judgement:
ions Nos. 126 and 127 of 1957.
(Under Article 32 of the Constitution of India for enforcement of Fundamental Rights).
N. C. Chatterjee and Nanak Chand, for the petitioners.
M. C. Setalvad, Attorney General for India, B. Sen and R. H. Dhebar, for the respondents.
October 31.
The following Order of the Court was delivered by DAS C.J.
In their respective separate petitions, the petitioners pray (1) for an order, direction or writ in the nature of certiorari and/or prohibition calling for the records in the case of the Assistant Collector of Land Customs & Central Excise, Amritsar, against the two petitioners and one Moshe Baruk, on the file of the Additional District Magistrate of Amritsar and for quashing the proceedings therein, and (2) for an order, direction or writ in the nature of habeas corpus for the production before this Court of the persons of the petitioners to be dealt with according to law.
The facts appearing from the records are shortly as follows: The petitioner, Leo Roy Frey, purchased a car No. C.D. from an officer of the American Embassy in Paris.
This car was sold by the petitioner Frey to the petitioner Thomas Dana, in May 1957.
On transfer, the car was registered in the name of the petitioner Dana on May 18, 1957.
Both the petitioners thereafter booked their passages through the, 824 American Express Company from Geneva to Bombay by s.s. ASIA.
The car was also shipped by the same vessel.
The two petitioners disembarked at Karachi Ion June 11, 1957, and after a brief halt at Karachi, they left together by plane for Bombay and reached Bombay on the same day.
petitioners stayed together at the Ambassador Hotel at Bombay from June 11, 1957, to the afternoon of June 19, 1957.
On the last mentioned date both of them left Bombay by plane and reached Delhi the same evening.
They occupied room No. I at Janpath Hotel and stayed there from June 19, to June 29, 1957.
After the car, which had been booked by rail from Bombay to Delhi, had arrived in Delhi, the two petitioners left Delhi and travelled together in the car from Delhi to Amritsar on June 22, 1957, and after staying the night there, they arrived at Attari Road Land Customs Station on their way out to Pakistan on June 23, 1957.
The Customs officers there required the petitioners to declare in Baggage Declaration Forms supplied to them the articles which they had in their possession, including any goods which were subject to Export Trade Control and/or Foreign Exchange restrictions and/or were dutiable.
Each of the petitioners completed his Baggage Declaration Form and handed it over to the Customs authorities duly signed by him.
On that very day the persons of each of the petitioners were also searched and certain currency and movable property which had not been included in the baggage declaration were recovered.
Amongst other things, a pocket radio and a time piece were recovered from the petitioner Dana and a pistol of 22 bore with 48 live cartridges of the same bore was recovered from the person of the petitioner Frey.
Both the petitioners were put under arrest on the same day, namely, June 23, 1957.
On June 30,1957, the petitioners were interrogated and the car was thoroughly searched.
As a result of such intensive search and minute inspection, a secret chamber above the petrol tank was discovered.
On opening the secret chamber, Indian currency to the tune of Rs. 8,50,000 and U.S. dollars amounting to 10,000 were discovered in the concealed recess and 825 seized by the police.
On July 7, 1957, notice was issued to the petitioner Dana under section 167(8) of the Sea Customs Act to show cause before the Collector why under that section penalty should not be imposed on, him and why the seized articles should not be confiscated.
A similar notice was served on the petitioner Frey, on July 9, 1957.
The petitioners made representations in writing and were also heard in person.
On July 24, 1957, the Collector of Central Excise and Land Customs made an order for the confiscation of the currency and also of the motor car with an option to the petitioner Dana to redeem the car on payment of Rs. 50,000 and also ordered confiscation of articles other than the currency recovered from the car subject to redemption on payment of Rs. 100.
The Collector was also satisfied that each of the two petitioners was equally guilty of an offence under section 167(8) of the Sea Customs Act and imposed a personal penalty of Rs. 25,00,000 on each of the petitioners, to be paid within two months from the date of the order or such extended period as the adjudicating officer might allow.
On August 12, 1957, the Assistant Collector of Customs and Central Excise, Amritsar, lodged a complaint against the two petitioners and one Moshe Baruk of Bombay before the Additional District Magistrate, Amritsar, under section 23 read with section 8 of the Foreign Exchange Regulations Act, 1947 and section 167 (81) of the , as amended by the Sea Customs (Amendment) Act, 1955.
Subsequently, a fresh complaint was filed by the same Assistant Collector of Land Customs and Central Excise against the two petitioners and the said Moshe Baruk before the Additional District Magistrate, Amritsar, ' under section 23 read with section 8 of the Foreign Exchange Regulations Act, 1947, and section 167(81) of the and s ' 120 B of the Indian Penal Code, read with section 23/23 B, Foreign Exchange Regulations Act and section 167(81), .
A case was also started against the petitioner Frey under the Indian Arms Act for being in possession of the pistol and the cartridges in contravention of the provisions of section 20 of 826 that Act.
He was ordered to be let out on bail in the sum of Rs. 10,000 with one surety in the Arms Act case, which he furnished.
The trial of the Arms Act case has concluded in the Court of the Additional District Magistrate but orders are pending.
The petitioners, Frey and Dana, were directed to be released on bail in the sum of rupees five lakhs and ten lakhs respectively, which were finally reduced by the High Court to rupees two lakhs and five lakhs respectively.
Neither of the petitioners could furnish the requisite security and they have, therefore, been in judicial custody.
They have now come forward with these applications for the reliefs already mentioned.
Their main contention, urged before us, is that they have been deprived of their liberty otherwise than in accordance with procedure established by law.
In ordinary circumstances the production of the order or warrant for the apprehension and detention of an undertrial prisoner would be a good return to a writ of habeas corpus.
But the petitioners contend that in this case there has been a violation of their fundamental right under article 20(2) of the Constitution.
Relying on the observations in the decision of the Calcutta High Court in Assistant Collector vs Soorajmal (1), and in the decision of the Madras High Court in Collector of Customs vs A. H. A. Rahiman (2), it is contended that in making the order of confiscation and penalty under section 167(8) of the , the Collector was acting judicially and therefore the petitioners have already been proceeded with and punished for the offence of importation and attempted exportation of goods, the importation or exoprtation of which is for the time being prohibited or restricted by or under chap.
IV of the , and consequently they cannot again be prosecuted and punished for the same offence.
The argument is that the pending proceedings before the Additional District Magistrate offend against the protection given to the petitioners by article 20(2) of Constitution.
That in imposing confiscation and penalties the Collector acts judicially has been held by this Court in its judgment (I) (2) A.I.R. 957 Mad.
827 pronounced on May 16, 1957, in F. N. Roy vs Collector of Customs (1).
No question has been raised as to the maximum amount of penalty that can be imposed under section 167(8) and we are not called upon to express any opinion on that point.
But the fact that the Collector of Customs acted judicially is not decisive and does not necessarily attract the protection guaranteed by article 20(2) and the question still remains whether the petitioners ' case comes within the provisions of article 20(2).
That article protects a person from being ,prosecuted and punished for the same offence more than once".
The question has to be answered as to whether the petitioners had previously been prosecuted and punished for the same offence for which they are now being prosecuted before the Additional District Magistrate.
The proceedings before the Customs authorities were under section 167(8) of the .
