Appeal from the judgment and order dated March 20, 1959, of the Bombay High Court at Nagpur in Special Civil Application No. 322 of 1958. S. Bobde, and Ganpat Rai, for the appellant. C. Mathur and P. D. Menon, for the respondents. 1962. March 15. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-On the 26th July, 1958, the Collector of Central Excise, Nagpur, passed an order directing absolute confiscation of five bars of gold weighing 290.6 Tolas found in the possession of the appellant Pukhraj and imposing upon him a personal penalty of Rs. 25,000/- under s. 167 (8) of the Sea Customs Act, 1878 read with a. 19 of the said Act and s. 23-A of the Foreign Exchange Regulation Act, 1947. Aggrieved by the said order, the appellant filed a writ petition in the High Court of Bombay at Nagpur under Arts. 226 and 227 of the Constitution on September 15, 1958. By this petition, the appellant claimed a writ of Certiorari or other appropriate writ or order quashing the impugned order. It was urged by him in support of his petit-ion, inter alia, that s. 178A of the Sea Customs Act was unconstitutional in that it infringed the appellants fundamental right under Art. 19 (1) (1) and (g) of the Constitution. It was also. urged that on the merits, the said impugned order was not justified by the relevant statutory provisions of the Sea Customs Act read with the Foreign Exchange, Regulation Act. The High Court rejected the appellants challenge to the validity of s. 178A and held that the order directing the confiscation of five bars of gold was valid. The High Court, however, took the view that the direction issued by the Collector of Central Excise imposing a personal penalty of Rs. 25,000/- On the appellant was invalid and so, the said direction was sot aside and a writ issued in that behalf. The appellant then applied for and obtained a certificate from the said High Court and it is with the said certificate that he has come to this Court for challenging the correctness of the order passed by the High Court by which the confiscation of gold in question has been held to be valid. The main point on which the certificate was granted by the High Court to the appellant was in regard to the constitutional validity of a. 178A. That question has, in the meanwhile, been decided by this Court on September 25, 1961, in Civil Appeals Nos. 408 to 410 of 1960 and other companion appeals. The judgment of the constitutional Bench dealingwith those appeals has upheld the validity of s.178A and so, the principal point which the appellant wanted to raise before this Court is now concluded against him. For the appellant, Mr. Bobde has, however, urged three other contentions before us in support of his case that the confiscation of gold is not justified.
Before dealing with these contentions, it is necessary to mention very briefly the relevant facts which led to the confiscation of gold. The appellant is a goldsmith by profession and owns a gold and silver shop at Rajnandgaon in Madhya Pradesh. On October 25, 1956, whilst he was travelling by the passenger train from Calcutta on the CalcuttaNagpur route, he was searched at Raigarh railway station and found to be in possession of five pieces of gold bullion weighing 290.6 tolas valued at Rs. 29,835/- approximately. The said gold was then seized by the Officer concerned acting on a reasonable belief that it was smuggled gold, and notice was issued against the appellant on May 20, 1957, calling upon him to show cause why action should not be taken against him for having contravened the notification issued by the Government of India No. 12 (11)-F.1/48 dated August 26, 1948 under the foreign Exchange Regulation Act, 1947 read with s.23A of the said Act and s.19 of the Sea Customs Act and punishable under item (8) of s.167 of the Sea Customs Act. The appellant sent a reply and thereupon, the Collector of Central Excise held an enquiry. At the enquiry the appellant appeared by counsel and examined four witnesses in support of his plea that he was in possession of gold Which belonged to him and which was not smuggled gold at all. Documentary evidence in the form of account books was also produced by the appellant in sup. port of his plea. The Collector of Central Excise disbelieved the evidence adduced by the appellant and came to the conclusion that the presumption arising under s.178 of the Sea Customs Act had not .been rebutted by the appellant and so, he proceeded to pass the impugned order confiscating gold and imposing on the appellant a personal penalty of Rs.25,000/-. It is in the light of these facts that the three contentions raised by Mr. Bobde fall to be, considered in the present appeal. The first argument raised in support of the appeal is that the confiscation of gold is not justified under s.167(8) because it has been found by the High Court that the appellant is not a person concerned in the offence of importation of the said gold. It appears that in dealing with the question as to whether the personal penalty imposed upon the appellant is valid or not, the High Court has relied on two considerations. It has held that the jurisdiction of the officer to impose a personal penalty was confined to the imposition of a penalty only up to Rs.1000/-and no more, and in support of this conclusion, the High Court relied on certain observations made by this Court in F.N.Roy v. Collector of Customs, Calcutta(1). This question has been recently considered by this Court in M s. Ranchhoddas Atmaram v. The Union of India(2) and it has been held that the language in item (8) of s.167 is clear and it permits the imposition of a penalty in excess of Rs.1000/- and that must be given effect to whatever may have been the intention in other provisions. So, it is clear that the High Court was in error in taking the view that under section 167(8), it was not within the jurisdiction of the Collector of Central Excise to impose a penalty exceeding Rs. 1000/-. The High Court has also held that the appellant was not shown to have been concerned with the importation of the smuggled gold, though he was found in possession of it and this finding, according to the High Court, justified the conclusion that a personal penalty could not be imposed on him. We are not called upon to consider in the present appeal the correctness or propriety of this conclusion because there is no appeal by the respondent Collector of Central Excise challenging this part of the High Courts order. Basing himself on the finding of the High Court that the appellant was not concerned in the importation of ,smuggled gold, Mr. Bobde argues that even the goods cannot be confiscated under s.167(8). In our opinion, this argument is clearly misconceived. Section 167(8) clearly provides, inter alia, that if (1) 1957 S.C.R.1 151 at p.1158, (2) 1961 3 S.C.R. 718. any goods, the importation of which is for the time being prohibited or restricted by or under Chapter IV of the Act, be imported into India contrary to such prohibition or restriction, such goods shall be liable to confiscation. If s.167(8) applies, then there can be no doubt that as soon as it is shown that certain goods have been imported contrary to the statutory prohibition or restriction, they are liable to confiscation and the confiscation of the said goods is not based on the fact that they are necessarily found with a person who was concerned with their importation. Therefore, once s.167(8) is hold to be applicable, the validity of the order directing the confiscation of the smuggled goods is beyond any challenge. The next question to consider is whether s.167(8) applies to the facts of this case, and that takes us to the relevant notification issued by the Government of India in 1948. This notification imposed restrictions on import of gold and silver and it has been issued under s.8(1) of the Foreign Exchange Regulation Act, 1947. The effect of this notification, inter alia, is that except with the general or special permission of the Reserve Bank, no person shall bring or send into India from any place outside India any gold, coin gold bullion. gold sheets or gold ingot, whether refined or not. Thus, bringing into India gold from outside is prohibited by this notification unless the said gold is brought with the general or special permission of the Reserve Bank. Section 23 of the said Act provides for penalty and procedure in respect of contravention of its provisions and of rules, orders or directions issued thereunder. Section 23-A provides that without prejudice to the provisions of s. 23 or to any other provision contained in the said Act, the restrictions imposed by sub-s.