# SHRI DURGA PRASAD & ANOTHER v. THE BANARAS BANK LIMITED

- **Citation:** [1964] 1 S.C.R. 475
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. Wanchoo, K. C. DAs GUPTA, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-durga-prasad-another-v-the-banaras-bank-limited-2914
- **Pages:** 6

## Headnote

S1<preme Court, ApptUatejuri$4iction of-Cerlifirme graxt"'1.
by High Court, if 0011tpetent-•Oourt immtdiately btlow'-
Meaning of-Constitution of India,, A.rt. 133 (1).
The Official Liquidator of the respondent Bank advertised
for sale, the two houses belonging to the Bank. These houses
were sold to the second appellant with the sanction of the court.
The second appellant thereafter transferred the houses to the
first appellant reciting in the deed that the latter was the real
owner and that the sale deed from the Official Liquidator was
obtained btnami for him. The Official Liquidator moved the
High Court at Allahabad foe an order declaring the sale null.and
void and for an.order re-transferring the houses to the Bank, A
/962
S1at1 of Wist
B,.,111
v.
Uni .. of lit&
Subh&., J.
196•
D.....W,11.
1961
476 SUPREME COURT REPORTS [1964] VOL.
single Judge of the High Court held that the fint appellant
being at the material time a member of the committee of inspection and he having suppressed that intercot wu pttcluded from
buying the property of the Bank and directed the first appellant
lo convey the hou~ to the Official Liquidator of the Bank.
This order was confirmed by a Division Bench of the High Court
in appeal under cl. JO of the Letters Patent. The High Court
then certified the case under Art. 133 (1) (a) or the Constitution
for appeal to this Court. It was urged at the he:rrin~ of the
appeal on behalf of :he Official Liquidator that the appeal was
incompe1cnt, for the High Court had no jurisdiction to grant.
the certificate under .\rt. 133 (1) (a) of the Constitution without certifying that the appeal involved some substantial question of law.
H.ld,. that under Art. 133 (I) of the Constitution the
expression 'Court immediately below' has not the same connotation as the aprcooion •Court subordinate to the High Court'
and as the judgment of the Single Judge was affirmed in appeal,
the appeal to the Supreme Court could not be entertained with
a certificate under Art. 133 (1) (a) unless it w.u certified that
it involves some substantial question of law.
Dwki N,.tuin.,. v. 81ak of U. P., A. I. R. 1959 All. 10,
revcraed.
Tool8ay PtrarJud Bhu&t v. BtMyei< Mi .. er (1896) L. R.
23 I.A. 102, Prol>liatDatiK1,,.tDar v. Pan""'l Lodl&a, (1941) +s
Cal. W. N. I 002, referred to.
La4li Pr<H<Jd J~
v. Tlat Karl!.IJl !Mtil/ery Co. [1964)
Vol. 1 S. C.R. 270, relied on.
I
CIVIL APPBLLATE JumsorarroN: Civil Appeal
No. 569of1960.
Appeal from the judgment and decree dated
September 9, 1958, of the Allahabad High Court in·
Special Appeal No. 214of1956 •
. Ranganadham Chetty, A. V. Rongam, A. Vedavalli and M. I. Khowaja. for the appellants.
G. 8. Pathak and G. O. Mathur; for the respondent.
1 S.C.R.
SUPREME COURT REPORTS
477
1962. December 21.
The Judgment of the
Court was delivered by
SHAH, J.-The Banaras Bank Ltd-hereinafter
called 'the Bank' was directed to be wound up by
order of the Allahabad High Court.
A committee
of inspection was appointed under s. 178-A of the
Indian Companies Act, 1913 to act with the Official
Liquidator, and one of the members of the Committee was Durga Prasad the first appellant in this
appeal.
The Official Liquidator ad vertlsed for sale
two houses which formed part of the assets of r he
Bank.
Roshan Lal the ·second appellant made an
offer to purchase the two hou~es for Rs. 18,000/-.
. This offer was accepted by the Official Liquidator
and with the sanction of the Court the two houses
were sold to Roshan Lal on August 2, 1941. Roshan
Lal thereafter transferred the houses to Durga .Prasad
reciting in the deed that the latter was "the real
owner" oft he houses and that the sale deed from the
Official Liquidator was obtained by him 'benami' for
Durga Prasad. On coming to learn about this conveyance, the Official Liquidator moved the High
Court of Allahabad for an order that the sale be declared null and void and that Durga Prasad be called
upon to 'i1rrender the two houses and to re-transfer
the same to the Bank.
The High C