Under section 186 of that Act, the award of any confiscation, penalty or increased rate of duty under that Act by an officer of Customs does not prevent the infliction of any punishment to which the person affected thereby is liable under any other law.
The offences with which the petitioners are now charged include an offence under section 120B, Indian Penal Code.
Criminal conspiracy is an offence created and made punishable by the Indian Penal Code.
It is not an offence under the .
The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients.
They are, therefore, quite separate offences.
This is also the view expressed by the United States Supreme Court in United States vs Rabinowich (2).
The offence of criminal conspiracy was not the subject matter of the proceedings before the Collector of Customs and therefore it cannot be said that the petitioners have already been prosecuted and punished for the "same offence".
(1) Petition NO.
438 Of 1955.
105 (2) ; 828 It is true that the Collector of Customs has used the words " punishment " and " conspiracy ", but those words were used in order to bring out that each of the two petitioners was guilty of the offence under section 167(8) of the .
The petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore article 20(2) cannot be invoked.
In this view of the matter it is not necessary for us, on the present occasion, to refer to the case of Maqbool Hussain vs The State of Bombay (1) and to discuss whether the words used in article 20 do or do not contemplate only proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal as ordinarily understood.
In our opinion, article 20 has no application to the facts of the present case.
No other points having been urged before us, these applications must be dismissed.
Applications dismissed.

summary:
The petitioners were found guilty under section 167(8) of the Sea Customs Act and the currency and other goods recovered from their possession were confiscated and heavy personal penalties imposed on them by the Collector of Central Excise and Land Customs.
Complaints were thereafter lodged against them by the Customs authorities before the Additional District Magistrate under section 120B of the Indian Penal Code, read with section 23/23B of the Foreign Exchange Regulations Act, 1947, and section i67(8i) of the Sea Customs Act, as also under other sections of the two latter Acts.
The Magistrate granted bail but they could not furnish the requisite security and were, therefore, kept in judicial custody.
By two petitions under article 32 Of the Constitution they prayed for the issue of writs of certiorari and/or prohibition for quashing the proceedings pending against them in the Court of the Magistrate as also for the issue of writs of habeas corpus.
It was contended on their behalf that in view of the provision of article 20(2) Of the Constitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending before the Additional Magistrate violated the protection afforded by article 20(2) of the Constitution.
Held, that the contention was without substance and the petitions must be dismissed.
The fact that in imposing confiscation and penalties under section 167(8) of the Sea Customs Act, the Collector of Customs acts 823 judicially is not decisive and does not attract the protection of article 20(2) of the Constitution.
Section 186 of the Act does not prevent the infliction of any other punishment to which the person concerned may be liable under any other law.
F. N. Roy vs Collectoy of Customs, Petition NO.
438 Of 955, decided on May 16, 1957, referred to.
Criminal conspiracy is an offence under section 120B of the Indian Penal Code but not so under the Sea Customs Act, and the petitioners were not and could not be charged with it before the Collector of Customs.
It is an offence separate from the crime which it may have for its object and is complete even before the crime is attempted or completed, and even when attempted or completed, it forms no ingredient of such crime.
United States vs Rabinowith, ; , referred to.


judgement:
Appeal No. 188 of 1974.
From the Judgment and Decree dated 25.8.72 of the Alla habad High Court in Special Appeal No. 223 of 1966.
P.P. Juneja for the Appellant.
Mrs. Rani Chhabra and Mrs. Rachna Gupta for the Respond ents.
The Judgment of the Court was delivered by SEN, J.
The short question involved in this ' appeal on certificate is whether a Division Bench of the Allahabad High Court was right in following the decision of an earlier Division Bench in Barhu Singh & Ors.
vs Kharpattu & Ors.
, [1956] All LJ 87, which was later reiterated in Samheru vs Dharamraj Pandey & Ors., [1969] All LJ 943 (FB), that a usufructuary mortgage of an occupancy holding was not valid as a mortgage with all its incidents and subject to the provisions of law relating to usufructuary mortgages, but was valid only to the limited extent that the mortgagee was entitled only to retain possession of the land mortgaged till there was repayment of the mortgage debt.
The question arose in proceedings in a suit under s.202 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 for possession on payment of the mortgage money brought by respondent No. 1 Bansi claiming himself to be an heir of the original mortgagors Sheo Balak and Ram Phal, on the ground that the appellants who were the successors in interest of the original mortgagee Bhairo Singh, had become asamis and therefore liable to ejectment under s.21(1)(d) of the Act.
The suit was resisted by the appellants on the ground inter alia that the usufructuary mortgage deed dated July 21, 1869 having been executed when the Recovery of Rents (Bengal) Act, 1859 was in force, 598 was a valid one and therefore the fight of redemption stood extinguished in the year 1929 as a result of which the mortgagors Sheo Balak and Ram Phal, the predecessors in interest of the respondents lost all their right, title and interest in the land and thus the appellants could not be treated as asamis liable to ejectment under s.21(1)(d) of the Act but had indeed become sirdars.
That defence of theirs weighed with the Judicial Officer, Varanasi who by his judgment dated May 11, 1960 dismissed the plaintiffs suit.
On appeal by the respondents, the Additional Commis sioner, Varanasi Division, Varanasi by his judgment dated October 10, 1960 decreed the plaintiff 's suit holding that the usufructuary mortgage of occupancy rights was valid only in a qualified sense in that the appellants were entitled to retain possession until the mortgage debt was paid.
The learned Additional Commissioner observed that no tenancy law fight from the Recovery of Rents (Bengal) Act, 1859 to U.P. Tenancy Act, 1939 ever made the occupancy fights transfera ble.
The appellants preferred an appeal to the Board of Revenue but Shri S.N. Mitra, ICS, Judicial Member, Board of Revenue by his judgment and order dated April 25, 1963 dismissed the appeal.
The appellants moved the High Court under article 226 of the Constitution but a learned Single Judge by his judgment dated February 28, 1966 dismissed the writ petition and upheld the order of the Board of Revenue.
On appeal, a Division Bench following the decisions in Khiali Ram vs Nathu Lal, ILR (1893) 15 All 219 (FB), Barhu Singh vs Kharpattu (supra) and Samharu vs Dharamraj Pandey (supra) held that the transaction of the present kind was not a mortgage properly so called but yet was a mortgage within the meaning of s.21(1)(d) of the Act.
Shri Juneja, learned counsel for the appellants, who are successors in interest of the original mortgagee Bhairo Singh strenuously assails the correctness of that view and contends that both the Board of Revenue as well as the High Court failed to appreciate that the usufructuary mortgage of the occupancy holding in question was executed by Sheo Balak and Ram Phal, the predecessors in interest of the respond ents, on Asadh Sudi 12 Samvat 1925, corresponding to July 21, 1860 i.e. at a time when the Recovery of Rents (Bengal) Act, 1859 was in force.
He presses into service certain observations of Sir Richard Couch, CJ in Narendra Narayan Roy Chowdhary vs Ishan Chandra Sen, [1974] 13 Bengal LR 278 for the submission that a usufructuary mortgage was valid under s.6 of that Act.
We find it difficult to accept the contention.
