, in defining sedition in <NAME> v. <NAME> (1), held that "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency", but <ORG> overruled that  F.C.R. 38.

decision and emphatically reaffirmed the view expressed in <NAME>'s case (1) to the effect that "the offence "consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small "-King Emperor v. Sada- shiv <NAME> (2) Deletion of the word "sedition" from the draft article 13 (2 ), therefore, shows that criticism of Government exciting disaffection or bad feel- ings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the <ORG>. It is also significant that the corre- sponding Irish formula of "undermining the public order or the authority of the <ORG>" article 40 (6) (i) of the Constitution of Eire,  did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the founda- tion of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular govern- ment, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with <NAME> who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.": [Quoted in <NAME> v. <NAME> (3)]. We are therefore of opinion 'that unless a law restrict- ing freedom of speech and expression is directed solely against the undermining of the security of the <ORG> or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19 , although the (1) 22 Bom. 112. (21 L.R. 74, I A. 89. (8) 282U.S, 607, 717-8.

restrictions which it seeks to impose may have been con- ceived generally in the interests of public order. It fol- lows that section 9 (1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is there- fore void and unconstitutional.

It was, however, argued that section 9 (1-A) could not be considered wholly void, as, under article 13 (1 ), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more. In so far as the securing of the public safety or the maintenance of public order would include the' security of the <ORG>, the impugned provision, as applied to the latter purpose, was covered by clause (2) of article 19 and must, it was said, be held to be valid. We are unable to accede to this contention. Where a law purports to authorise the imposi- tion of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional lim- its, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Consti- tution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the <ORG> is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.

The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner's journal in the State of Madras is hereby quashed.

<NAME> the reasons given by me in <CITATION> (1) , which practically

605. involves the same question as is involved in this case, I hold that the reliefs sought by the petitioner cannot be granted. In this view, I would dismiss this petition, but I should like to add a few observations to supplement what I have said in the other case.

It appears to me that in the ultimate analysis the real question to be decided in this case is whether "disorders involving menace to the peace and tranquillity of the Prov- ince" and affecting "public safety" will be a matter which undermines the security of the <ORG> or not. I have bor- rowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the, validity of the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the <ORG> of Madras of "any document or class of documents" for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19 (2) of the Constitution. From the trend of the arguments addressed to us, it would appear that if a docu- ment is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the security of the <ORG>; but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the <ORG>. Speaking for myself, I cannot understand this argument. <CITATION> (1), I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal law like Sir <NAME> has classed sedition as an of- fence against public tranquillity. If so, how could sedi- tion be a matter which would undermine the security of the <ORG> and public disorders and disturbance of public safety will not be such a matter? It was argued that a small riot or an affray will not (1)  S.C R, 605.

undermine the security of the <ORG>, but to this line of argument there is a two-fold answer :--

(1) The Act, as its preamble shows, is not intended for petty disorders but for disorders involving menace to the peace and tranquillity of the Province, (2) There are de- grees of gravity in the offence of sedition also and an isolated piece of writing of mildly seditious character by one insignificant individual may not also, from the layman's point of view, be a matter which undermines the security of the <ORG>, but that would not affect the law which aims at checking sedition. It was also said that the law as it stands may be misused by the <ORG> executive, but misuse of the law is one thing and its being unconstitutional is another. We are here concerned with the latter aspect only. I shall not pursue the matter further as I have said enough on the subject in the connected case.

Petition allowed.

Agent for the petitioner:--K. J. Kale.

Agent for the opposite party :--P. A. Mehta.


JUDGMENT (1) This second appeal raises an important question as to the rights of an insurer to sue in his own name to recover damages from a third party, by whose negligence the <ORG>'s car met with an accident and was totally damaged, but who was fully indemnified by the insurer under a comprehensive policy. On that question, the courts below have differed, the lower appellate court, in a reversing judgment, holding such a suit to be maintainable and decreeing the suit. One <NAME> had insured his car MSP 2228 with <ORG> the plaintiff, against comprehensive risks for Rs. 4000. On 6-2-1955, on the Madras Bangalore road, a lorry MDJ 1099, coming from opposite direction and after overtaking a bus, collided with the car causing serious damage to it. The insurer settled the claim of the <ORG> at Rs. 3030, treating the case as a total loss and itself taking over the damaged car. The insurer later sold it on 16-4-1955, for Rs. 1500 and brought the suit to recover the balance of Rs. 1530 from the second defendant, the owner of the lorry, as loss and damages it had sustained by the wilful, gross, rash and negligent driving of the lorry. The <ORG> did not figure as a party to the suit either as a plaintiff along with the insurer or as a defendant. The basis of the insurer's claim in the suit was that it was subrogated to the rights of the <ORG> against the defendants, including the right to sue and recover damages from them, and that, in any case, it held an assignment from the <ORG> of all his rights. The factum of negligence by the second defendant's driver, which was in issue, is now concluded by the concurrent findings of the courts below, against the defendants, and this question is no longer reiterated in this court.