(1) and (2) of s. 8 shall be deemed to have been imposed under s. 19 of the Sea Customs Act, and all the provisions or that Act shall have effect accordingly, except that s. 183 thereof shall have effect as if for the word shall therein the word ,may was substituted. It would, thus be noticed that the combined effect of the aforesaid provisions of the two Acts and the relevant notification is that the notification of 1948 has the force of a notification issued under s. 19 of the Sea Customs Act, and in consequence, gold imported in contravention of the said notification is liable to be seized under . 1.78 of the said Act and renders the person in possession of the said gold liable for proceedings under s.167(8) of the said Act and since the matter falls to be considered under the, relevant provisions of the Sea Customs Act, s. 178A is also applicable. This position is not disputed. Now s. 178A places the burden of proving that the goods are not smuggled goods on the person from whose possession the said goods are seized where it appears that the said goods are seized under the provisions of the Sea Customs Act in the reasonable belief that they are smuggled goods. Once it is shown that the goods were seized in the manner contemplated by the first part of s. 178A, it would be for the appellant to prove that the goods were not smuggled goods and since it has been held by the Collector of Central Excise that the appellant had not discharged the onus imposed on him by s. 178A, the statutory presumption remained unrebutted and so, the goods must be dealt with on the basis that they are smuggled goods. As soon as we reach this conclusion, it follows that under s. 167(8) of the Sea Customs Act, the said goods are liable to confiscation. That is the view taken by the High Court when it rejected the appellants prayer for a writ quashing the order of confiscation passed by the Collector of Central Excise in respect of the gold in question, and we see no reason to interfere with it. The next argument urged by Mr. Bobde is that certain witnesses whose evidence was recorded by the Collector of Central Excise in the enquiry before him, were not produced for cross-examination by the appellant. In our opinion, there is no substance in this argument. This complaint relates to the evidence of Anwar, Marotrao and his brother Rambhau. These three persons, it is alleged made their statements in the absence of the appellant. It was, however, stated before the High Court by Mr. Abhyankar for the department that Anwar was, in fact, examined in the presence of the appellants counsel and the appellants counsel did not cross-examine him. This statement was accepted by Mr. Sorabji who appeared for the appellant and so, no valid complaint can be made that Anwar gave evidence in the absence of the appellant and the appellant bad no opportunity to cross-examine him. Then, as regards Marotrao and Rambhau, their statements were intended to show that the appellants case that he had got the gold melted through them was not true. At the enquiry, the appellant gave up this stand and did not adhere to his earlier version that the gold in question had been melted with the assistance of the said two witnesses. Since it became unnecessary to consider that plea because of the change of attitude adopted by the appellant, it was hardly necessary to allow the appellant to cross-examine the said two witnesses. Their version on the point was no longer inconsistent with the subsequent case set up by the appellant.
Therefore there is no substance in the argument that the enquiry held by the Collector of Central Excise was conducted unfairly and the procedure adopted at the said enquiry was inconsistent with the requirements of natural justice. The last contention raised by Mr. Bobde was that there is nothing on record to show that the seizure of gold from the appellant had been affected by the officer concerned acting on a reasonable belief that the said gold was smuggled. It would be recalled that S. 178A of the Sea Customs Act requires that before the burden can be imposed on the appellant to show that the goods in question were not smuggled, it has to be shown that the goods had been seized under the said Act and in the reasonable belief that they are smuggled goods. The argument is that the question as to whether there was a reasonable belief or not is justiceable, and since there is no material on the record to show that the belief could have been reasonable, the statutory presumption cannot be raised. In our opinion, this argument is not well-founded. There are two broad features of this seizure which cannot be igno- red. The first feature on which the officer relied is supplied by the quantity of gold in question. It was found that the appellant was carrying on his person five pieces of gold bullion weighing as much as 290.6 tolas.
This large quantity of gold valued at nearly Rs. 30,000/- itself justified a reasonable belief in the mind of the officer that the gold may be smuggled. In that connection, it may not be irrelevant to remember that the said officer had received positive information in the month of September, 1956, regarding the smuggling of gold by the appellant. That is why he was intercepted by the officer on the 25th October, 1956, at the Raigarb railway station at 16.30 hours. Then the other fact on which the reasonable belief can be founded is the suspicious circumstances of the appellants journey. The appellant was found travelling without a Railway ticket and his explanation as to how he came to be. in the said passenger train is obviously untrue. A person carrying a, large quantity of gold and found travelling without a ticket may well have raised a reasonable belief in the mind of the officer that the gold was smuggled. The object of travelling without a ticket must have been to conceal the fact that the appellant had travelled all the way from Calcutta at which place the gold must have been smuggled. The story subsequently mentioned by the appellant about his journey to Tatanagar which has been disbelieved brings into bold belief the purpose which the appellant had in mind in travelling without a ticket. After-all-, when we are dealing with a question as to whether the belief in the mind of the Officer who effected the seizure was reasonable or not, we are not sitting in appeal over the decision of the said officer. All that we can consider is whether there is ground which prima facie justifies the said reasonable belief. That being so, we do not think there is any substance in the argument that the seizure was effected without a reasonable belief and so is outside section 178A.
DECISION ??

