9911796707
TMI Blog1957 (11) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... the order was questioned in a suit instituted in the Court of the Subordinate Judge, Barhampur. The litigation went up to the Privy Council, which held that the appellant as the religious head had the power to excommunicate a member of the community, but that that power could only be exercised after observing the requisite formalities, and as in that case that had not been done, the order of excommunication was invalid. Vide Hasan Ali v. Mansoorali (A.I.R. 1948 P.C. 66.). Apprehending that the order dated February 28, 1934, was open to challenge under the decision in Hasan Ali v. Mansoorali (supra) on the ground that it had not complied with the requisite formalities, the appellant started fresh proceedings, and on April 28, 1948, passed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, was as follows: Whether the orders of excommunication made in 1934 and/or 1948 are invalid by reason of the provisions of the Bombay Prevention of Excommunication Act of 1949? This was tried as a preliminary issue, and as it raised the question of the vires of a statute, the State of Bombay was impleaded as the second defendant in the suit. Shah J.who tried this issue, held that the impugned Act was retrospective in its operation, that it was within the competence of the Provincial Legislature, and further that it did not offend Arts. 25 and 26 of the Constitution. Against this finding, the present appellant preferred an appeal to a Bench of the Bombay High Court, and that was heard by Chagla C. J. and Bhagwati J. who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter to this Court. There are other issues still to be tried, and the action is thus undetermined. Now, the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. On the principle, actio personalis moritur cum persona when he died the suit should abate. As a matter of fact, his legal representative applied to be brought on record, but the application was not pressed. The result is that the suit has abated. This would ordinarily entail the dismissal of this appeal. Mr. N. C. Chatterjee for the appellant argues that as the State of Bombay had been impleaded as a party, and that as the decision on the question of the vires of the Act had been given in its presence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision on the validity of the Act, notwithstanding that it had no interest in the claim in the suit. This ruling has, in our opinion, no application to the facts of the present case. Here, the action itself has abated, and there can be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there can be no question of continuing what does not exist. But apart from this, there is another formidable obstacle in the way of the appellant. Under Art. 132, an appeal lies to this Court only against judgments, decrees or final orders. That was also the position under s. 205 of the Government of India Act. Now, the order appealed against is only a decision on one of the issues, and it does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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