The second assistant Judge of the city <ORG>, who tried the suit was of the opinion that, though plaintiff had armed itself with a letter of subrogation from the assured to the latter's rights and remedies in respect of damages caused to his vehicle, such a right was not assignable and the latter did not validly clothe the insurer with the right to recover damages. On that view, he held that the suit was not maintainable. If it was, he added, that second defendant would be liable for the suit claim. The plaintiff, however, successfully appealed against that judgment. the Principal Judge, City <ORG>, who disposed of the appeal, thought that a formal assignment of the kind by the assured of his rights and remedies to the insurer was prohibited by S. 6(e) of the Transfer of Property Act, but held that the general principle of S. 69 of the Indian Contract Act together with the principles applicable to contracts of insurance under which in England, the insurer was able to get an assignment from the assured and institute a suit should help the plaintiff. His further view was that though S. 96 of the Motor Vehicles Act only enabled a third party, who had been injured by the insured car, to have his remedy against the insurer, the rights of the insurer should be treated as complementary to such rights of third parties against the insurer. He, therefore, decreed the suit against the second defendant.

(2) On behalf of the second defendant, who is the appellant in this court, it is not contended that he is not liable, as held by the Principal Judge of <ORG>, if it be found that the plaintiff was entitled to maintain the suit in its own name. But, it is argued that, under the Indian Law, as evident from S. 6(e) of the Transfer of Property Act, there can be no valid assignment or transfer of a mere right to sue which was all the <ORG> in this case had. The argument is sought to be reinforced by reference to S. 130-A of the Transfer of Property Act, which expressly provides for transfer or assignment of a policy of marine insurance either before or after loss and by pointing out that this implied that in the absence of an express statutory provision as in the case of a policy of a marine insurance, other policies of non-marine insurance cannot validly be assigned after the loss. On the other hand, for the insurer, it is urged that in cases of total loss, where the insurer had indemnified the <ORG>, the insurer is subrogated to the rights and remedies of the <ORG> against third parties by whose negligence the damage is caused, by reason of which the insurer is entitled to sue in his own name to recover damages from such third party, that on this view, as a matter of fact, no assignment from the <ORG> of his rights and damages to the insurer will be necessary and that under the English law if an insurer could not sue in his own name on the basis of subrogation but he could do so only on the basis of an assignment, it was because of the special rules of pleading there.

(3) It is rather surprising that on a question so important as that, there appears to be not much of Indian authority directly bearing on it. But I think, on principles of English authority and having regard to the peculiar nature and effect of a contract of insurance providing cover for motor vehicles against risks, the view of the Principal Judge of <ORG> as to maintainability of a suit such as this brought by an insurer, is correct. But his judgment can be sustained, not on ground of subrogation, which is its basis, but on ground of assignment by the assured of his rights to the insurer.

(4) A contract of motor insurance, like marine or accident insurance, is, in essence, one of indemnity. The underwriter, for consideration, guarantees the <ORG> compensation against loss or risks, the limits of the guarantee against accident or loss or risks, the limits of the guarantee against accident or loss or damage suffered, totally or partially, being subject to the maximum stipulated in the contract of insurance. Conversely, the rights of the <ORG> are not to profit out of the bargain. It is implied in the very nature of the contract of indemnity that the indemnifier is entitled to recoup or minimise the damages he is obliged to pay the <ORG>, by ways and means the <ORG> himself could resort to, in order to reimburse himself against loss caused to him by third party negligence. Such a right of the insurer is, of course, conditional upon his having already indemnified the <ORG>. In other words, arising out of the nature of a contract of indemnity, the insurer, when he has indemnified the <ORG>, is subrogated to his rights and remedies against third parties who have occasioned the loss. This right of the insurer to subrogation or to get into the shoes of the <ORG> as it we, need not necessarily flow from the terms of the motor insurance policy, but is inherent in and springs from the principles of indemnity. This is as a matter of law relating to indemnity, and the basis of the right is justice, equity and good conscience, namely, the indemnifier should be in a position to reduce the extent of his liability within limits.