We find that it has been the consistent view of the Allaha bad 599 High Court that a usufructuary mortgage of an occupancy holding was not valid as a mortgage with all its incidents and subject to the provisions of law relating to usufructu ary mortgage but was valid only in a qualified sense i.e. in the sense of subletting with a covenant that the mortgagor will not be entitled to recover possession without payment of the mortgage money, and further that under such a mort gage there is no transfer of the right of an occupancy tenant and consequently no suit for redemption was maintain able nor was there any extinguishment of the right of an occupancy tenant upon the expiry of the period of limitation fixed for redemption under article 148 of the Limitation Act, 1908.
There is a long catena of decisions dealing with the question starting from Khiali Ram vs Nathu Lal (supra) down to Samharu vs Dharamraj Pandey (supra).
It follows that it has been the settled law as administered in the then United Provinces that a usufructuary mortgage of an occupancy holding was invalid and there was no transer of an interest by the occupancy tenant and the mortgage acquired no other right other than the right to retain possession and fall back upon the stipulation in the so called mortgage bond till his money was paid.
As pointed out in the Full Bench decision in Samharu vs Dharamraj Pandey (supra), the view that a usufructuary mortgage by an occupancy tenant was not valid in the eye of law has been accepted by the Legislature in cl.(d) of s.21(1) of the U.P. Zamindari Abolition & Land Reforms Act, 195 1.
The matter stands concluded by the doctrine of stare decisis.
If we were to subscribe to the contention advanced by the learned counsel for the appel lants, it would imply not only unsettling the law which has stood the test time for over 100 years but have the effect of reopening transactions past and closed and unsettling titles all over the State.
We also find no substance in the contention advanced.
There is nothing in s.6 of the Recovery of Rents (Bengal) Act to suggest that a usufructuary mortgage of an occupancy holding like the transaction in question was permissible.
Sir Richard Couch, CJ in the course of his judgment in Narendra Narayan Roy Chowdhary 's case has referred to s.6 of that Act which, in terms, made the holding of an occupancy tenant a non transferable tenure.
After referring to the provision contained in s.6 which provided for conferral of occupancy rights on a ryot who was in cultivating possession of his land for a period of 12 years, the learned Chief Justice unequivocally stated that the occupancy rights were not transferable: "The ordinary construction of the word appears to me to be, that the right is only to be in the person who has 600 occupied for 12 years, and it was not intended to give any right of property which could be transferred.
" After holding that the right of occupancy tenant was not transferable under s.6 of the Act, the learned Chief Justice went on to observe that in case of such a transfer, the tenant would be deemed to have abandoned the holding and therefore the right of an occupancy tenant cannot be set up by the purchaser in defence to a suit for ejectment by the zamindar: "Now, if a ryot having a right of occupancy endeavours to transfer it to another person, and, in fact, quits his occupation, and ceases himself to cultivate or hold the land, it appears to me that he may be rightly consid ered to have abandoned his right, and that nothing is left in him which would prevent the zamindar from recovering the possession from the person who claims under the transfer.
" That very eminent Judge explained this in another way: "(I)f the right which is given by the law is one which exists only so long as he holds or cultivates the land, when he ceases to do that, by selling his supposed right and put ting another in his place, his fight is gone and cannot stand in the way of the landlord 's recovering possession.
" We fail to appreciate how these observations can be of any avail to the appellants.
The view expressed by Couch, CJ that the right of an occupancy tenant under s.6 of the Recovery of Rents (Bengal) Act does not lay down any con trary principle.
As to the question of abandonment, the relationship of the parties was regulated by the stipula tions contained in the mortgage bond and under the terms the appellants were entitled to retain possession till the mortgage debt was paid of.
we wish to point out that under the U.P. Debt Redemption Act, 1940 all usufructuary mort gages became self liquidating mortgages.
As held by the High Court in Ram Prasad vs Bishambhar Singh, AIR 1946 All 400, the mortgage money would be deemed to have been paid off.
For these reasons, the appeal must fail and is dismissed with costs.
N.P.V. Appeal dismissed.

dataset_name: IN-Abs

summary:
The first respondent 's suit under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 for possessing on payment of the mortgage money and ejectment of the appellants under Section 21(1)(d) of the Act was resist ed on the ground that the right of redemption stood extin guished in the year 1929 as the usufructuary mortgage which was executed when the Recovery of Rents (Bengal), Act, 1859 was in force, was a valid one and the mortgagors, the prede cessors in interest of the respondent had lost all their rights titles and interest in the land.
The Judicial Officer dismissed the suit.
On appeal, the Additional Commissioner decreed the first respondent plaintiff 's suit holding that the usufructuary mortgage of occupancy rights was valid only in a qualified sense in that the appellants were entitled to retain posses sion until the mortgage debt was paid and that no tenancy law right from the Recovery of Rents (Bengal) Act, 1859 to U.P. Tenancy Act, 1939 ever made the occupancy rights trans ferable.
The appeal to the Board of Revenue having been dis missed, the appellants moved the High Court under Article 226 and a Single Judge of the High Court dismissed the writ petition and upheld the order of the Board of Revenue.
596 On appeal, the Division Bench held that the transaction of the present kind was not a mortgage properly so called but yet was a mortgage within the meaning of Section 21(1)(d) of the Act.
In appeal to this Court, challenging the correctness of the view of the High Court, it was contended that both the Board of Revenue as well as the High Court failed to appre ciate that the usufructuary mortgage in question was execut ed at a time when the Recovery of Rents (Bengal) Act, 1859 was in force, and that a usufructuary mortgage was valid under Section 6 of the Act.
Dismissing the appeal, this Court, HELD: 1.1 The settled law as administered in the then United Provinces was that a usufructuary mortgage of an occupancy holding was invalid and there was no transfer of an interest by the occupancy tenant and the mortgagee ac quired no right other than the right to retain possession and fail back upon the stipulation in the so called mortgage bond till his money was paid.
[599C D] 1.2 The view that a usufructuary mortgage by an occupan cy tenant was not valid in the eye of law has been accepted by the Legislature in clause (d) of Section 21(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1951 and the matter stands concluded by the doctrine of stare decisis.
To hold otherwise now would imply not only unsettling the law which has stood the test of time for over 100 years but would have the effect of reopening transactions past and closed and unsettling titles.
[599D E] 2.1 There is nothing in Section 6 of the Recovery of Rents (Bengal) Act to suggest that a usufructuary mortgage of an occupancy holding like the transaction in question was permissible.
[599F] 2.2 The right of occupancy tenant was not transferable under Section 6 of the Act and in case of such a transfer the tenant would he deemed to have abandoned the holding and, therefore, the right of an occupancy tenant cannot be set up by the purchaser in defence to a suit for ejectment by the zamindar.
[600B] 3.
In the instant case, the relationship of the parties was regulated by the stipulations contained in the mortgage bond and under the terms the appellants were entitled to retain possession till the mortgage debt was paid off.
Under the U.P. Debt Redemption Act, 1940, all 597 usufructuary mortgages became serf liquidating mortgages.
The mortgage money would be deemed to have been paid off.
[600F G] Narendra Narayan Roy Chowdhary vs Ishan Chandra Sen, [1974] 13 Bengal LR 278; Khiali Ram vs Nathu Lal, ILR [1893] 15 All 219 (FB); Samharu vs Dharamraj Pandey and Ors., [1969] All.