The next argument urged by Mr. Bobde is that certain witnesses whose evidence was recorded by the Collector of Central Excise in the enquiry before him, were not produced for cross-examination by the appellant. In our opinion, there is no substance in this argument.

The argument is that the question as to whether there was a reasonable belief or not is justiceable, and since there is no material on the record to show that the belief could have been reasonable, the statutory presumption cannot be raised. In our opinion, this argument is not well-founded.

We are not called upon to consider in the present appeal the correctness or propriety of this conclusion because there is no appeal by the respondent Collector of Central Excise challenging this part of the High Courts order.

Basing himself on the finding of the High Court that the appellant was not concerned in the importation of ,smuggled gold, Mr. Bobde argues that even the goods cannot be confiscated under s.167(8). In our opinion, this argument is clearly misconceived.

Therefore, once s.167(8) is hold to be applicable, the validity of the order directing the confiscation of the smuggled goods is beyond any challenge.

The main point on which the certificate was granted by the High Court to the appellant was in regard to the constitutional validity of a. 178A.

Now s. 178A places the burden of proving that the goods are not smuggled goods on the person from whose possession the said goods are seized where it appears that the said goods are seized under the provisions of the Sea Customs Act in the reasonable belief that they are smuggled goods.

All that we can consider is whether there is ground which prima facie justifies the said reasonable belief.

three other contentions before us in support of his case that the confiscation of gold is not justified.

The first argument raised in support of the appeal is that the confiscation of gold is not justified under s.167(8) because it has been found by the High Court that the appellant is not a person concerned in the offence of importation of the said gold.

the jurisdiction of the officer to impose a personal penalty was confined to the imposition of a penalty only up to Rs.1000/-and no more

Bobde is that certain witnesses whose evidence was recorded by the Collector of Central Excise in the enquiry before him, were not produced for cross-examination by the appellant. In our opinion, there is no substance in this argument.

Therefore there is no substance in the argument that the enquiry held by the Collector of Central Excise was conducted unfairly and the procedure adopted at the said enquiry was inconsistent with the requirements of natural justice.

The argument is that the question as to whether there was a reasonable belief or not is justiceable, and since there is no material on the record to show that the belief could have been reasonable, the statutory presumption cannot be raised.

The next question to consider is whether s.167(8) applies to the facts of this case, and that takes us to the relevant notification issued by the Government of India in 1948

That is the view taken by the High Court when it rejected the appellants prayer for a writ quashing the order of confiscation passed by the Collector of Central Excise in respect of the gold in question, and we see no reason to interfere with it

Therefore there is no substance in the argument that the enquiry held by the Collector of Central Excise was conducted unfairly and the procedure adopted at the said enquiry was inconsistent with the requirements of natural justice

It would be recalled that S. 178A of the Sea Customs Act requires that before the burden can be imposed on the appellant to show that the goods in question were not smuggled, it has to be shown that the goods had been seized under the said Act and in the reasonable belief that they are smuggled goods

There are two broad features of this seizure which cannot be igno- red. The first feature on which the officer relied is supplied by the quantity of gold in question. It was found that the appellant was carrying on his person five pieces of gold bullion weighing as much as 290.6 tolas

The story subsequently mentioned by the appellant about his journey to Tatanagar which has been disbelieved brings into bold belief the purpose which the appellant had in mind in travelling without a ticket.

The High Court rejected the appellants challenge to the validity of s. 178A and held that the order directing the confiscation of five bars of gold was valid

The appellant then applied for and obtained a certificate from the said High Court and it is with the said certificate that he has come to this Court for challenging the correctness of the order passed by the High Court by which the confiscation of gold in question has been held to be valid.

The argument is that the question as to whether there was a reasonable belief or not is justiceable, and since there is no material on the record to show that the belief could have been reasonable, the statutory presumption cannot be raised. In our opinion, this argument is not well-founded

Therefore, once s.167(8) is hold to be applicable, the validity of the order directing the confiscation of the smuggled goods is beyond any challenge.

Therefore there is no substance in the argument that the enquiry held by the Collector of Central Excise was conducted unfairly and the procedure adopted at the said enquiry was inconsistent with the requirements of natural justice.

The main point on which the certificate was granted by the High Court to the appellant was in regard to the constitutional validity of a. 178A.

So, it is clear that the High Court was in error in taking the view that under section 167(8), it was not within the jurisdiction of the Collector of Central Excise to impose a penalty exceeding Rs. 1000/-.

Since it became unnecessary to consider that plea because of the change of attitude adopted by the appellant, it was hardly necessary to allow the appellant to cross-examine the said two witnesses.

After-all-, when we are dealing with a question as to whether the belief in the mind of the Officer who effected the seizure was reasonable or not, we are not sitting in appeal over the decision of the said officer.

All that we can consider is whether there is ground which prima facie justifies the said reasonable belief. That being so, we do not think there is any substance in the argument that the seizure was effected without a reasonable belief and so is outside section 178A.

The High Court rejected the appellants challenge to the validity of s. 178A and held that the order directing the confiscation of five bars of gold was valid.

The High Court, however, took the view that the direction issued by the Collector of Central Excise imposing a personal penalty of Rs. 25,000/- On the appellant was invalid and so, the said direction was sot aside and a writ issued in that behalf.

The next argument urged by Mr. Bobde is that certain witnesses whose evidence was recorded by the Collector of Central Excise in the enquiry before him, were not produced for cross-examination by the appellant. In our opinion, there is no substance in this argument.

At the enquiry, the appellant gave up this stand and did not adhere to his earlier version that the gold in question had been melted with the assistance of the said two witnesses.

The argument is that the question as to whether there was a reasonable belief or not is justiceable, and since there is no material on the record to show that the belief could have been reasonable, the statutory presumption cannot be raised. In our opinion, this argument is not well-founded.

There are two broad features of this seizure which cannot be igno- red. The first feature on which the officer relied is supplied by the quantity of gold in question.

It was found that the appellant was carrying on his person five pieces of gold bullion weighing as much as 290.6 tolas.
This large quantity of gold valued at nearly Rs. 30,000/- itself justified a reasonable belief in the mind of the officer that the gold may be smuggled.

Then the other fact on which the reasonable belief can be founded is the suspicious circumstances of the appellants journey. The appellant was found travelling without a Railway ticket and his explanation as to how he came to be. in the said passenger train is obviously untrue.

A person carrying a, large quantity of gold and found travelling without a ticket may well have raised a reasonable belief in the mind of the officer that the gold was smuggled.

The story subsequently mentioned by the appellant about his journey to Tatanagar which has been disbelieved brings into bold belief the purpose which the appellant had in mind in travelling without a ticket.