(5) Where, therefore, an insurer is surrogated to the rights and remedies of the assured, the former is to be more or less in the same position as the assured in respect of third parties and his claims against them founded or tortious liability in cases of motor accidents. But it should be noted that the fact that an insurer is subrogated to the rights and remedies of the assured does not ipso jure enable him to sue third parties in his own name. It will only entitle the insurer to sue in the name of the assured, it being an obligation of the assured to lend his name and assistance to such an action. By subrogation, the insurer gets no better rights or no different remedies than the assured himself. Subrogation and its effect are, therefore, not to be mixed up with those of a transfer or an assignment by the assured of his rights and remedies to the insurer. An assignment or a transfer implies something more than subrogation, and vests in the insurer the assured's interest, rights and remedies in respect of the subject matter and substance of the insurance. In such a case, therefore, the insurer by virtue of the transfer of assignment in his favour will be in a position to maintain a suit in his own name against third parties. It is here, I think, the Principal City Civil Judge went wrong in his reasoning for his view that the insured's suit, in his own name, was maintainable. As I indicated, however, his view as to maintainability of the suit is quite right. But the reason on which it is found is wrong. I say he is right to sustaining the suit because the insurer had armed himself with an assignment from the assured.

(6) I now turn to authority.

22 Halsbury's Laws of England, <ORG> states in paragraph 512 that--"subrogation" is a right inherent in all contracts of indemnity, and further--"the doctrine of subrogation applies to all contracts of non-marine insurance which are contracts of indemnity, such, as, for example, contracts of fire insurance, motor vehicle insurance and contingency insurance covering non-payment of money. It applies whether the loss is total or partial, and is a corollary of the principle of indemnity. By requiring any means of diminishing or extinguishing a loss to be taken into account it prevents the assured from recovering more than a full indemnity."

In paragraph 518, it is again stated:

"Subrogation, in the strict sense of the term, expresses the right of the insurers to be placed in the position of the assured so as to be entitled to the advantage of all the rights and remedies which the assured possesses against third parties in respect of the subject matter............ The right does not arise until the insurers have admitted the liability to the assured, and have paid him the amount of the loss."

(7) <NAME> on "Motor Insurance" which is a leading authority on the subject, in an elaborate discussion of the principles of subrogation as applied to motor insurance, mentions that the effect of the doctrine of subrogation is that the insurers are entitled to be placed in the position of the assured and to succeed to all his rights and remedies against third persons in respect of the subject matter of insurance, and explains that the test upon which the doctrine rests is the fundamental principle that insurance is a contract of indemnity. The author draws a distinction between subrogation and transfer and says:

"The doctrine of subrogation does not apply so as automatically to transfer rights of action against third parties to the insurers, but it only entitles them, unless there has been an express agreement or transfer, to the benefit of such rights as are and remain vested in law in the assured. Actions, therefore, to enforce such rights must be brought in the name of the assured as a rule, and my defence which is valid against the assured as, for example, that he has released or compromised his right of actin, is available to the defendant in such proceedings."

As regards rights of action, <NAME>, referring to Castellain v. <NAME>, 1883-11 Q.B.DD. 380 and <NAME> v. <NAME>, 1877,-3 A. C. 279 gives his view:

"It is clear that amongst those rights and remedies of the <ORG> to which the insurers succeed, and for the purposes of which they stand in his shoes, are such rights of action as he was entitled to enforce towards the recoupment of that loss against which his insurers have provided indemnity. It is equally clear, on the other hand, that the doctrine is one operative as a rule between insurers and <ORG> only, and that the insurers are therefore not entitled to proceed in their own names against such persons as may be liable to the <ORG> in respect of the loss or liability concerned. Thus, unless an express assignment of the <ORG>'s rights has been made to the insurers, which will entitle them without his intervention to take action against third parties, the insurers must proceed in he name of the <ORG>, who may be compelled to lend it for the purpose."

These two authorities clearly bring out the English principles of subrogation as implied in contracts of indemnity and the effect of subrogation as distinguished from that of transfer or assignment as regards rights of action.

(8) Normally, an assignment of a right of action for a tort is not valid. Such a right is but a bare right to sue, and the principle of non-assignability of such a right of action has received statutory recognition under S. 6(a) of the Transfer of Property Act, But case of subrogation as applied to insurance for indemnity are an exception to the rule. One justification may be that subrogation in such cases is brought about, not by assignment, but by operation of law. But the decided cases in England appear to go further to hold that assignments by an assured to the insurer of his rights and remedies are permissible and are valid. <CITATION> . 1896 A. C. 250 is one such authority. That was an interesting case of an insurer, who, having paid the assured an indemnity, sued <ORG>, a third party, whose negligence caused damage to the assured, to recoup itself to the extent of the indemnity paid. The insurer sued in its own name, and one of the contentions before <ORG> was that the insurer could not maintain the action in its own name. Lord <NAME>, speaking for the <ORG>, overruled the contention in these words:

"It is true that subrogation by act of law would not give the insurer a right to sue in a court of law in his own name. But the difficulty is to over by force of the express assignment of the bank's claim, and of the Judicature Act, as the parties must have intended that it should be when they stipulated that nothing in the assignment should authorise the use of the bank's name."