LJ 943 (FB); Barhu Singh & Ors.
vs Kharpattu & Ors., [1956], All LJ 87 and Ram Prasad vs Bishambhar Singh, AIR 1946 All 400, referred to.


judgement:
Civil Miscellaneous Petition No. 19065 of 1987.
IN Civil Appeal No. 1713 of 1987.
From the Judgment and order dated 11.6.1987 in Writ Petition No. 389 of 1981 F. D. Damania, Atul Tewari and Ms. Bina Gupta for the petitioners .
The following order of the Court was delivered: O R D E R The certificate on the basis of which this appeal is filed is issued by a learned Single Judge of the High Court of Bombay under Article 134A of the Constitution in respect of an order passed by him in a Writ Petition in which the employees of the State Bank of India had questioned the right of the management to fix the hours of work and the hours of recess and its right to stagger the period of recess and had prayed for other consequential reliefs.
The learned Single Judge allowed the petition following certain earlier decisions of the High Court rendered by the Division Benches.
He however proceeded to grant a certificate of fitness to file an appeal against his decision before this Court following an earlier order of a Division Bench granting such a certificate in respect of one of those earlier decisions.
He issued the 155 certificate under Article 134A of the Constitution without referring to A the Article under which the appeal could be filed.
Article 134A of the Constitution reads thus: "134A.
Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause ( 1) of article 132 or clause ( 1) of article 133, or clause ( 1) of article 134, (a) may, if it deems fit so to do, on its own motion; and (b) shall, if an oral application is made.
by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause ( 1) of article 132, or clause ( 1) of article 133 or, as the case may be, sub clause (c) of clause (1) of article 134, may be given in respect of that case.
" The certificate contemplated under Article 134A of the Constitution can only be a certificate which is referred to in clause ( 1) of Article 132 or in clause ( 1) of Article 133 or in sub clause (c) of clause ( 1) of Article 134 of the Constitution.
This is quite obvious from the language of Article 134A of the Constitution.
This case does not fall, either under Article 132(1) or under sub clause (c) of Article 134(1) as it neither involves a substantial question of law as to the interpretation of the Constitution nor it is a criminal proceeding.
It can only fall.
if at all, under Article 133(1) of the Constitution.
Article 133 of the Constitution reads thus: "133.
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134A (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said 156 question needs to be decided by the Supreme Court.
(2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause ( 1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.
" Clause (3) of Article 133 says that notwithstanding anything in that Article no appeal shall unless Parliament by law otherwise provides lie to the Supreme Court from the judgment, decree or final order of one Judge of the High Court.
Before the introduction of Article 134A of the Constitution by the Forty fourth Amendment of L) the Constitution there was no express provision in Articles 132, 133 and 134 of the Constitution regarding the time and manner in which an application for a certificate under any of those articles could be made before the High Court.
There was also a doubt as to the power of the High Court to issue a certificate suo motu under any of those articles.
Article 134A was enacted to make good the said deficiencies.
Article 134A does not constitute an independent provision under which a certificate can be issued.
It is ancillary to Article 132(1), Article 133(1) and Article 134(1)(c) of the Constitution.
That is the reason for the use of words "if the High Court certifies under article 134A" in Article 132(1) and Article 133(1) and for the use of words "certifies under article 134A" in Article 134(1)(c).
The High Court can issue a certificate only when it is satisfied that the conditions in Article 132 or Article 133 or Article 134 of the Constitution as the case may be are satisfied.
In the instant case such a certificate could not have been issued by reason of clause (3) of Article 133 of the Constitution by the learned Single Judge.
The fact that in a similar case a certificate had been issued by a Division Bench of the High Court consisting of two Judges in a case decided by the Division Bench did not empower the Single Judge to issue the certificate under Article 133(1) of the Constitution in a case decided by him.
The restriction placed by clause (3) of Article 133 of the Constitution could not be got over by relying upon the order of the Division Bench.
157 We, therefore, revoke the certificate This petition of appeal A may, however, be treated as a Special Leave Petition under Article 136 of the Constitution and posted for preliminary hearing.

summary:
The employees of the State Bank of India filed a writ petition in the High Court, questioning the right of the management to fix the hours of work and of recess and its right to stagger the period of recess, and for other consequential reliefs.
A Single Judge of the High Court allowed the petition, following earlier decisions by the Division Bench of the same High Court, and also granted a certificate of fitness under Article 134A of the Constitution to file an appeal in the Supreme Court, following an earlier order of a Division Bench granting such a certificate in respect of one of those earlier decisions.
Revoking the certificate, this Court, HELD: The certificate contemplated under Article 134A of the Constitution can only be a certificate which is referred to in cl.
(1) of Article 132 or in cl.
(1) of Article 133 or in sub clause (c) of cl.
(1) of Article 134 of the Constitution.
Article 134A does not constitute an independent provision under which a certificate can be issued.
It is ancilliary to Articles 132(1), 133(1) and 134(1)(c).
[155E] The High Court can issue a certificate only when it is satisfied that the conditions in Article 132 or Article 133 or Article 134, as the case may be, are satisfied.
[156F] The instant case does not fall either under Article 132(1) or under sub clause(c) of Article 134(1) as it neither involves a substantial question of law as to the interpretation of the Constitution nor is it a crimi 154 nal proceeding.
It can only fall, if at all, under Article 133(1) and,therefore, the certificate could not have been issued by reason of cl.(3) of Article 133 of the Constitution.
[155E F] The fact that in a similar case a certificate had been issued by a Division Bench of the High Court did not empower the Single Judge to issue the certificate under Article 133(1) in a case decided by him.
The restriction placed by cl.
(3) of Article 133 could not be got over by relying upon the order of the Division Bench.
[156G H] The petition of appeal to be treated as Special Leave Petition under Article 136 of the Constitution and posted for preliminary hearing.
[157A]


judgement:
Civil Appeal No. 2200 of 1987.
From the Judgment and order dated 11 23.4.
1986 of the Gujarat High Court in C.A. No. 953 of 1985.
106 107 Soli J. Sorabjee, M.V. Singhvi, Mrs. Manik Karanjawala, N.J. Mehta, R.F. Nariman, D.M. Shah and Rajan Karanjawala for the Appellant.
Dr. Y.S. Chitale, T.U. Mehta, P.H. Parekh, Suresh Daluja, M.N. Shroff and Girish Chandra for the Respondents.
The following order of the Court was delivered: O R D E R Special leave granted.
Ordinarily in a matter of this jurisdiction under Article 136 of the Constitution would not have been permitted to be invoked but having heard learned counsel for the parties we are of the view that in the facts and circumstances of this matter, the order of the High Court should be reversed by allowing the appeal.
The appellant, a nationalised Bank, obtained a decree in Civil Suit No. 1169 of 1977 from the City Civil Court at Ahmedabad against several defendants including the State of Gujarat.
So far as the defendant State is concerned, the decree ran thus: "The suit is partly decreed against the defendant No. 3 and the defendant No. 3 is ordered to pay Rs.59,69,422.59 to the plaintiff with interest at the rate of 6% from the date of the suit till realisation of the amount by the plaintiff.
The defendant No. 3 shall pay the proportionate costs of the suit to the plaintiff and bear its own . . .
The State of Gujarat has filed a First Appeal in the High Court of Gujarat being First Appeal No. 1993 of 1983 against the decree and it is pending disposal.
