# NAHAIN DAS v. THE STATE OF UTTAR PRADESH

- **Citation:** [1961] 1 S.C.R. 676
- **Court:** Supreme Court of India
- **Decided:** 1959-05-14
- **Bench:** JAFER lMA)I, A. K. SARKAR a.nd Il.AOHUBAR DAYAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nahain-das-v-the-state-of-uttar-pradesh-2210
- **Pages:** 5

## Headnote

Affeul-l'orum-Single ]11d~c of llig/1 Courl ·cxmisi11~ cfril
jurisdtclion refusing to file rnn1ple1i11t --Appeal, if lio tu Supreme
Court-Code of Crimi11al Procedure, 1898 (V of 1898). ss. 195 1111d
476-B.
During the pendency of a.civil writ petition in the Al!ali<tbad High Court one N moved an application under s. 476, Code
of Criminal Procedure, for making a complaint under s. 193,
Indian Penal Code, against T. A single Judge who was seized of
the case rejected the application. Thereupon N presented an
appeal against the order ol. rejection of his application before
the Supreme Court under s. 4j6·B, Code of Criminal Procedure.
Held, that the appeal did 110'. lie to the Supreme Court but
that it lay to the Appellate Bench of the High Court.
The
tltcrees of a single Judge of the High Court exercising civil
jurisdiction were ordinarily appcalable to the lligh Colli t under
cl. 10 of the Letters Patent of the Allahabad High Court read
with cl. 13 of the l'. P. High Courts (Amalgamation) Order,
1948, and as such the Court constituted by the single Judge
was a court subordinate to the Appellate Bench of the High
Court within the meaning of s. 195(3) of the Code.
M. S. Sl1crij} v. Tile Sl<1lc of Madras, [1954] S.C.l<. 1 q4.
<listing uished.
1 S.C.R. SUPREME COURT REPORTS
677