Thus, this view of the law never since appears to have departed from in English courts. Though the facts in 1883-11 Q. B. C. 380 which was decided by <ORG> were different, the doctrine of subrogation as applied to contracts of insurance, as in this case, has been elaborately discussed and it is made clear that by reason of subrogation, defined as it is in a wide sense the, will not by itself enable the insurer to maintain an action in its own name to recover from third parties in order to recoup itself. In my opinion, these well established English principles of the law of insurance, as applied particularly to contracts of indemnity in insurance, are part of the laws of this country as well. They are founded not only on the nature of insurance involving indemnity, but also on equitable principles and business consideration.

(9) It is true that S. 130-A of the Transfer of Property Act provides for the transfer or assignment of a policy of marine insurance; but I do not accept the argument for the appellant that this express enabling provision means that impliedly assignment of insurance policies either before or after loss, is prohibited. Section 6(e) of the same Act forbids only transfer of a mere right to sue. It seems tome that an assignment or a transfer by an assured of his rights and remedies to the insurer is not of a mere right to sue, and is, therefore not within the statutory inhibition. 1896 AC 250 is in effect an authority for it. This case was refereed to by a Division Bench of this court inn <NAME> v. <NAME>, ILR 38 Mad 308: (AIR 1916 Mad 473(1)) and was distinguished for purposes of S. 6(e) by pointing out that the right of an insurer under a contract of insurance to be subrogated to the rights and remedies of the assured could not be regarded as arising merely from the transfer of a mere right of action. An assignment of such a right is not on a par with an assignment of a claim for past mesne profits or a claim for damages for negligence and is not hit by S. 6(e) . <CITATION> . 66 Cal WN 419 takes the same view.

(10) I hold, therefore, that the assignment in favour of the respondent-insurer clearly entitled it to sue the defendant in its own name. The second appeal fails and is dismissed with costs of the first respondent. No leave.

(11) Appeal dismissed.