An application for stay of execution of the operation of the decree was filed by the State of Gujarat being C.A. No. 953 of 1985 but before any order was made thereon, the appellant decree holder levied execution of the decree in Execution Application No. 240 of 1985.
On 5th of March, 1986, the State Government deposited the decreetal amount of Rs.88,92,280 in the Executing Court and moved the High Court for an order of stay of further proceedings in execution and for restraining the decree holder from withdrawing the amount from the Executing Court by alleging that in the event of 108 reversal of the trial court 's decree in appeal it would be difficult for the State Government to recover the amount.
On 21st of March, 1986, the High Court passed an order of stay of execution in the pending application, C.A., 953 of 1985, and on the 23rd of April, 1986, the impugned order was made directing refund of the amount deposited by the State Government in the Executing Court.
Challenge is to the order directing refund.
Order 41 Rule 5(1) of the Code of Civil Procedure provides: "An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been prefer red from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
Explanation . . . . . . . ".
In the absence of an order of stay the decree was executable and the judgement debtor deposited the decreetal dues in the Executing Court.
Once the decreetal dues had come into the executing court there was indeed no justification for the direction to refund the same to the judgment debtor.
On the other hand, the High Court could in its discretion either direct payment of the amount to the decree holder subject to terms safeguarding the interest of the judgment debtor in the eventuality of reversal of the decree or direct the amount to be deposited or invested on terms of interest so that on the disposal of the First Appeal appropriate directions could be given.
In the impugned order which in the setting of the matter appears to be long one, the High Court has referred to many aspects which perhaps were not necessary but we do not propose to go into the same.
We allow the appeal, reverse the order of refund and direct that the amount shall be paid to the decree holder subject to the condition that in the event of the decree of the trial court being reversed the appellant Bank would redeposit the amount in the executing court within two weeks of the date of the reversal along with 18 per cent of interest on the amount from the date the money is withdrawn till the date of depositing.
The appellant is a nationalised bank and we see no justification to demand any security from it.
There will be no order for costs.
109 Learned counsel for the State of Gujarat contended that the A State is facing acute drought condition and is looking for funds to meet the emergency.
This of course was stated as a ground in support of the plea that the refund directed by the High Court should not be reversed.
In case the State looks for funds, we are sure, the appellant Bank would consider favourably the request for accommodation on appropriate terms.
H.L.C. Appeal allowed.

summary:
The respondent filed a first appeal in the High Court against a decree and an application for stay of its operation.
Before any order was made in the stay application, the appellant, who was the decree holder, levied execution, pursuant to which the respondent deposited the decretal amount in the executing court.
The respondent moved the High Court for an order stay of further proceedings in execution.
The High Court passed an order of stay in the application already pending before it and directed refund of the amount deposited in the executing court to the respondent.
The appellant challenged the order of refund.
Allowing the appeal, ^ HELD: In the absence of an order of stay under 0.41, r. S(l) C.P.C., the decree was executable and the judgment debtor deposited the decretal dues in the executing court.
Once the decretul dues had come into the executing court there was indeed no justification for the direction to refund the same to the judgment debtor.
On the other hand, the High Court could in its discretion either direct payment of the amount to the decree holder subject to terms safeguarding the interest of the judgment debtor in the eventuality of reversal of the decree or direct the amount to be deposited or invested on terms of interest so that on the disposal of the First Appeal appropriate directions could be given.
[108D F]


judgement:
Civil Appeal No. 2223 of 1987.
From the Judgment and order dated 21.8.1986 of the Andhra Pradesh High Court in C.R.P. No. 1518 of 1985.
A.K. Ganguli and A. Mariarputham for the Appellant.
G. Narasimhulu for the Respondent.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave brought from the judgment and order of the High Court of Andhra Pradesh dated August 21, 1986 raises a question of general importance.
The High Court has upheld the judgment of the Chief Judge, City Small Causes Court dated April 29, 1985 directing the eviction of the appellant from the demised premises under section 10(2)(vi) of the Andhra Pradesh Buildings (Lease, Rent 148 & Eviction) Control Act, 1960.
The question is whether the appellant was estopped from denying the title of the lessor under section 116 of the Evidence Act, 1872 despite the fact that there was threat of eviction by the owner of the demised premises one Krishnamurthy i.e. the person having title paramount.
There is no material point of fact which is now in dispute.
The demised premises which is a removable wooden cabin or kiosk located at one corner of a building belonging to one Krishnamurthy was let out on a rent of Rs. 6 per day which later was increased to Rs. 10, by the respondent P. Jagadish, son of the original tenant P.R.N. Upadhyaya on March 9, 1977.
Admittedly, the main premises i.e. the building was demised by Krishnamurthy to the said P.R.N. Upadhyaya in the year 1972 and in course of time he had sublet different portions of the premises to different persons.
By a notice dated November 8, 1980 the head lessor Krishnamurthy served a notice of eviction on the appellant and other sub tenants alleging that there was unlawful subletting by the lessee and that he had decided to terminate the tenancy of the tenant Upadhyaya with the expiry of that month i.e. by the end of December 1980.
Thereupon, the appellant on December 4, 1980 was constrained to attorn in favour of the original lessor Krishnamurthy agreeing to pay him a rent of Rs.300 per month.
Evidently, the appellant had paid rent to the respondent upto March 31, 1980.
After becoming a direct tenant under the head lessor Krishnamurthy, the appellant stopped paying rent to the respondent w.e.f. April 1, 1980.
On March 13, 1981 the respondent asserting to be the lessor commenced proceedings for eviction of the appellant from the demised premises under section 10(2)(i) and (vi) and 10(3)(b)(iii) of the Act i.e. On the ground that the appellant was in wilful default in payment of rent, that there was denial of title on his part and for his bona fide requirement.
The First Additional Rent Controller, Hyderabad by order dated November 3, 1982 disallowed the application on the ground that the respondent not being the lessor had no locus standi to initiate the proceedings for eviction.
On appeal, the Chief Judge, City Small Causes Court, Hyderabad by judgment dated April 29, 1985 reversed the order of the learned Rent Controller and directed the eviction of the appellant under section 10(2)(i) and (vi) holding that the premises in question was a building within section 2(iii) of the Act and that in view of the denial of his title as well as admitted non payment of rent, the appellant was estopped from denying the title.
That decision of his has been upheld by a learned Single Judge of the High Court by the judgment under appeal.
The judgment of the High Court mainly rests on the rule of estoppel.
149 The appeal must be allowed on the short ground that there being a threat of eviction by a person claiming title paramount i.e. head lessor Krishnamurthy, the appellant was not estopped under section 116 of the Evidence Act from challenging the title and his right to maintain the eviction proceedings of the respondent P. Jagadish as the lessor.
section 116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.
Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession.
The words "during the continuance of the tenancy" have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy.
The rule of estoppel is thus restricted not only in extent but also in time i.e. restricted to the title of the landlord and during the continuance of the tenancy; and by necessary implication, it follows that a tenant is not estopped, when he is under threat of eviction by the title paramount, from contending that the landlord had no title before the tenancy commenced or that the title of the landlord has since come to an end.
The rule of estoppel embodied under section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord 's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord.
During the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord 's title by mere assertion of such a right to the knowledge of the landlord.