## Text

•.
1 $.C.R.
SUPREME COURT REPORTS
475
Union to acquire the lands owned by the State, including coal mines and coa bearing lands, is u.ltra virea.
I find on issues l, 2 and 3 against the defendant, In
view of my findings on the said issue, I do not propose to express my opinion on the additional issue.
In the result, there will be a decree in favour
of the plaintiff in terms of els. (a), (c) and (d) of
paragraph 11 of the plaint. The plaintiff is entitled
to costs.
Br COURT: In view of the judgment of the
majority, the suit stands dismissed with costs.
Appeal dismissed.
SHRI DURGA PRASAD & ANOTHER
v.
THE BANARAS BANK LIMITED
(B. P. SINHA, C.J.,, P. B. GAJENDRAGADKAR,
K. N. WANCHOO, K. C. DAs GUPTA and
J.C. SHAH, JJ.)
S1<preme Court, ApptUatejuri$4iction of-Cerlifirme graxt"'1.
by High Court, if 0011tpetent-•Oourt immtdiately btlow'-
Meaning of-Constitution of India,, A.rt. 133 (1).
The Official Liquidator of the respondent Bank advertised
for sale, the two houses belonging to the Bank. These houses
were sold to the second appellant with the sanction of the court.
The second appellant thereafter transferred the houses to the
first appellant reciting in the deed that the latter was the real
owner and that the sale deed from the Official Liquidator was
obtained btnami for him. The Official Liquidator moved the
High Court at Allahabad foe an order declaring the sale null.and
void and for an.order re-transferring the houses to the Bank, A
/962
S1at1 of Wist
B,.,111
v.
Uni .. of lit&
Subh&., J.
196•
D.....W,11.
1961
476 SUPREME COURT REPORTS [1964] VOL.
single Judge of the High Court held that the fint appellant
being at the material time a member of the committee of inspection and he having suppressed that intercot wu pttcluded from
buying the property of the Bank and directed the first appellant
lo convey the hou~ to the Official Liquidator of the Bank.
This order was confirmed by a Division Bench of the High Court
in appeal under cl. JO of the Letters Patent. The High Court
then certified the case under Art. 133 (1) (a) or the Constitution
for appeal to this Court. It was urged at the he:rrin~ of the
appeal on behalf of :he Official Liquidator that the appeal was
incompe1cnt, for the High Court had no jurisdiction to grant.
the certificate under .\rt. 133 (1) (a) of the Constitution without certifying that the appeal involved some substantial question of law.
H.ld,. that under Art. 133 (I) of the Constitution the
expression 'Court immediately below' has not the same connotation as the aprcooion •Court subordinate to the High Court'
and as the judgment of the Single Judge was affirmed in appeal,
the appeal to the Supreme Court could not be entertained with
a certificate under Art. 133 (1) (a) unless it w.u certified that
it involves some substantial question of law.
Dwki N,.tuin.,. v. 81ak of U. P., A. I. R. 1959 All. 10,
revcraed.
Tool8ay PtrarJud Bhu&t v. BtMyei< Mi .. er (1896) L. R.
23 I.A. 102, Prol>liatDatiK1,,.tDar v. Pan""'l Lodl&a, (1941) +s
Cal. W. N. I 002, referred to.
La4li Pr<H<Jd J~
v. Tlat Karl!.IJl !Mtil/ery Co. [1964)
Vol. 1 S. C.R. 270, relied on.
I
CIVIL APPBLLATE JumsorarroN: Civil Appeal
No. 569of1960.
Appeal from the judgment and decree dated
September 9, 1958, of the Allahabad High Court in·
Special Appeal No. 214of1956 •
. Ranganadham Chetty, A. V. Rongam, A. Vedavalli and M. I. Khowaja. for the appellants.
G. 8. Pathak and G. O. Mathur; for the respondent.
1 S.C.R.
SUPREME COURT REPORTS
477
1962. December 21.
The Judgment of the
Court was delivered by
SHAH, J.-The Banaras Bank Ltd-hereinafter
called 'the Bank' was directed to be wound up by
order of the Allahabad High Court.
A committee
of inspection was appointed under s. 178-A of the
Indian Companies Act, 1913 to act with the Official
Liquidator, and one of the members of the Committee was Durga Prasad the first appellant in this
appeal.
The Official Liquidator ad vertlsed for sale
two houses which formed part of the assets of r he
Bank.
Roshan Lal the ·second appellant made an
offer to purchase the two hou~es for Rs. 18,000/-.
. This offer was accepted by the Official Liquidator
and with the sanction of the Court the two houses
were sold to Roshan Lal on August 2, 1941. Roshan
Lal thereafter transferred the houses to Durga .Prasad
reciting in the deed that the latter was "the real
owner" oft he houses and that the sale deed from the
Official Liquidator was obtained by him 'benami' for
Durga Prasad. On coming to learn about this conveyance, the Official Liquidator moved the High
Court of Allahabad for an order that the sale be declared null and void and that Durga Prasad be called
upon to 'i1rrender the two houses and to re-transfer
the same to the Bank.
The High Court held that
the sale deed was .obtained by Durga Prasad who
was the real purchaser, that he had suppressed his
interest in the purchase, and that being a member of
of the committee for inspection, qua the Bank
he occupied the position of a trustee and was on that
account precluded from buying the property of the
Bank. The High Court accordingly directed Durga
Prasad to covey the houses to the Official Liquidator