JUDGMENT

1. The suit out of which this appeal arises was brought to recover joint possession of a certain temple of the <NAME>charya Gosain sect, in which the images of <NAME> are placed, together with a grove and the movable property, ornaments and other articles, appurtenant thereto. The plaintiffs are the sons of one <NAME>, a daughter of one <NAME>. The original defendants were <NAME> and <NAME>, the sons of one <NAME> (another daughter of the said <NAME>) and <NAME>, the husband of <NAME> (sic). When the suit was first instituted, the plaintiffs merely claimed joint possession with <NAME> and <NAME>. Whilst the suit was pending, <NAME> died unmarried leaving his father <NAME> as his representative. Again, pending the suit, <NAME>, who is now the principal defendant and respondent, brought a suit against <NAME> and <NAME> claiming that, under the custom observed by the sect, he was entitled to possession of the temple and other property. That suit was referred to arbitration and the arbitrators decided in favour of <NAME> and the custom set up. <NAME> was thereupon by an order of the <ORG>, dated the 25th August 1905, made a defendant to the present suit. Apparently by an oversight the plaint was not amended in the lower <ORG> though the plaintiffs deny in toto this defendant's right to possession. The proper issues, however, were framed and the parties went to evidence thereon, and we have, therefore, allowed the plaints to be amended by adding a prayer for his ejectment. He, <NAME>, (as also did <NAME>), belongs to a sect called <ORG>. This sect originated over four hundred years ago. It was established by a man of the name of <NAME>, son of <NAME>. The doctrine whieh he originated was opposed to that of the celebate Gosains. He held that the ideal life consisted rather in social enjoyment than in solitude and mortification, and contrary to the ordinary rule of the celebates, he married and had two sons, <NAME> and <NAME>. <NAME> had seven sons and they founded seven temples or gaddis which are still in existence. These seven principal gaddis, which are called "Takait temples," have acquired considerable property representing offerings and dedications of the followers of the sect. The Maharajas (as <ORG> are styled) are supposed by their followers to be personages of great sanctity, and it is even sometimes said that they are incarnations of the Deity himself. They do not intermarry on account of the objection that they are all of the same Gotra. Their wives are daughters of Bhats and their daughters are married to the sons of Bhats. The history of the temple in dispute is not' very ancient. In the plaint it was alleged that the said <NAME> was the owner of the property in suit. This was denied by the defendants who alleged it to be temple property or debutter. The lower <ORG> found on the issue in favour of the defondants and that finding is accepted by Mr. <NAME> on behalf of the appellants in this <ORG>; but he maintains that the appellants are entitled jointly with Madhsudan, Lala to the possession of the property in the capacity of shebaits or Superintendents and managers. There is a dispute between the parties as to whether the temple was built by <NAME> or his father but the evidence goes to show that it was the son who built it and first exercised the function of a Gosain therein. The immovable property is of comparatively speaking small value being confined to a small grove and the temple in dispute. No villages or landed property had been dedicated for its support. But it is probable that in this temple like many others of its kind the offerings of the votaries are very considerable. As to its history the witness <NAME>, a witness for the respondent, says that <NAME> (otherwise <NAME> see pedigree at page 68 R.) presented <NAME> with the idol of <NAME> and that he presented the idol on the terms that "if a son or sons should be born to <NAME>'s father they would regularly perform the Sewa puja ceremonies, but if there should be none it would be returned to him". The witness <NAME> says that the building of the temple had begun before the <ORG>, that <NAME> built it and that the land belonged to <NAME> and the temple was built with the latter's permission. <NAME> was the grand-father of <NAME> (see pedigree at page 68 R.). Both of them were Tikaits, that is to say, they were the eldest male descendants in a line from one of the seven sons of <NAME>. The documentary evidence on the subject is Exhibit A which is a letter, said to have been written by <NAME> to <NAME>. Translation of the letter is to be found at page 75 R. <NAME> and <NAME> were both Tikaits Gosains, holding in succession a Tikait temple and the defendant is the eldest son and successor to <NAME>. The plaintiffs claimed the property in the first instance as being their personal property by inheritance from <NAME>; it was never alleged that they or <NAME> were the dedicators of the grove, temple or idol and we are satisfied that such a claim could never successfully have been made. The <ORG> below has found, and the finding has been accepted in this <ORG> orally by Mr. <NAME> (who thereby abandoned pleas Nos. 3 and 13 in the memo of appeal), that the property was "debutter" or "waqf" and the real question which was argued in appeal has been whether or not the plaintiffs are entitled along with the sons of the other daughter of <NAME> to succeed to the management of th etemple and the temple property. Mr. <NAME> claimed that either <NAME> or his father dedicated the property to the deity and as no scheme of management by the dedicator has been proved, the right of superintendence and management vests in the legal heirs of <NAME>. A large volume of evidence was given in the <ORG> below on both sides. The plaintiffs contended that unless the defendant <NAME> successfully proved a legal custom excluding daughter's