For the appellant, Mr. Bobde has, however, urged three other contentions before us in support of his case that the confiscation of gold is not justified.

Basing himself on the finding of the High Court that the appellant was not concerned in the importation of ,smuggled gold, Mr. Bobde argues that even the goods cannot be confiscated under s.167(8).

The next question to consider is whether s.167(8) applies to the facts of this case, and that takes us to the relevant notification issued by the Government of India in 1948.

This notification imposed restrictions on import of gold and silver and it has been issued under s.8(1) of the Foreign Exchange Regulation Act, 1947.

The effect of this notification, inter alia, is that except with the general or special permission of the Reserve Bank, no person shall bring or send into India from any place outside India any gold, coin gold bullion. gold sheets or gold ingot, whether refined or not.

Thus, bringing into India gold from outside is prohibited by this notification unless the said gold is brought with the general or special permission of the Reserve Bank.

The last contention raised by Mr. Bobde was that there is nothing on record to show that the seizure of gold from the appellant had been affected by the officer concerned acting on a reasonable belief that the said gold was smuggled.

Aggrieved by the said order, the appellant filed a writ petition in the High Court of Bombay at Nagpur under Arts. 226 and 227 of the Constitution on September 15, 1958.

That is the view taken by the High Court when it rejected the appellants prayer for a writ quashing the order of confiscation passed by the Collector of Central Excise in respect of the gold in question, and we see no reason to interfere with it.

Now s. 178A places the burden of proving that the goods are not smuggled goods on the person from whose possession the said goods are seized where it appears that the said goods are seized under the provisions of the Sea Customs Act in the reasonable belief that they are smuggled goods.

The first feature on which the officer relied is supplied by the quantity of gold in question.

This large quantity of gold valued at nearly Rs. 30,000/- itself justified a reasonable belief in the mind of the officer that the gold may be smuggled.

five pieces of gold bullion weighing 290.6 tolas valued at Rs. 29,835/- approximately.

except with the general or special permission of the Reserve Bank, no person shall bring or send into India from any place outside India any gold, coin gold bullion. gold sheets or gold ingot, whether refined or not.

Their version on the point was no longer inconsistent with the subsequent case set up by the appellant.

it may not be irrelevant to remember that the said officer had received positive information in the month of September, 1956, regarding the smuggling of gold by the appellant.

We are not called upon to consider in the present appeal the correctness or propriety of this conclusion because there is no appeal by the respondent Collector of Central Excise challenging this part of the High Courts order.