## Text

Tlie 8111Jio11 6G,oit1 Exclso11g1
Ltd, ~ Otlit's
••
The State nf
l'uttjab
Das Gupta ].
Stpltmbtr 14.
676
SCPTIE~IE COU!tT REPORTS
[1961]
respondent undur thiR Act a.rn also void and unconstitu.
tiuna.l, a.nd that & mandamus do issue directing the
respondent to a.How the petitioners to carry on the
bu8ine8s of forward rontre.ots or a.s oommis~ion a.gents
for forwa.rd oontra.ots unrrstricled by the provisions
of the sa.id Punjab Forward Contra.ots Ta.x Act No. VII
of I !J51 a.ml the ruleH thereunder and not to enforce
the provisions of thiH Act and the rules.
The a.ppella.nts will get t,heir costs in this Court as
also in the court below.
Ap11eul allowed.
NAHAIN DAS
v.
THE STATE OF UTTAR PRADESH
(JAFER lMA)I, A. K. SARKAR a.nd Il.AOHUBAR
DAYAL, JJ,)
Affeul-l'orum-Single ]11d~c of llig/1 Courl ·cxmisi11~ cfril
jurisdtclion refusing to file rnn1ple1i11t --Appeal, if lio tu Supreme
Court-Code of Crimi11al Procedure, 1898 (V of 1898). ss. 195 1111d
476-B.
During the pendency of a.civil writ petition in the Al!ali<tbad High Court one N moved an application under s. 476, Code
of Criminal Procedure, for making a complaint under s. 193,
Indian Penal Code, against T. A single Judge who was seized of
the case rejected the application. Thereupon N presented an
appeal against the order ol. rejection of his application before
the Supreme Court under s. 4j6·B, Code of Criminal Procedure.
Held, that the appeal did 110'. lie to the Supreme Court but
that it lay to the Appellate Bench of the High Court.
The
tltcrees of a single Judge of the High Court exercising civil
jurisdiction were ordinarily appcalable to the lligh Colli t under
cl. 10 of the Letters Patent of the Allahabad High Court read
with cl. 13 of the l'. P. High Courts (Amalgamation) Order,
1948, and as such the Court constituted by the single Judge
was a court subordinate to the Appellate Bench of the High
Court within the meaning of s. 195(3) of the Code.
M. S. Sl1crij} v. Tile Sl<1lc of Madras, [1954] S.C.l<. 1 q4.
<listing uished.
1 S.C.R. SUPREME COURT REPORTS
677
CRIMINAL APPELLATE JURISDICTION: In the matter
of ma.inta.ina.bility of appeal in the Supreme Court of
India..
Mohan Lal Agarwala, for the petitioner.
G. 0. Mathur and 0. P. Lal, for the respondent
No. 1.
1960. September 14. The Judgment of the Court
was delivered by
RAGHUBAR DAYAL J.-Na.rain Da.s filed ·S. civil
writ p<'tition under Art. 226 of the Constitution in the
High Court of Judicature at Allahabad. He subsequently moved an application under s. 4 76 of the Code
of Criminal Procedure (hereinafter called the Code) for
making a complaint under s. 198, Indian Penal Code,
against Phanish Tripathi alleging that a certain statement in an affidavit filed by the latter was false. The
learned Judge who heard this application, holding
that the appellant had riot succeeded in showing that
any portion of the affidavit of Tripathi filed on May
14, 1959, was false, dismissed the same. It is against
this order of the learned Judge of the High Court that
Narain Das has filed this memorandum of appeal
under s. 476B of tho Code. The Registry has submitted the memorandum of appeal with a report for determining the question whether the app~al is competent
in this Court.
Section 476 of the Code is to be found in Ch. XXXV
which is headed ' Proceedings in case of certain
Offences Affecting the Administration of Justice '.
Section 476 empowers any Civil, Revenue or Criminal
Court, when it is of the opinion that it is expedient in
the interests of justice that an inquiry should be made
into any offence referred to in s. 195(1) (b) or (c) which
appears to have been committed in or in relation to a
proceeding before it, to file a complaint, after such
inquiry as it thinks necessary, before a. Magistrate of
I Class having jurisdiction. It is clear therefore that
where an offence referred to in s. 195(1) (b) or (c) is
committed in or in relation to a proceeding in a. Civil
Court, a.n inquiry under s. 476 a.nd the action taken
1.Varain Das·
v.
The Stale of
Uttar Pradesh
Raghubar
Dayal ].
,\'arain Das
v.
Tht State of
Uttar Pradesh
llaghubar
"Dayal j.
678
SUPREME COURT REPORTS
[ 1961]
on that inquiry by the Civil Court, a.re in relation to
that proceeding itsdf.
Any person aggrieved by an order c1f a Court under
s. 476 of the Code may appeal in view of s. 476B to
the Court to which the former C'ourt is subordinate
within the meaning of s. 195(3), which providPs that
for the purposes of t.he section a. Court she.II be deemed
to be subordinate to the Court to which a.ppee.ls
ordinarily lie from the appealable decrees or sentences
of such former Court, or, in the case of a Civil Court
from whose decrees no appeal ordinarily lieR, to the
principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction
such Civil Court is situate. The decrees of a single
Judge. of the High Court exercising ci\·il jurisdict,ion
are ordinarily appealable to the High Court under
cl. IO of the Letters Patent of the Allahabad High
Court read with cl. 13 of the United Provinces High
Courts (Amalgamation) Order, 1948.
It is true that
the decision of a single ,Judge of the High Court is as
much a decision of the High Court as the decision of
the appellate Bench hearing appeals against his