See: Bilas Kumar vs Desraj Ranjit Singh ILR (1915) 37 All 557 (PC) and Atyam Veerraju & Ors.
vs Pechetti Venkanna & ors., [19661 1 SCR 83 1.
The general rule is however subject to certain exceptions.
Thus a tenant is not precluded from denying the derivative title of the persons claiming through the landlord.
See: Kumar Krishna Prosad Lal Singha Deo vs Baraboni Coal Concern Limited & orS., Similarly, the estoppel under section 116 of the Evidence Act is restricted to the denial of the title at the commencement of the tenancy.
From this, the exception follows, that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the 150 title of the landlord came to an end or that he was evicted by a A paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder.
In order to constitute eviction by title paramount, it has been established by decisions in England and in India, that it is not necessary that the tenant should be dispossessed or even that there should be a suit in ejectment against him.
It will be sufficient if there was threat of eviction and if the tenant as a result of such threat attorns to the real owner, he can set up such eviction by way of defence either to an action for rent or to a suit in ejecment.
If the tenant however gives up possession voluntarily to the title holder, he cannot claim the benefit of this rule.
When the tenancy has been determined by eviction by title paramount, no question of estoppel arises under section 116 of the Evidence Act.
See: Adyanath Chatak vs Krishna Prasad Singh & Anr., AIR (1949) PC 124.
The principle must equally apply when the tenant has attorned under a threat of eviction by the title paramount and there comes into existence a new jural relationship of landlord and tenant as between them.
The law is stated in 27 Halsbury 's Laws of England, 4th edn., para 238: "238.
Eviction under title paramount.
In order to constitute an eviction by a person claiming under title para mount, it is not necessary that the tenant should be put out of possession, or that proceedings should be brought.
A threat of eviction is sufficient, and if the tenant, in consequence of that threat, attorns to the claimant, he may set this up as an eviction by way of defence to an action for rent, subject to his proving the evictor 's title.
There is no eviction, however, if the tenant gives up possession voluntarily. " Quite recently, this Court in Mangat Ram & Anr.
vs Sardar Meharban Singh & ors.
, , to which one of us was a party, observed: "The estoppel contemplated by section 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end.
See also: Fida Hussain vs Fazal Hussain & Ors., AIR (1963) MP 232, K.S.M. Guruswamy Nadar vs N.G. Ranganathan, AIR (1954) Mad.
151 402, S.A.A. Annamalai Chettiar vs Molaiyan & Ors., AIR (1970) Mad.
396 and Chidambara Vinayagar Devasthanam vs Duraiswamy, ILR In the premises, the High Court as well as the learned Chief Judge of the City Small Causes Court were clearly in error in allowing the proceedings brought by the respondent under section 10(2)(i) and (vi) of the Act by relying on the rule of estoppel embodied in section 116 of the Evidence Act.
The judgment of the High Court cannot be sustained for the reason that there is no finding that the dispute as to title was not bona fide in terms of section 10(2)(i) and further inasmuch as the appellant could not be treated to be in arrears of rent since he has been paying rent to the head lessor Krishnamurthy after the attornment of the tenancy to him.
The terms of section 10(2)(i) and (vi) of the Act are set out below: " 10.
Eviction of tenant (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied (i) that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or (vi) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide.
the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application.
" The High Court failed to appreciate that there could be no order of termination in terms of section 10(2)(i) unless it could be said that in the facts and circumstances of the case the dispute as to title was not bona fide.
It cannot be said having regard to the fact that the appellant was under threat of eviction by the title paramount, that the rule of estop 152 pel under section 116 of the Evidence Act applied and therefore he was not entitled to dispute the title of the respondent.
Furthermore, the appellant having on December 4, 1980 after being served with the notice of eviction attorned to the head lessor, there came into existence a direct tenancy.
It has been brought to our notice that the appellant has since that date been paying rent to his present lessor Krishnamurthy and is not in arrears of rent.
The order of eviction passed by the learned Chief Judge as well as the High Court against the appellant under section 10(2)(i) and (vi) of the Act is not sustainable in law.
In the result, the appeal succeeds and is allowed.
The proceedings for eviction of the appellant from the demised premises under section 10(2)(i) and (vi) and 10(3)(b)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 are quashed.
No costs.
P.S.S. Appeal allowed.

summary:
The appellant was a sub tenant of the tenant respondent.
The landlord served a notice of eviction on him in November, 1980 alleging that there was unlawful subletting by the respondent and that he had decided to terminate the tenancy with the expiry of that month.
The appellant thereupon attorned in favour of the landlord agreeing to pay him the rent.
After becoming the direct tenant, the appellant stopped paying rent to the respondent.
The respondent asserting to be the lessor commenced proceedings for eviction of the appellant under section 10(2)(i) and (vi) and section 10(3)(b)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Act, 1960 on the ground that the appellant was in wilful default in payment of rent, that there was denial of title on appellant 's part, and that he required the premises bona fide for his use.
F The Rent Controller disallowed the application on the ground that the respondent not being a lessor had no locus standi to initiate the proceedings for eviction.
The first appellate court, however, directed eviction of the appellant under section 10(2)(i) and (vi), holding that in view of the denial of respondent 's title as well as non payment of rent, the appellant was estopped from denying the title.
The High Court having upheld this view, the appellant appealed to this Court by special leave.
Allowing the appeal, ^ HELD: 1.
There could be no order of termination in terms of section H 146 10(2)(i) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act unless it could be said that in the facts and circumstances of the case the dispute as to title was not bona fide.
In the instant case, there is no such finding by the High Court.
Furthermore, the appellant could not be treated to be in arrears of rent since he has been paying rent to the head lessor.
Therefore, the order of eviction passed against the appellant under section 10(2)(i) and (vi) of the Act is not sustainable in law.
[151G; 152B] 2.1 The rule of estoppel embodied under section 116 of the Evidence Act is that a tenant who has been let into possession cannot deny his landlord 's title at the commencement of the tenancy, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord.
During the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord 's title by mere assertion of such a right to the knowledge of the landlord.
The words 'during the continuation of the tenancy ' occurring in section 116 of the Evidence Act mean "during the continuance of the possession that was received under the tenancy in question.
" The rule of estoppel is thus restricted not only in extent but also in time, i.e., restricted to the title of the landlord and during the continuance of the tenancy.
[149E F; C D] 2.2 The general rule of estoppel under section 116 is, however, subject to certain exceptions, in that, a tenant is not precluded from denying the derivative title of the persons claiming through the landlord.
Similarly, such estoppel is restricted to the denial of the title at the commencement of the tenancy, it is open to the tenant even without surrendering possession to show that since the date of tenancy the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder.
[149G H; 150A B] 2.3 In order to constitute eviction by title paramount it is not necessary that the tenant should be dispossessed or even that there should be a suit of ejectment against him.
It will be sufficient if there was threat of eviction and if the tenant as a result of such threat attorns to the real owner, he can set up such eviction by way of defence either to an action for rent or to a suit in ejectment.
If the tenant, however, gives up possession voluntarily to the title holder, he cannot claim the benefit of this rule.
When the tenancy has been determined by eviction by title paramount, no question of estoppel arises under section 116 of the Evidence 147 Act.
The principle must equally apply when the tenant has attorned under a threat of eviction by the title paramount and there comes into existence a new jural relationship of landlord and tenant as between them.