Appeal by special leave from the judgment and order dated February 3, 1961, of the Madhya Pradesh High Court in M. P. No. 139 of 1960. C. Chatterjee and D. N. Mukherjee, for appellants. Sen and 1. N. Shroff, for respondent No. 1. P. Maheshwari, for respondent No. 2. 1962. April 16. The Judgment of the Court was delivered by AYYANGAR, J.-By a communication dated April 5, 1930, from the Secretary to the Government of the Central Provinces addressed to the Commissioner Jabalpur Division, certain Nazul land was made available to the Municipal Committee of Jabalpur. In this letter the Secretary Stated I am directed by the Governor in Council with the previous sanction of the Government of India to communicate the following orders of the Government of the Central Provinces - Under Section 38(1)(f) of the Central Provinces Municipalities Act, 1922, Government is pleased to transfer to the Municipal Committee, Jubbiilpore, free of premium and ground rent nazul land measuring of the Jabbulpore town. The land shall vest in the Municipal Committee subject to the following conditions
The land shall be used only for the purpose of a garden and no part of it shall be used for any other purpose without the previous sanction of the Local Government. If condition 1 is broken the land shall be liable to be divested under section 38(2) and resumed by Government .and no compensation whatsoever shall be payable to the Municipal Committee upon such resumption. If the land. is resumed by Government for any Government purpose the provisions of Section 38(3) will apply. Sub-sections (2) (3) of s. 38 referred to ran 38. (2) The State Government may, by notification, direct that any property which has vested in the committee shall cease to be so vested, and thereupon the property speci- fied in the notification shall cease to be so vested and the State Government may pass such orders as it thinks fit regarding the disposal and management of such property. Where any immovable property is transferred, otherwise than by sales, by the State Government to a committee, for public purpose, it shall be deemed to be a condition of such transfer, unless specially provided to the contrary, that, should the property be at any time resumed by the Government, the compensation payable therefor shall notwith- standing any thing to the contrary in the Land Acquisition Act, 1894 (1 of 1894), in no case exceed the amount, if any, paid to the Govern- ment for the transfer, together with the cost or the present value, whichever shall be less, of any buildings created or other works executed on the land by the committee. The land thus obtained was being used by the Municipal Committee in accordance with the condition of the transfer as a public garden. The Central Provinces Berar Municipalities Act, 1922 was repealed by the City of Jabalpur Corporation Act, 1948 (M.III of 1950). Under this later enactment the Municipal Committee was substituted by the Jabalpur Corporation, the appellant before us and all properties-movable and immovable-which were previously vested in the Municipal Committee were transferred to and vested in the Corporation (vide s. 71 of the Jabalpur Corporation Act), and by reason of the vesting, the appellant was in enjoyment of the transferred property. A hostel or boarding house of a public institution-the Hitkarni Mahavidyalaya had been located in a building constructed to the north of the Public Garden maintained by the Corporation. A public road ran to the south of the Public Garden and as there was not a proper and convenient access from the Boarding-house to the public road, the authorities of the Mahavidyalaya approached the State Government to obtain for them a narrow strip of land about 20 ft. wide at the eastern extremity of the Public Garden for the purpose of laying a public road which would provide this access. The Government considered this request reasonable and forwarded this request of the Mahavidyalaya, with a covering letter of their own dated April 28, 1959, to the Corporation for being complied with.- The request however was not acceded to and thereafter on February 11, 1960, the Government of Madhya Pradesh issued a notification under s. 81 of the Jabalpur Corporation Act notifying that the strip of land needed for making a road measuring 3, 940 sq. ft. stood divested from the Corporation., .Section 81 runs in these terms
 The Provincial Government may resume any immovable property, transferred to the Corporation by itself or by any local authority, where such property is required for a public purpose, without payment of any compensation other than the amount paid by the Corporation for such transfer and the market value at the date of resumption of any buildings or works subsequently reacted or executed thereon by the Corporation with the intention that such buildings or works should be permanent Provided that compensation need not be paid for buildings or works constructed or erected in contravention of the terms of the transfer. (The expression Provincial Government was amended so as to read State Government by the Adaptation of Laws Order). Complaining that this notification was illegal and beyond the jurisdiction of the State Government the Jabalpur Corporation moved the High Court of Madhya Pradesh for relief under Art-. 826 of the Constitution praying for the issue of the writ of mandamus quashing the notification of the government as without jurisdiction and forbidding the enforcement of that order. This was opposed both by the State of Madhya Pradesh as well as the Hitkarini Sabha and the learned Judges dismissed this petition. An application for a certificate of fitness for appeal to this Court filed by the Corporation was also dismissed and therefore the present appeal has been filed by special leave obtained under Art. 136 of the Constitution. The submission of Mr. Chatterji-learned Counsel for the appellant-was naturally directed to showing that the reasoning adopted by the learned judges of the High Court was erroneous. The reasoning was briefly as follows The learned Judges assumed, accepting a submission made on behalf of the appellant-Corporation during the arguments on the writ petition, that the authority which effected the transfer of the property to the Municipal Committee of Jabalpur by the order which we have set out as the opening of this judgment was not the Government of Central Provinces Berar but the Central Government. Starting from this premise, they concluded that the notification could not be sustained under the terms of s. 81. Section 81, it will be seen, empowers the State Government to resume immovable property transferred to the Corporation by itself when such property is required for a public purpose. If the property in question had been transferred by the Central Government, the argument ran that s. 81 was inapplicable. It should be added that both in the basic assumption that it was the Central and not the Local Government the predecessor of the State Government that had effected the transfer, as well as in the further consequence that the exercise of the power under s. 81 of the Corporation Act was ineffective, the learned Judges were aided by concessions accepting the correctness of this position which appear to have been made by the Deputy Advocate General who represented the State before them., We shall have occasion to refer to this aspect later. Meanwhile to proceed with the reasoning of the learned Judges, s. 81 being assumed not to be available to sustain the impugned notification, the learned Counsel for the State appears to have relied on the provisions of s. 38 of the Act of 1922 as enabling the State Government to resume the land, and this notwithstanding that by the Jabalpur Corporation Act III of 1950 the entirety of the C.
 Berar Municipalities Act of 1922 including s. 38 bad been expressly repealed. The learned Judges considered that this was possible by reason of a saving contained in s. 3 (1) of the Jabalpur Corporation Act which reads- 3. (1) All debts and obligations incurred, all contracts entered into with and all matters and things engaged to be done by or for, the Municipality of Jubbulpore, before this Act comes into force shall be deemed to have been incurred, entered into with or engaged to be done by, or for, the Corporation as constituted under this Act. Mr. Chatterji-learned Counsel for the appellant Corporation submitted to us that the learned Judges of the High Court bad wrongly applied the saving in s. 3 (1) of Act III of 1940 to sustain the resumption of land under the impugned notification. He consider, however, that in view of our conclusion that the impugned notification fell clearly within the power vested in State Government under s. 81 of the Jabalpur Corporation Act, it is not necessary to pronounce upon the correctness of the submissions made to us on the construction of s. I (1) of that Act, There could not be any dispute that if the authority that had transferred the property covered by the impugned notification, to the Municipal Committee of Jabalpur was the Government of Central Provinces Berar, the right of the suceessor-Government viz. the State Government of Madhya Pradesh to take over the land from the Corporation for the purpose of forming a public road would manifestly be within their power under a. 81. That the Corporation of Jabalpur was the successor-in-title to the Municipal Committee of Jabalpur and. that the property which- was vested in the Municipal Committee of Jabalpur was transferred to and became vested in the appellant Corporation under s. 71 of the Jabalpur Corporation Act, were never in dispute and indeed formed the very basis of the appellants petition to the High Court. If any particular property had vested in the Municipal Committee subject to its being divested in particular contingencies, that the property in the hands of the Corporation would be held subject to the same obligations or disabilities could also not be in controversy. Nor could it be contested that the making of a public road is a public purpose for which land may be resumed by the State under s.
 What we desire to point out is that if the State of Madhya Pradesh was or must be deemed to have been the transferee of the property under the communication dated April 5, 1930, the validity of the notification under s. 81 could not be challenged. As we have pointed out earlier, the learned Judges proceeded, however on the assumption that it was not the Government of C. P. Berar but the Central Government that was the transferrer of the land in question. There was, however, no basis upon which the learned Judges could have rested this assumption. In the first place, in the writ petition by which the appellant-Corporation challenged the validity of the notification it did not deny the fact that it was the Government of C. P. Berar that had effected the transfer, and, in fact, the allegations in the petition proceeded on the basis that it was the State Government that had done so but the contention raised was that on a proper construction of is. 81 it applied only to transfers made after the Jubbulpore Corporation Act, 1948 came into force- an untenable contention which has not been persisted in. The question as to who a transferor is obviously a question of fact or at best a mixed question of law and fact and when a party in a writ petition does not allege any such fact, it stands to reason that he ought not to be permitted to travel beyond the facts stated, at the stage of the arguments, To confine a party to his pleadings, particularly to his allegations as regards facts is dictated not merely by the need for orderliness in these proceedings but for avoiding surprise to the other party and consequent injustice resulting therefrom. Save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter or grounds, there is need to add to or to modify the allegations either in the petition or in the counter- affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences. This salutary rule was not adhered to in this case, and the departure from the pleadings which the appellant was permitted to adopt during the course of its arguments before the High Court has led to injustice because thereby the Counsel for the State who was apparently not prepared, to meet an argument not raised in the petition, made submissions at the spur of the moment which were not justified by the true state of affairs. In our opinion, on the allegations made in the petition by the appellant Corporation it ought not to have been permitted to put forward a case that the State Government was not the transferor of the property and the learned Judges of the High Court should have proceeded on the basis of the pleadings in the case. Apart from this question of pleading, we consider that there is no merit in the contention even otherwise.
We have already set out the terms by which the transfer of the land was communicated to the Municipal Committee. The preamble recites that is what being communicated is the order of the Government of the Central Provinces. The words of conveyance are in the second paragraph and they read Under section 38(1)(f) of the Central Provinces Municipalities Act, 1922 Government is pleased to transfer to the Municipal Committee . The expression Government here obviously, in the context, means the Government of the Central Provinces. Paragraph 2 which specifies what should happen if the condition on which the land has been granted should be broken, states The land shall be liable to be. divested under s. 38 (2) and resumed by Government . Government here again obviously is the Government of the Central Provinces a construction reinforced if one looked at the sub-section referred to. Further, in Condition 3 which speaks of what was to happen if the land was resumed by Government for any Government purpose the reference to Government again is to the State Government. On the terms of the document therefore it was the Government of the Central Provinces that made the grant-the predecessor of the State Government. We find therefore that there is no factual foundation for the submission which was apparently made before the High Court that the transfer in the present case was by the Central Government. No doubt, the communication refers to the fact that previous to making the grant the Government of C. P. Berar had obtained the approval of the Central Government, but that was merely a matter of administrative arrangement between the Central and Local Governments which is totally irrelevant for determining the identity of the Government which made the grant. Besides, the corporation having accepted the grant from the State Government was obviously estopped from contending that the land of which it continued in possession under that grant was not one by the State Government or that the State Government had not the authority to make the grant. If such contention is both not open to the Corporation and not tenable on the merits., it would follow that the impugned notification was fully justified by the, provisions under s. 81 of the Jabalpur Corporation Act.
DECISION ??