sons, they as the heirs of <NAME>, (according to the ordinary Hindu Law of inheritance in respect of private property), were entitled to succeed to the management of the temple. The <ORG> below has found upon the evidence that the defendant did prove the existence of a custom amongst the <NAME>charya Gosain sect excluding daughter's sons and that the plaintiffs had failed to prove that daughter's sons inherited the management of <NAME>charya Gosain temples. The contention in appeal before us was that the defendant had entirely failed to prove such a custom and that the evidence adduced on behalf of the plaintiffs demonstrated that so far from there being a universal custom excluding daughter's sons, the very contrary prevailed in other temples. All this argument proceeded on the basis that under the circumstances of the case the ordinary rule of Hindu law as to inheritance prevailed unless a custom contrary to that rule was proved and that the onus of proving this custom rested on the defendant. We are inclined to think, if this foundation of the appellants' argument was sound, a great deal might be said for the proposition that the defendant has failed to prove a universal custom excluding daughter's sons. We propose now to consider the all important questions whether this basis of the appellants' case is well-founded. It must be admitted that where there is a dedication of property by a private individual for religious purposes in the absence of any proof of disposal or direction by the dedicator, the trusteeship will vest in the latter's heirs, vide Gossami Sri Girdhariji v. Romanlalji Gossain 17 C. 3 : 16 I.A. 137. It is contended, however, on the part of the defendant <NAME> that this rule does not apply to a case like the present which raises the question of who shall be the shebait, not as between the heirs of a dedicator of property for religions purposes, but between claimants to the shebaitship against another person already in possession of the office and who is admittedly capable of performing the functions of the office. Their Lordships of <ORG> observed in the case of <NAME> v. <NAME>, Pillai 1 I.A. 209 at p. 228: But the constitution and rules of religtous brotherhoods attached to Hindu temples are by no means uniform in their character and the important principle to be observed by the <ORG>s is to ascertain, if that be possible, the special laws and usages governing the particular community whose affairs become the subject of litigation and to be guided by them." This case was referred to in the case of <CITATION> 10 I.A. 32, and at page 37 their Lordships re-assert: "when owing to the absence of documentary or other direct evidence it does not appear what rule of succession has been laid down by the endower of a religious institution, it must be proved by evidence what is the usage." The case out of which this appeal to their Lordships of <ORG> arose raised also a question of succession between rival claimants to shebaitship. At page 38 of the volume their Lordships further say: "There is, no doubt, considerable difficulty in ascertaining what is the rule of succession to this office, but it is certain that the usage had not been according to the ordinary rules of inheritance under Hindu law. Not only does the usage not support the plaintiff's claim, but it is opposed to it. It is not for their Lordships to consider whether there is any infirmity in the title of the respondent <NAME>, who has been in possession many years, with the consent (if not by appointment) of the <NAME>." In the present case it was never alleged, much less proved, that <NAME> dedicated any property: on contrary <NAME>, the ancestor of the defendant, was the recorded zamindar of the grove and the site of the temple. Probably the property belonged to the Tikait temple of which <NAME> was the manager, and if, as alleged by a witness, the first idol was presented to <NAME>, it was probably one of the smaller idols, which had been sitting in the lap" of the larger idol in the Tikait temple. We think under the circumstances of the present case that the onus did not lie on the defendant <NAME> to prove a universal custom excluding the daughter's sons. The evidence in the case establishes one or two matters beyond all doubt. We may mention in the first place that it has been admitted at the bar in the clearest possible manner that in the case of Tikait temples, that is of the principal temples of the sect, the ordinary rule of Hindu law as to inheritance does not apply and that on the contrary the succession invariably goes by the rule of lineal primogeniture and that daughters and daughters' sons are always excluded. It is also demonstrated by evidence that there are portions of the worship in a <NAME>acharya Gosain temple which cannot be performed by any person other than a <NAME>acharya Gosain. The plaintiffs' own witness <NAME> says at page 4 A: "in some cases the daughter's son does inherit his maternal grandfather's property. We, <NAME>s, have a large following of disciples at different places where the disciples would object to have any body as their <NAME> unless he belonged to the <NAME>akul, and where there is not such a large following the <NAME> does sometimes appoint his own relatives to the gaddi and there are such instances. The daughter's son does not worship the <NAME> in the temples, which are not in his charge, but in cases where the temple is given to him (daughter's son) he he does perform the worship, I mean to say that the daughter's son does not worship the <NAME> in the present times, but he used to do it in former times. The founder of Bailavkul was <NAME> himself and <NAME> was the father of <NAME>acharya. <NAME> was a Bhatta. About two or three hundred years ago, the daughter's son was allowed to worship the <NAME> in the mandir of Bailavkul even though it was not in his charge."