decrees. But the Court constituted by the single J u<lge
is a Court subordinate to the O.J'pellate Hench of the
High Court. in view of the artificial judicial subordination created by the provisions nfs. 195(3) to the etTeot
'a Court shall be deemed to be suhordinate to the
Court to which appPals ordi11arily lie from the appealable decrees ... '.
In the case of a Civil Court which
passes appealablo decrees, that Court is deemed to be
8ubor<linate to the Court to which appeals ordinarily
lie from its decrees.
In the case ofa Civil Court from
whose decrees no appeal ordinarily lies, that Court is
deemed subordinate to the principal Court. having
ordinary original civil jurisdiction within the local
liruits of whose juriijdiction the former Court is situate,
e\·en though normally such a Court will not bo subordinate to the principal Court having ordinary original civil jurisdiction within whose local limits it is
situate.
It was urged by the learned Advocate• for Narain
Das that the order of the learned single Judge under
I S.C.R..
SUPREME COURT REPORTS
679
s. 4 76 did not amount to a decree and that therefore
the provisions of s. 195(3) were not applicable. It is
not necessary for us to express an opinion on the question whether the order of t.he learned single Judge
un\}er s. 476 is appealable under cl. IO of the Letters
Patent or not. A right of appeal against that order is
given by the provisions of s. 476 B. The forum of
appeal is also determined by the provisions of s. 476B
read with s. 195(3), and the only ·relevant consideration
to determine the proper forum for an appeal against
such an order of the single Judge is as to which Court
the appeals against appealable decrees of the single
J ndge ordinarily lie.
Such appeals lie to the High
Court under cl. IO of the Letters Patent of the Allahabad .High Court, and therefore this appeal lies to the
High Court.
Learned counsel for the appellant relied on the decision of this Court in M. S. Sheriff v. The State of
Madras(') in support of his contention that an appeal
under s. 476B lay to this Court from the decision of a
single Judge of a High Court refusing to file a complaint under s. 476 of the Code.
That case is distinguishable as the question considered in that case was
whet.her an appeal lay to this Court under s. 476B of
the Code from an order of a Division Bench of a High
0,ourt. It did not deal with the question whether an
appeal lay to this Court under s. 4 76B of the Code
from an order of a single Judge of the High Court. No
appeal lies to the High Court against the decision of
a Division Rench of the High Court and therefore an
appeal under s. 4 76B from an order of the Division
Bench of the High Court must lie to this Court.
The fact that an appeal lies to this Court from the
order of a single Judge of the High Court where the
High Couvt certifies, under Art. 132 of the Constitution, that the case involves a substantial question of
law as to. the interpretation of the ConstitutioJJ, is of
no assistance to the appellant's contention that this
appeal is competent in this Court. It cannot be said
that an appeal ordinarily lies to this Court from the
(1) [1954] S.C.R. ll44.
87
1960
Narain Das
v.
The Stat~ of
Utfar Praife.c;h
Raghubar
Day{1l j.
Narain Das
v.
TIJ• Stat• of
V.tt,ar Pradesh
Raglsubar
Dayal j.
Sr.ptember 15.
680
SUPREME COURT REPORTS
[1961]
judgment of a. single Judge of a. High C'ourt bees.use
such an a.ppea.l lies with a certifica.te gra.nted under
Art. 132.
We therefore hold tha.t the present a.ppca.I does not
lie to this Court and that it liPs to the High Court of
Jndica.ture a.t Allahe.ba.d. We therefore direct tba.t the
memora.ndum of appea.l be returned for presentation
to the proper Court.
.Appeal incompetent.
lSHEW BUX MOHATA AND OTHERS
v.
BENGAL BREWERIES LTD. AND OTHERS
(JAFER IMAM, A. K. SARKAR e.nd RAGHUBAR
DAYAL, JJ.)
Execution proceedings-Delivery of possession acknowledgedExecution case dismissed-If f11rther execution proceeding permissible-Purchaser of rest.ondent's interest-Whether could be added as
party-Code of Civtl Proced1ire, 1908 (5 of 1908), 0. 21, r. 35,
s. 146.
The appellant decree-holders in an execution proceeding
accepted delivery o! possession and granted a receipt to the
Nazir o! the Court acknowledging lull delivery o! possession to
'them but allowed the respondents, Bengal Breweries, to remain
in possession with their permission. The appellant also permitted
the execution case to be dismissed on the basis that lull possession had been delivered to them by the respondents. Sometime
thereafter the appellant made a fresh application for execution
against the respondent, for eviction which was resisted under
. s. 47 of the Civil Procedure Code alleging that so !ar as they
were concerned, the decree had been fully executed as a result
of the earlier execution proceeding which had terminated, and
that further execution was not permissible in law.
Held, that it is open to the decree-holder to accept delivery
o! possession under 0. 21, r. 35, o! the Code o! Civil Procedure
without actual removal o! the person in possession.
II he does
that then he is bound to the position that the decree has been
fully executed, and it cannot be executed any more.
Held, further, that on the principle in Soila Bala Dassi v.