Apart from this question of pleading, we consider that there is no merit in the contention even otherwise.

What we desire to point out is that if the State of Madhya Pradesh was or must be deemed to have been the transferee of the property under the communication dated April 5, 1930, the validity of the notification under s. 81 could not be challenged

We have already set out the terms by which the transfer of the land was communicated to the Municipal Committee. The preamble recites that is what being communicated is the order of the Government of the Central Provinces

What we desire to point out is that if the State of Madhya Pradesh was or must be deemed to have been the transferee of the property under the communication dated April 5, 1930, the validity of the notification under s. 81 could not be challenged.

Apart from this question of pleading, we consider that there is no merit in the contention even otherwise.

No doubt, the communication refers to the fact that previous to making the grant the Government of C. P

If such contention is both not open to the Corporation and not tenable on the merits., it would follow that the impugned notification was fully justified by the, provisions under s. 81 of the Jabalpur Corporation Act.

Further, in Condition 3 which speaks of what was to happen if the land was resumed by Government for any Government purpose the reference to Government again is to the State Government.

If condition 1 is broken the land shall be liable to be divested under section 38(2) and resumed by Government .and no compensation whatsoever shall be payable to the Municipal Committee upon such resumption.

If the land. is resumed by Government for any Government purpose the provisions of Section 38(3) will apply.

The land thus obtained was being used by the Municipal Committee in accordance with the condition of the transfer as a public garden.

This was opposed both by the State of Madhya Pradesh as well as the Hitkarini Sabha and the learned Judges dismissed this petition.

An application for a certificate of fitness for appeal to this Court filed by the Corporation was also dismissed and therefore the present appeal has been filed by special leave obtained under Art. 136 of the Constitution.

Starting from this premise, they concluded that the notification could not be sustained under the terms of s. 81.

-By a communication dated April 5, 1930, from the Secretary to the Government of the Central Provinces addressed to the Commissioner Jabalpur Division, certain Nazul land was made available to the Municipal Committee of Jabalpur.

The land shall vest in the Municipal Committee subject to the following conditions
The land shall be used only for the purpose of a garden and no part of it shall be used for any other purpose without the previous sanction of the Local Government.

A hostel or boarding house of a public institution-the Hitkarni Mahavidyalaya had been located in a building constructed to the north of the Public Garden maintained by the Corporation.

(The expression Provincial Government was amended so as to read State Government by the Adaptation of Laws Order).

Mr. Chatterji-learned Counsel for the appellant Corporation submitted to us that the learned Judges of the High Court bad wrongly applied the saving in s. 3 (1) of Act III of 1940 to sustain the resumption of land under the impugned notification.

Secretary to the Government of the Central Provinces

Save in exceptional cases, parties should be held strictly to their pleadings

The preamble recites that is what being communicated is the order of the Government of the Central Provinces.

By a communication dated April 5, 1930, from the Secretary to the Government of the Central Provinces addressed to the Commissioner Jabalpur Division, certain Nazul land was made available to the Municipal Committee of Jabalpur.

To confine a party to his pleadings, particularly to his allegations as regards facts is dictated not merely by the need for orderliness in these proceedings but for avoiding surprise to the other party and consequent injustice resulting therefrom.

if the State of Madhya Pradesh was or must be deemed to have been the transferee of the property under the communication dated April 5, 1930, the validity of the notification under s. 81 could not be challenged.

for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences

Besides, the corporation having accepted the grant from the State Government was obviously estopped from contending that the land of which it continued in possession under that grant was not one by the State Government or that the State Government had not the authority to make the grant