[150B D] In the instant case, having regard to the fact that the appellant was under threat of eviction by the title paramount, it cannot be said that the rule of estoppel under section 116 of the Evidence Act applied and therefore, he was not entitled to dispute the title of the respondent.
Furthermore, the appellant having, after being served with the notice of eviction, attorned to the head lessor, there came into existence a direct tenancy.
[151H; 152A B] Bilas Kunwar vs Desraj Ranjit Singh, ILR (1915) All.
557 (PC); Atyam Veerraju & ors.
vs Pechetti Venkanna & Ors., ; ; Kumar Krishna Prosad Lal Singha Deo vs Baraboni Coal Concern Limited & ors., ; Adyanath Ghatak vs Krishna Prasad Singh & Anr., AIR (1949) PC 124; 27Halsbury 's Laws of England, 4th Edn., pars 238; Mangat Ram & Anr.
vs Sardar Meharban Singh & ors.
, , Fide Hussain vs Fazal Hussain & ors.
, AIR (1963) MP 232; K.S.M. Curuswamy Nadar vs N.G. Ranganathan, AIR (1954) Mad, 402; S.A.A. Annamalai Chettiar vs Molaiyan & ors.
, AIR (1970) Mad. 396 and Chidambara Vinayagar Devasthanam vs Duraiswamy, ILR , referred to,


judgement:
Civil Appeal No. 2224 of 1987.
From the Judgment and order dated 19.6.1986 of the Calcutta High Court in Civil order No. 2278 of 1985.
S.N. Kacker and Sukumar Ghosh for the Appellants.
A.K. Sen, D.N. Mukherji, Ranjan Choudhary, N.R. Choudhary for the Respondents.
The Judgment of the Court was delivered by 121 SABYASACHI MUKHARJI, J.
Special leave granted.
This appeal is directed against the judgment and order of the High Court of Calcutta dated 19th of June, 1986 in Civil order No. 2278 of 1985.
On or about 11th of June, 1977 an unregistered deed of agreement between the four brothers being the appellants Nos. 1 to 4 and their eldest brother, respondent No 1 was entered into regarding partition of joint movable and immovable properties and the same were referred to three arbitrators; namely, three appellants Nos.
5, 6 and 7 herein.
On or about 2nd of July, 1977 the same agreement was re written on a fresh stamp paper and the same was registered by which the abovenamed arbitrators were given the option to take assistance of one, two or more persons.
The dispute related to certain properties among the brothers in Chinsurah the district of Hooghly in the State of West Bengal.
The three arbitrators took the assistance of appellant No. 8 and he functioned and acted as one of the arbitrators.
On or about November 28, 1977 the arbitrators explained their award to the parties and made and signed the award.
On or about 1st December, 1977 the eldest brother filed an application under section l l of the (hereinafter called 'the Act ') before the learned Munsif, Arambagh being Misc.
Case No. 74 of 1977.
The appellants Nos.
I to 4 filed an application under section 14 of the Act before the learned Sub Judge, Hooghly at Chinsurah praying for a direction on the arbitrator to file the award in the court in Misc.
Case No. 28 of 1977.
The arbitrators filed the award before the learned Sub Judge Hooghly at Chinsurah on 28th of January, 1978.
On 26th of July, 1978 the learned Munsif, Arambagh ordered interim injunction on the parties including the arbitrators to maintain status quo till the disposal of Misc.
Case No. 74 of 1977 initiated by the appellant No. l. On 14th of August, 1978 the arbitrators made an application before the learned Sub Judge, Hooghly at Chinsurah to return back the award to enable them to present the same before the Sub Registrar for registration.
On 2nd September, 1978, the learned Sub Judge fixed the hearing of the arbitrators ' application to return the award to them.
In January, 1980 the arbitrators ' application was heard and the learned Sub Judge ordered return of the award to the arbitrators to enable them to present the same for registration.
The High Court of Calcutta in Civil Rule No. 621 of 1980 on 6th March, 1981 set aside the aforesaid order of the learned Sub Judge holding that during the subsistence of the interim injunction order on the arbitrators to maintain status quo the arbitrators could not take 122 back the award for presenting the same for registration.
The High Court ordered that the arbitrators ' application dated 14th of August, 1978 should be kept pending and be heard when the injunction order was vacated.
On 20th December, 1982 the learned Munsif, Arambagh dismissed Misc.
Case No. 74 of 1977 and the interim injunction order ipso facto was discharged.
The arbitrators therefore, renewed their prayer before the learned Sub Judge to return the award.
On 25th of February 1983 the learned Sub Judge dismissed the arbitrators ' application and did not direct return of the award holding that the limitation for the registration of the award had already expired.
The High Court in Civil order No. 589 of 1983 on 19th of September, 1983 directed the learned Sub Judge to return back the award to the arbitrators holding that it was the Registrar and not the Sub Judge who could determine the question of limitation for the purpose of registration of the award.
The learned Sub Judge.
Hooghly at Chinsurah on 23rd of November, 1983 ordered returning back of the award to the arbitrators.
On 24th of November, 1983 the arbitrators got back the award from the court.
On 25th November, 1983 i.e., the very next day the arbitrators presented the award before the Sub Registrar, Arambagh for registration.
The Sub Registrar, Arambagh on 25th of November, 1983 registered the award.
The High Court in Civil order No. 9696(W) of 1984 on 24th July, 1984 had sent back the award to the Sub Registrar to reconsider the question of limitation and found that the award was presented within time as the period during which the judicial proceedings were pending, namely, 28th of January, 1978 to 24th of November, 1983 should be excluded in view of the principle laid down under section 15 of the .
On 19th June, 1986 by the judgment and order impugned the High Court quashed the registration under Article 227 of the Constitution holding that the award had been presented for registration beyond time.
It is the validity and propriety of that order which is under challenge in this appeal.
The limitation period for registration is four months from the date of its execution.
The award was made on 28th of November, 1977 and it was presented for registration to the Sub Registrar on 25th of November, 1983.
Section 23 of the (hereinafter called 'the ') stipulates that the time for registration is four months from the date of its execution.
Section 25(1) of the provides that if, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, is not presented for registration till after the expiration of the time hereinbefore prescribed, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on pay 123 ment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration.
Sub section (2) of section 25 provides that any application for such direction may be lodged with a Sub Registrar? who shall forward the same to the Registrar.
Therefore the cumulative effect of sections 23 and 25 read together is that total period of eight months is available for registration if the conditions are fulfilled.
The High Court had held that in this case the award has been registered after six years and as such was beyond time.
It was held before the High Court that no registration was permissible beyond the period fixed under section 25 read with section 23 of the and any registration beyond such period would be void.
But in this case admittedly the award was in the court of the learned Munsif from 28th of January, 1978 to 24th of November, 1983.
Therefore, this period, that is to say, from 28th January 1978 to 24th November, 1983 the award was in court and this was manifest from the order in Misc.
Case No. 28 of 1977.
The arbitrators had made an application on or about 14th August 1974 for return of the award but that was not done.
Furthermore, there was an injunction on 26th July, 1978 which was only vacated on 20th December, 1982.
We have to bear in mind two maxims of equity which are well settled, namely, "ACTUS CURIAE NEMINEM GRAVABIT" An act of the Court shall prejudice no man.