of the Bank.
This order was confirmed in appeal
under cL IO of th~ Letters Patent by a Division
Bench of the High Court. The High Court, however, certified the case under Art. 33 (l) of the
1942
Shri Durga Prasad
••
Tht Banarm Bonk
Ltd.
Shuh, J,
Sild, J.
478 SUPREME COURT REPORTS [1964) VOL.
Constitution for appeal to thi! Court. The High Court
observed:
"It is not in dispute that the judgment of this
Court involves directly or indirectly a claim
respecting property of a value of not less than
Rs. 20 ,000{- and, in view of the decision of this
Court in
Shri
Deoki NatJan v. Sf.are of
Ultar
Praduh (1 ),
the
applicants
are
entitled as of right to a certificate
under
Article 133 ( l) of the Constitution without an
additional certificate that the case gives rue to
a substantial question of law.
The requisite
certificate will accordingly issue."
At the hearing before this Court counsel for the
Official Liquidator submitted that the appeal is
incompetent, for the High Court had no jurisdiction
to grant the certificate under Art. 133 (1) (a) of the
Constitution without certifying that the appeal
involved some substantial question of law. In our
view this contention must succeed.
In Declci Nandan v. Stale of Ultar Praduh (')
the Allahabad High Court held.
"The words 'the Court immediately below'
within. the meaning of cl. (1) of Art. 133 of the
Constitution must be a court other than the
High Court. A single Judge of a High Court is
not a court subordinate to the High Court.
An appeal against an order of an appellate Bench of the High Court dismissing an
appeal from an order of a single Judge of the
Court on its ·original side rejecting a petition
under Art. 226 of th Constitution lies as a
matter of right under Art. 133 (1) of the Consti·
tution, if the claim is in respect of property of a
value in excess of Rs. 20,000/- and it u not
(I) A.IR. 1959 AU. JO.
1 S.C.R.
SUPREME COURT REPORTS
479
nec,ssary that the case should give rise to a
substantial question of law."
But the expression 'court immediately below' in
Art. 133 (1) has not the same connotation as the
expression 'court subordinate.to the High Court.' -in
Toolsey Persaud Bhuckt v. Benayek Miaaer ('), the
Privy Council appears to have expressed the view
that a single Judge of a High Court trying an original
proceeding was a court immediately below the High
Court hearing an appeal under the Letters Patent
from his judgment and therefore an appeal under
s. 596 of the Code of Civil Procedure Act XIV of
1882 (of which the terms were in substance identical
-with the terms of Art. 133 (1)) could be certified for
appeal to the Privy Council only if a substantial
question of law
was
involved.
The Jud_icial
Committee observed :
'·Their Lordships think that no question of law,
either as to construction of documents or any
other point, arises on the judgment of the High
Court, and that there are concurrent findings of
the two Courts below on the oral and docu·
mentary _evidence submitted to them. That
being so, the present appeal cannot be ente~
tained."
In Probhawati K unwar v. Panmal Lodha ('), the High
Court of Calcutta held -that an appeal to the Privy
Council cannot be certified if the High Court confirms the judgment of a single Judge trying an
original proceeding, unless it involves a substantial
question of law. In a recent case Ladli Prasad
Jaiswal v. The Karnal Distillery Company Ltd. ('),
this Court held that a single Judge. hearing a second
appeal under s. 100 of the Code of Civil Procedure,
1908 is for purposes of Art. 133 (1) the Court
immediately below a Division Bench of the High
Gou,rt hearing an appeal against his jud~ment under
t}je Letters Patent. It was observed in that case that
(!,) (1896) L.R. 28 I.A. 102.
-
(2) (1941) 45 Cal. W.N. 1002.
(S) [1964] Vol. l, S.C.R. 270.
Ilti2
Sluzh, I.
1961
Sliri Dtut• Pras.J
••
TNS...-.BtznJ;
Ltd.
SllaJz, J.
480 SUPREME COURT REPORTS [1964] VOL.
the expression 'Court immediately hflow' used in
Art. 133 (I) (a) doe~ not mean Court subordinate to
the High Court. "A Court subordinate to the High
Court is a Court subject to the superintendence of the
High Court, whereas a Court immediately below is
the Court from whose· decision the appeal has been
filed."
In that case the Attorney-General appearing
for the respondents conceded that a single Judge of a
High Court trying a suit or proceeding as a court of
original jurisdiction wa, a court immediately below
the High
Court
hearing
an appeal from his
decision-and it was observed in the Judgment of this
Court that the concession was properfy made. ·
In the appeal before us, the judgment of the
High Court affirms the judgment of the single Judge
and the High Court has not certified that the decision
appealed from involves any substantial question of
law. The appeal cannot accordingly be entertained.
Counsel for the appellant requested that in any event
special leave to appeal under Art. 136 of the Constitution be granted.
But we arc of the view, having
regard to all the circumstances, that this is not a fit
case for granting leave to appeal.
The appeal is therefore dismissed.
There will
be no order as to costs.
A ppea/ disniis&ed.