Das Gupta, J. This appeal by special leave is against the order of the High Court at Allahabad under s. 133 of the Code of Criminal Procedure. The three appellants carry on the trade of auctioning vegetables. These vegetables, it appears, are brought in carts which are parked on the public road outside the building where the auctioning takes place. There was some dispute between these appellants and the Municipal Board which it is suggested by the appellants was really behind the move to get this order under s. 133 passed against them. It is unnecessary, however, for us to consider that matter. What appears to be clear is that the trade is carried on in a private house in the subzimandi quarter and it does happen that some amount of inconvenience is caused to people who pass by the public road because of the carts which necessarily come near this house. The real question is, whether because this trade of auctioning vegetables which the appellants carry on in their private house produce the consequence that people passing by the road are put to inconvenience, action can be taken under s. 133 of the Code of Criminal Procedure.
The High Court seems to be of the opinion - when it is clear that the business of auctioning vegetables cannot be carried on without causing obstruction to the passers by, the conduct of the business can be prohibited, even though it is carried on in a private place. It seems to us that this proposition has been put too widely. Section 133 of the Code of Criminal Procedure empowers action by the District Magistrate, Sub-Divisional Magistrate of Magistrate 1st class to remove public nuisances in certain circumstances. Two out of the several cls. of s. 133(1) in which these circumstances are set out, with which we are concerned, are the first and second clauses. The first clause provides for action by Magistrate where he considers, on receiving a police-report or other information and on taking such evidence as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public or from any public place. The second clause deals with the position where the conduct of any trade or occupation or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated. It is difficult to see how the first clause can have any application.
Unlawful obstruction, if any, is certainly not caused by the people who carry on the trade of auctioning. If the obstruction caused by keeping the carts on the road can be considered to be unlawful obstruction within the meaning of this clause - about which we express no opinion action can be taken against the persons causing such obstruction. The obvious difficulty in the way of that might be that the persons who bring the carts are not the same from day do day. But whether or not any action is possible under s. 133 against the persons bringing the carts, we are unable to agree that merely because the appellants carry on auctioning in connection with which the carts are brought, they can be considered to have caused the obstruction. In our opinion, the appellants cannot be considered to be the persons causing obstruction. Turning now to the next clause, the question arises how the conduct of this auctioning trade is injurious to the health or physical comfort of the community. Undoubtedly, some amount of noise the auction is going on. That however is a necessary concomitant of buying and selling large quantities and it will be unreasonable to think that merely because some amount of noise is caused which people preferring perfect peace may not like, this is injurious to the physical comfort, or health of the community. It appears to us that the conduct of trades of this nature and indeed of other trades in localities of a city where such trades are usually carried on, is bound to produce some discomfort, though at the same time resulting perhaps in the good of the community in other respects. If a trade like auctioning which has to be carried on as necessary for the well being of the community, some amount of noise has to be borne in at least that part of the town where such trade is ordinarily carried on.
In making the provisions of s. 133 of the Code of Criminal Procedure, the legislature cannot have intended the stoppage of such trades in such part of the town, merely because of the discomfort caused by the noise in carrying on the trade. In our opinion therefore, the slight discomfort that may be caused to some people passing by the road or living in the neighbourhood cannot ordinarily be considered to be such as to justify action under s. 133 of the Code of Criminal Procedure. We do not think that the orders are justified under s. 133.
DECISION ??


Appeal from the judgment and order dated December 21, 1961, of the Calcutta High Court in Cr. A. No. 423 of 1958. K. Chakravarty, for the appellant. C. Mazumdar, for respondent No. 1. N. Mukherjee, P. K. Mukherjee for P. K. Bose, for the respondent No. 2. 1962. August 3. The Judgment of the Court was delivered by SINHA, C.J.-This appeal on a certificate of fitness granted by the High Court under Act 134(1), (c). of the Constitution, is directed against the order of a Division Bench of the Calcutta High Court dated December 21, 1960, setting aside the order of acquittal passed by the trial Magistrate, dated July 2, 1958. We heard this appeal on the eve of the long vacation and pronounced our order to the effect that the appeal was allowed and the order of acquittal was to stand, and that reasons would be given later. It appears that the appellant, who it a practising lawyer, had been employed by the respondent to work for him to investigate the title to some property which the latter was about to purchase, sometime in October 1952. The prosecution case was that the respondent had entrusted the. sum of Rs. 5000/- to the appellant for depositing in Court in connection with an application in respect of the proposed transaction, under the Bengal Money Lenders Act, and that the appellant having been so entrusted with the money, in breach of trust, misappropriated the amount, thus causing loss to his client. The appellant was, therefore, charged under s. 409 of the Indian Penal Code, with having committed criminal breach of trust in respect of the sum of Rs. 5000/- , which had been entrusted to him as a lawyer on behalf of the respondent.
The appellant defense was that the case, against him was false and that he had been falsely implicated for reasons which need not be stated. In order to substantiate the charge against him, the complainant (now respondents examined himself and a number of witnesses. He also adduced in evidence a certain document, marketed Ex. 1, purporting to be a letter in the handwriting of the appellant, to show that Rs. 4200/- being a portion of the amount of Rs. 5000/- required for the deposit, had been asked for by the appellant. It also con- tained writings in the hand of the complainant owing that there was correspondence in the matter of the deposit. That was a very important piece of evidence, which if genuine could go a long way to prove the case against the appellant. But the appellant challenged the document as a forgery in material parts, and cross- examined the complainant who had produced the document. In spite of the fact that the complainant was very pointedly cross-examined with a view to showing that the document placed before the Court was a forgery in material parts, the complainant did not take any steps to get an expert on handwriting examined. The trial Court, on an examination of-the evidence, oral and documentary, came to the conclusion that the case against the accused had not been proved and acquitted him. The complainant preferred an appeal to the High Court against the order of acquittal, which was heard by a Division Bench, The High Court took the view that, in the circumstances of the case, there should be retrial by another magistrate, who should give an opportunity to the complainant to adduce the evidence of a handwriting expert in order to establish the genuineness of the questioned document. Apparently, the High court, sitting in appeal on the judgment of the acquittal, passed by the learned Magistrate, was not satisfied as to the genuineness of the questioned document. Otherwise it could have pronounced its judgment one way or the other, on the merits of the controversy, whether or not the prosecution had succeeded in bringing the charge home to the accused. If it were not a case between a lawyer as an accused and his client as the complainant, perhaps the High Court may not have taken the unusual course of giving a fresh opportunity to the complainant to have second round of litigation, to the great prejudice of the accused.
In this connection, the following observations of the High Court may be extracted in order to show the reasons.for the unusual course it took in this case Thus there can be no doubt that this was a document of considerable importance. According to the prosecution it clearly showed the respondents connection with the sum of Rs. 4200/- which was a part of the sum of Rs. 5000/-, the subject matter of the charge. According to the respondent, the figures 4200 and the Bengali word sankranta were for- geries just as at the bottom of the document the word yes and the signature of the res- pondent with date were also forgeries. This case was clearly put by the respondent to Bimla, Krishna Ben and it was suggested to him that the- impugned portions of the document were clear forgeries made by the appellant in order to falsely implicate the respondent. It must be said that inspite of this challenge, the appellant took no steps what. ever to produce expert evidence to aid the court in coming to a conclusion as to the authorship of the impugned portion of the document. It is true that expert evidence cannot always be a final settler still in a call of this kind, it is eminently desirable that the court should be assisted by a qualified expert since almost the whole case depends upon proof of the fact whether the impugned portions of that document were in the hand of the respondent Comment was also made by the Magistrate on the appellants failure to call expert evidence. In one sense that comment was justified but in a case of this kind between lawyer and client we think the matter cannot be left, where it is. In view of the fiduciary relation. ship between the parties it is as much necessary in the interest of, the prosecution as in. the interest of the accused that the whole matter should be cleared up, and no steps should be spared which might ensure complete justice between the parties. If it were an ordinary case between one litigant and another, we might have hesitated at this dis- tance of time to send the case back even though the prosecution did not avail of the opportunity of proving its own case. In all civilised countries, criminal jurisprudence has firmly established the rule that an accused person should not be placed on trial for the same offence more than once, except in very exceptional circumstances. In this case, the complainant had the fullest opportunity of adducing all the evidence that he was advised would be necessary to prove the charge against the accused person. It was not that he proved for the examination of an expert and that opportunity had been denied to him. The prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial Court.
That Court was not satisfied that evidence was adequately reliable to bring the charge home to the accused. The accused was thus acquitted. On appeal, it was open to the High Court to take a different view of the evidence, if the facts and circumstances placed before it could lead to the conclusion that the appreciation of the evidence by the trial Court was so thoroughly erroneous as to be wholly unacceptable to the Appellate Court. If the High Court could come to the conclusion, it could have reversed the judgment and converted the order of acquittal into an order of conviction. But it should not have put the accused to the botheration and expense of a second trial simply because the prosecution did not adduce all the evidence that should, and could, have been brought before the Court of first instance. It is not a case where it in open to the Court of Appeal, against an order of acquittal, to order a retrial for the reasons that the trial Court has not given the prosecution full opportunity to adduce all available evidence in support of the prosecution case. It has no where been suggested that the trial Magistrate had unreasonably refused any opportunity to the prosecution to adduce all the evidence that it was ready and willing to produce. That being so, the High Court, in our judgment, entirely misdirected itself in setting aside the order of acquittal and making an order for a fresh trial by another Magistrate, simply on the ground that the case was between a lawyer and his client. Simply because the accused happened to be a lawyer would not be a ground for subjecting him to harassment a second time, there being no reason for holding that his prosecutor had not a fair chance of bringing the charge home to him. In our opinion, the High Court gave way to considerations which were not relevant to a criminal trial. The High Court was not sitting on a disciplinary proceeding for professional misconduct. It had to apply the same rules of criminal jurisprudence as. apply to all criminal trials, and, in our opinion, the only. reason given by the High Court for ordering retrial is against all well-established rules of criminal jurisprudence. The fact that the appellant is a practising lawyer does not entitle him to any preferential treatment when he is hauled up on a criminal charge, even as he is not subject to any additional disability because the cam was between a lawyer and his client. There was no relationship of lawyer and client so far as the criminal case was concerned.
DECISION ??