2. Question (put to the witness). "For what reason has the daughter's son since been prohibited from worshipping the Thakurji in the temple of <NAME>." (Objected to by Mr. <NAME> as the witness cannot have any personal knowledge).

3. Answer (subject to objection). On one occasion one of the Bhatjis performed the Arti (light-waving ceremony) without waiting for <NAME>. Since that time we have stopped them from performing the worship as we feared that they might do a lot of other things without our permission. The Bhatji has the right of worshipping, and in one or two mandirs of my own, a Bhatji does perform the worship. It is not true that we are governed by the Hindu law. We have our own customs and where the Hindu law agrees with our Sectarian rules (customs) we follow it." In cross-examination the witness says "With the exception of the three instances, I have mentioned, the custom is not to allow a daughter's son to worship the idol. A mandir, which has been given over to a Lalaji or Bhatji and in which the Bhatji worships the idol, is not called the temple of <NAME> at all. It is our custom that the mandir and everything in it, which has once belonged to the <NAME>, does remain with the <NAME> and I have already given my reason for the same."

4. It is hardly necessary to mention that a daughter's son can never be a Ballavcharya Gosain. It will be seen from this evidence given by the plaintiffs' own witness that the sect is not governed by the Hindu law and that it is only in cases more or less rare that a daughter's son has been allowed to succeed to a Goshain temple and the result of so succeeding has been to cause the temple to cease to be a Ballavcharya Gosain temple. Again <NAME>, another <NAME> witness, examined on behalf of the plaintiffs, admits (Vide A. 14) that succession of daughter's son is by no means universal, is rather rare and there is at least a part of the office of a <NAME>, which cannot be performed by a <NAME>. There is undisputed evidence (See p. 6. 15. A. plaintiff's own witnesses), that in two cases daughters of <NAME> nominated <NAME> to their <NAME> temples passing over their own sons who were <NAME>s. This, if the ordinary Hindu law had prevailed, they would have no power to do, and the fact that they did do so, is a strong ground for believing that itis unusual and improper that a <NAME> should succeed to the management and superintendence of a <NAME> temple It seems to us that it would be improper for the <ORG> to establish on the gaddi persons, who, on the admission of the plaintiffs' own witnesses, could not properly perform the office and whose presence as shebaits would degrade or at least lessen the importance of the temple. We are also of opinion that the plaintiffs' own evidence and the admission at the bar as to Tikait temples demonstrate that the ordinary Hindu law of inheritance does not apply to the succession in the case of the shebaitship of these temples and that the onus lay on the plaintiffs of showing that they were the persons entitled to the office under the customary law of the sect. It is unnecessary for us to go so far as to hold with the learned Judge that the defendant proved by evidence a universal custom as to the exclusion of the daughter's son. We have not thought it necessary to deal at length with the evidence adduced by him. It has been fully dealt with by the <ORG> below. In our opinion the defendant's evidence, corroborated as it is by the plaintiffs' evidence already referred to, proves clearly that whatever may be the custom or usage in this (sic) in regard to succession to the management of temples, the ordinary rule of inheritance under Hindu law does not prevail. We have now to see whether the plaintiff's evidence establishes any custom or usage under which the daughter's sons are entitled to succeed to the management of the temple in dispute.

5. We have already quoted at some length from the evidence of the only two Ballavacharya Goshains called by the plaintiffs and that very evidence in itself shows that there is no such custom or usage in force.

6. The other witnesses are Bhats or other classes of Gosains. They profess to give 11 instances in which daughter's sons have inherited temples from their maternal grand-fathers. The evidence is vague and leaves it in doubt whether these maternal grand-fathers were Bhats of Ballavacharya Gosains. It is unnecessary to deal at length with this evidence.

7. It has been fully discussed in the judgment of the lower Court. We agree with that Court that it falls far short of proving any such custom or usage as is put forward by the. plaintiffs; especially in view of the instances in which arrangements have been made in certain temples by the widows and daughters of soilless <NAME> to instal other Ballavacharya Gosains on the gaddis to the exclusion of their own grandsons and sons who were Bhats.

8. The burden of proof being on the plaintiffs, they have, in our opinion, failed to discharge it. Their suit was, therefore, properly dismissed. It is unnecessary to decide the other points raised in the case.

9. We, therefore, dismiss the appeal with costs including in this <ORG> fees on the higher scale.


<NAME>, J.

1. The respondent is the owner of a shop in Calicut town and the appellant is his tenant, holding the shop on a month-to-month tenancy. The respondent filed O.S. No. 405 of 1943 for the eviction of the appellant; but before he could obtain a decree, the Non-Residential Building Rent Control Order, 1942, had been amended on nth July, 1944. Apparently unaware of the amendment, a, decree was passed in the respondent's favour on the 8th September, 1944. Almost immediately, the respondent applied for possession, obtained an ex parte order in his favour, and was actually put in possession on the 15th September, 1944. On the 28ih October, 1944, the appellant drew the attention of the executing <ORG> to the amendment on the nth July, 1944, and pointed out that the <ORG> had acted ultra vires, in that its order delivering possession to the respondent was void. The <ORG> then took action under Section 151 of the Code of Civil Procedure and set aside its previous order on the ground that it would not have passed that order if its attention had been drawn to the amendment. The matter was taken in appeal to the Subordinate Judge, who affirmed the decision of the trial <ORG>. The matter came before <NAME>, J., in A.A.A.O. No. 43 of 1946. The learned Judge held that despite the passing of the amendment on the 11th July, 1944, the law to be applied, to the case was the law as it existed at the date of filing the suit. He therefore allowed the appeal with costs throughout. At the same time, he granted leave to appeal under the Letters Patent.

2. There can be no doubt, on the plain words of the amended Clause 8 of the Non-Residential Building Rent Control Order, 1942, that the tenant was entitled to remain in possession.

3. Clause 8(1) says:

A tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree or otherwise...except in accordance with the provisions of this clause.

