1940 (12) TMI 26 - Other - Indian Laws

Summary

Issues Involved:
1. Competency of the appeal.
2. Applicability of the new Bihar Money-Lenders Act, 1939.
3. Interpretation of Section 7 of the Bihar Act.
4. Necessity of a further certificate under Order 45, Rule 3, Civil Procedure Code (CPC).

Detailed Analysis:

1. Competency of the Appeal:
The primary issue revolved around whether the appeal was competent given the procedural requirements under Order 45 of the Civil Procedure Code (CPC) and the Adaptation of Indian Laws Order, 1937. The Federal Court highlighted that the High Court's declaration of the appeal as "admitted" is a judicial act, not merely administrative. This declaration is crucial because it signifies that the appeal has passed out of the High Court's absolute control and is now under the jurisdiction of the Federal Court. The court emphasized that the Federal Court does not have the power to entertain an appeal by giving special leave, and the appeal must be admitted by the High Court before it can be lodged in the Federal Court.

2. Applicability of the New Bihar Money-Lenders Act, 1939:
The court addressed whether the new Bihar Money-Lenders Act, 1939, should be applied to the case. The Advocate-General of India objected, arguing that the new Act affected the respondents' vested rights obtained under the High Court's decree. However, the court noted that since the appeal was pending, the new Act could be applied. The court referenced previous decisions where the new Act was applied without questioning the validity of the old Act. The court concluded that the new Act should be applied to determine the rights of the parties.

3. Interpretation of Section 7 of the Bihar Act:
The court examined the interpretation of Section 7 of the Bihar Money-Lenders Act, 1939. The appellants argued that the decree for interest should not exceed the amount of the loan advanced. The court clarified that the amount of the loan advanced should be taken as the whole amount that passed, not just the amount found to be for legal necessity. The court distinguished this case from Birendra Prasad v. Surendra Prasad, where the liability was considered separately due to the splitting of the mortgage. In this case, the defendants were sued as representing one family, and there was one debt for which the claim was brought.

4. Necessity of a Further Certificate:
The court discussed the necessity of a further certificate under Order 45, Rule 3, CPC, before raising any question besides the one covered by the certificate under Section 205(1) of the Government of India Act. The court emphasized that if an appellant wishes to take grounds other than the constitutional one, they must obtain a further certificate from the High Court. This certificate is necessary to raise additional grounds in the appeal. The court concluded that it would not be proper to allow an appellant to evade these provisions by simply obtaining a certificate under Section 205(1) and then asking for leave to raise all other grounds.

Conclusion:
The court allowed the appeal to the extent that the amount recoverable by the plaintiffs must be calculated based on the sums found binding on the joint family. The case was remitted to the High Court to pass a revised decree on this basis. The court also addressed procedural issues, emphasizing the importance of compliance with Order 45, CPC, and the necessity of obtaining the required certificates for raising additional grounds in the appeal.