In Broom 's Legal Maxims.
10th edition, 1939 at page 73 this maxim is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law.
The above maxim should, however, be applied with caution.
The other maxim is "LEX NON COGIT AD lMPOSSIBILIA" (Broom 's Legal Maxims P. 162) The law does not compel a man to do that which he cannot possibly perform.
The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases.
In this case indisputably during the period from 26th of July, 1978 to 20th December, 1982 there was subsisting injunction preventing the arbitrators from taking any steps.
Furthermore, as noted before the award was in the custody of the court, that is to say, 28th of January, 1978 till the return of the award to the arbitrators on 24th of 124 November, 1983, the arbitrators or the parties could not have presented the award for its registration during that time.
The award as we have noted before was made on 28th of November, 1977 and before the expiry of the four months from 28th November, 1977, the award was filed in the court pursuant to the order of the court.
It was argued that the order made by the court directing the arbitrators to keep the award in the custody of the court was wrong and without jurisdiction, but no arbitrator could be compelled to disobey the order of the court and if in compliance or obedience with court of doubtful jurisdiction, he could not take back the award from the custody of the court to take any further steps for its registration then it cannot be said that he has failed to get the award registered as the law required.
The aforesaid two legal maxims the law does not compel a man to do that which he cannot possibly perform and an act of the Court shall prejudice no man would, apply with full vigour in the facts of this case and if that is the position then the award as we have noted before was presented before the Sub Registrar, Arambagh on 25th November, 1983 the very next one day of getting possession of the award from the court.
The Sub Registrar pursuant to the order of the High Court on 24th of June,1985 found that the award was presented within time as the period during which the judicial proceedings were pending that is to say, from 28th of January, 1978 to 24th of November, 1983 should be excluded in view of the principle laid down in section 15 of the .
The High Court, therefore, in our opinion, was wrong in holding that the only period which should be excluded was from 26th July, 1978 till 20th December, 1982.
We are unable to accept this position.
26th July, 1978 was the date of the order of the learned Munsif directing maintenance of status quo and 20th of December, 1982 was the date when the interim injunction was vacated, but still the award was in the custody of the court and there is ample evidence as it would appear from the narration of events hereinbefore made that the arbitrators had tried to obtain the custody of the award which the court declined to give to them.
The principles enunciated by this Court in Nityananda M. Joshi and others vs Life Insurance Corporation of India and others; , would have no application to the facts of this case.
It was urged before us that an award affecting the immovable properties which was not registered and which was made outside the court could not form the basis of an award and an unregistered award, in other words could not form the basis of the award.
We are unable to accept that position.
There is no dispute to the proposition that an award affecting immovable properties as in the instant case should be 125 registered.
It is therefore, not necessary to discuss in detail the ratio of A the decision of the Full Bench of the Andhra Pradesh High Court in M. Venkataratnam vs M. Chelamayya, A.I.R. 1967 Andhra Pradesh In the aforesaid view of the matter the judgment and order of the High Court cannot be sustained and are set aside.
The appeal is allowed and the order of the Sub Registrar, Arambagh dated 24th of June, 1985 is restored.
In the facts and circumstances of the case, however, the parties are directed to pay and bear their own costs.
N.P.V. Appeal allowed.

summary:
An agreement was entered into by appellants Nos. 1 to 4 and respondent No. 1 regarding partition of joint movable and immovable properties.
A dispute arose relating to certain properties, which was referred to arbitration.
The arbitrators made their award on November 28, 1977, which was filed by them before the Sub Judge on January 28, 1978, pursuant to the application made by appellants Nos. 1 to 4 under section 14 of the Act.
On December 1, 1977, respondent No. I had filed an application under section 11 of the , before the Munsif, who passed an injunction order on July 26, 1978, for maintaining status quo till the disposal of the said application.
On the application made by the arbitrators on 14th August, 1978, the Sub Judge ordered on September 2, 1978, the returning back of the award to the arbitrators, to enable them to present the same for registration before the Sub Registrar.
The High Court in appeal set aside the above order holding that during the subsistence of the interim injunction to maintain status quo, the arbitrators could not take back the award for presenting it for registration.
and ordered that the arbitrators ' application be kept pending and 119 heard when the injunction order was vacated.
On December 20, 1982 the Munsif dismissed the case of the respondent No. 1 and that interim injunction ipso facto was discharged.
Thereafter, the Subordinate Judge dismissed the application of the arbitrators for returning of the award, holding that limitation for registration of the award had already expired.
The High Court, in appeal, directed the Subordinate Judge to return back the award, holding that it was the Registrar and not the Sub Judge who could determine the question of limitation for the purpose of registration of the award.
On November 24, 1983, the arbitrators got back the award and the next day presented it before the Sub Registrar and the award was registered the same day.
The High Court on a petition by respondent No. 1 challenging the registration sent back the award to the Sub Registrar to re consider the question of limitation.
The Sub Registrar found that the award was presented within time as the period during which the judicial proceedings were pending, namely, 28th January, 1978 to 24th November, 1983, should be excluded in view of section 15 of the .
Against the aforesaid decision, respondent No. 1 filed an application before the High Court which, by the impugned order, quashed the registration and held that the award had been presented for registration beyond time.
In the appeal by special leave, the validity and propriety of the aforesaid order was challenged.
Allowing the appeal by special leave, this Court, ^ HELD: Under the , the limitation period for registration is four months from the date of execution and in cases where the delay in presentation does not exceed four months, such document could be accepted for registration, on payment of fine.
The cumulative effect of sections 23 and 25 read together is that a total period of eight months is available for registration, if the conditions requisite are fulfilled.
[122G; 123A B] G In the instant case, the award was made on November 28, 1977 and before the expiry of four months, it was filed in the court pursuant to the order of the court.
During the period from July 26, 1978 to December 20, 1982, there was subsisting injunction preventing the arbitrators from taking any steps.
Furthermore, as the award was in H 120 the custody of the court from January 28, 1978 till the return of the award to the arbitrators on November 24, 1983, the arbitrators or the parties could not have presented the award for its registration during that time.
The award was presented before the Sub Registrar on November 25, 1983 the very next day of getting possession of the award from the court.
The Sub Registrar, pursuant to the order of the High Court, found that the award was presented within time as the period during which judicial proceedings were pending from January 28, 1978 to November 24, 1983 should be excluded in view of the principle laid down in section 15 of the Act.
[123G H; 124A,D E] The High Court was, therefore, wrong in holding that the only period which should be excluded was from 26th January, 1978, the date of the order of the Munsif directing maintenance of status quo till 20th December, 1982, the date when the interim injunction was vacated.
The award was still in the custody of the court and there was ample evidence that the Arbitrators had tried to obtain the custody of the award which the court declined to give to them.
[124E G] The two legal maxims LEX NON COGIT AU IMPOSSIBILIA, and ACTUS CURIAE NEMINEM GRAVABIT the law does not compel a man to do that which he cannot possibly perform, and an act of the Court shall prejudice no man would apply with full vigour in the facts of this case.
[124C] Nityananda M. Joshi and others vs Life Insurance Corporation of India and others, [1970] I S.C.R. 396, distinguished.
M. Venkataratnam vs M. Chelamayya, A.I.R. 1967 Andhra Pradesh 257 referred to.