As there are no provisions in this clause for the eviction of the tenant on the grounds raised in the suit, it is clear that if this sub-clause be taken at its face value, the tenant could not be evicted even though a decree had been obtained. Sub-clause (2) makes the matter even clearer; because the procedure to be adopted by a landlord who desires to evict his tenant is not to apply to <ORG> in execution of his decree, but to <ORG> for a direction that the tenant be evicted. The Con (roller has then, after giving the tenant a reasonable opportunity of showing cause against the application, to consider whether the tenant has been guilty of any of the laches or defaults referred to in the various paragraphs of Sub-clause (2). If he is satisfied that he has, then he shall order the eviction; if he is not so satisfied, then he is bound to reject the application.

4. The difficulty which the learned Judge felt in giving Clause 8 its plain interpretation was that to do so would be to infringe the principle that a new legislation should not affect existing rights unless the wording of the statute makes it clear, expressly or by necessary implication, that it is to have retrospective effect. Although the suit was still pending at the time when the amendment was made, yet it has not been contended that the introduction of this legislation created a new law to be applied by the <ORG> and that the decree passed by the <ORG> was consequently not a valid one. The execution proceedings were filed long after the amendment came into force. Mr. <NAME> has been constrained to argue that the moment a person files a suit he obtains thereby a vested right to have applied not only to the suit, but to all execution proceedings also, the law relating to execution as it existed at the time of filing the suit. We know of no such principle; and we find no reason to think from the cases that have been cited before us that if a new law is introduced restricting the right to execute, execution proceedings can nevertheless be instituted if such a right existed on the date of the filing of the suit. Our attention has been drawn to the judgment of <NAME>, J., in The United Provinces v. <NAME> (1941) 1 M.L.J. (Supp.) 65 : 3 F.L.J. 97 : I.L.R. 1941 Kar. 73 (F.C.) in which reference is made to certain English cases interpreting British Statutes said to be similar to the Statute here under consideration; but we have not seen those decisions or those Statutes and we are not at all convinced that any such general principle exists.

5. The learned judge, in attempting to reconcile the new amendment with the principle leaning against giving retrospective effect to new legislation, was inclined to think that the words " in execution of a decree " can only be applied to suits instituted after the nth July, 1944. It seem to us, however, that no suits could be instituted after that date; for by the new Act a landlord desirous of evicting his tenant would not file a suit; but would apply directly to the Rent Controller, who would then proceed to hear the objections of the tenant and to decide the case in accordance with the principles laid down in Clause 8. The learned Judge found support for his conclusion in the decision of <NAME>, J., in <CITATION> (1945) 1 M.L.J. 441 in which the learned Judge allowed a revision petition against an order of the Chief Judge of <ORG>, Madras, who, during the course of a petition praying for possession, applied the new law as soon as it came into force and dismissed the application. That case can clearly be distinguished because, as we have already said, we are not here concerned with the applicability of the new law to pending proceedings; and we do not find from <NAME>t, J.'s judgment any principle laid down that could usefully be applied to this case, except the well-recognised one that one should not apply a new law to divest a person of his vested rights, unless by express or necessary implication the new law is made by the <ORG> to do so. In summing up, <NAME>t, J., said:

If and when an application for possession comes before the Controller, the Controller should apply his mind to the circumstances actually and presently before him to enable him to make or refuse an order, and it would be for one side or the other to point out that the application for ejectment had lost its force owing to the fact that since the application had been made, difficulties which were then not in existence had arisen or difficulties that were in existence had disappeared. I am not however concerned with any such position in this case.

It is seen from this passage that the learned Judge, far from thinking that the landlord had, by the institution of his application for possession in the Sub-Court, acquired an absolute right to physical possession, contemplated proceedings before the Rent Controller in which it would be contended by the tenant that in view of the new legislation, actual possession could not be given. <NAME>, J., also referred to certain passages in the judgment of <NAME>, J., in the <ORG> case referred to and said:

<NAME>, J., points out that unless either expressly or by necessary intendment it is made out in the new legislation that it applies to pending proceedings as well, it ought not to be construed to have retrospective operation so as to affect the rights of parties in pending suits.

With respect, we agree with this observation but, as we have already pointed out, we are not concerned here with pending proceedings. We are not prepared to say that during the period between the passing of the decree and the filing of the execution petition there were any pending proceedings. We are only concerned here with the right of the respondent to execute his decree; and we are of opinion that Clause 8 prohibited him from filing an execution petition in the <ORG>, his only way of evicting the tenant being to file an application before the Rent Controller.

6. The appeal is therefore allowed and the decrees of <ORG> and of the first appellate Court restored. The appellant will be given his costs in this Court and before <NAME> J.

7. In this Court <NAME> has been brought on record in the place of the original respondent; and so <NAME> will be liable for costs in this Letters Patent Appeal and the original respondent in the other Courts.