the complainant did not take any steps to get an expert on handwriting examined.

That Court was not satisfied that evidence was adequately reliable to bring the charge home to the accused. The accused was thus acquitted.

That was a very important piece of evidence, which if genuine could go a long way to prove the case against the appellant.

That was a very important piece of evidence, which if genuine could go a long way to prove the case against the appellant.

The prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial Court.

That Court was not satisfied that evidence was adequately reliable to bring the charge home to the accused. The accused was thus acquitted.


Appeal by special leave from the judgment and decree dated December 1, 1955, of the Madras High Court in second Appeal No. 736 of 1953. Ganapathy Iyer, R. Thiagarajan and G. Gopalakrishnan, for the appellants. S. Prashar, A. S. Chaturvedi and K. R. Chaudhari, for the respondent. 1962. November 30. The judgment of the Court was delivered by MUDHOLKAR, J. -Only one question arises for consideration in this appeal by special leave and that is the meaning to be given to the expression final decision occurring in the first proviso to s. 28 A of the Provincial Insolvency Act, 1920 (Act No. 5 of 1920), introduced by Act No. 25 of 1948. For appreciating the argument advanced before us a few facts have to be stated. Venkata Reddy, the father of the appellants, was adjudicated an insolvent by the Sub-Court, Salem in I. P. No. 73 of 1935. At that time only the appellants 1 and 2 were born while the third appellant was born later. The fathers one-third share was put up for auction by the Official Receiver and was purchased by one Karuppan Pillai for Rs. 80/-. The Official Receiver then put up for auction the two-thirds share belonging to appellants 1 and 2 on July 27, 1936, which was purchased by the same person for Rs. 341/-. He sold the entire property to the respondent Pethi Reddy on May 25, 1939, for Rs. 300/-. The appellants instituted a suit on February 1, 1.943, for the partition of the joint family property to which suit they made Pethi Reddy a party and claimed thereunder two- thirds share in the property puchased by him. In that suit it was contended on behalf of the respondent that on their fathers insolvency the share of the appellants in the joint family property also vested in the Official Receiver and that he had the power to sell it. The contention was negatived by the trial court which passed a preliminary decree for partition in favour of the appellants.
The decree was affirmed in appeal by the District judge and eventually by the High Court in second appeal, except with a slight variation regarding the amount of mesne profits. The decision of the High Court is dated November 18, 1946. On January 18, 1946 the appellants made an application for a final decree which was granted ex parte on August 17, 1946. At the instance of the present respondent this decree was set aside. By that time the new provision, that is, s. 28 A of the Provincial, Insolvency Act, had come into force. On the basis of this provision it was contended by the respondent that the appellants were not entitled to the allotment of their two-thirds share in the property purchased by him inasmuch as that share had also vested in the Official Receiver. The District Munsif held that Act 25 of 1948 which introduced s. 28 A did not affect the preliminary decree for partition since it had been passed on August 20, 1943. He, therefore, restored the ex parte final decree which had been set aside on December 17, 1950. The appeal preferred by the respondent against the decision of the District Munsif was dismissed by the Principal Subordinate judge, Salem, whereupon he preferred a second appeal before the High Court.
The High Court allowed the appeal and dismissed the application of the appellant for passing the final decree, Section 28A of the Provincial Insolvency Act runs as follows The property of the insolvent shall comprise and shall always be deemed to have comprised also the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge Provided that nothing in this section shall affect any sale, mortgage or other transfer of the property of the insolvent by a Court or Receiver or the Collector acting tinder s. 60 made before the commencement of the Provincial Insolvency (Amendment) Act, 1948, which has been the subject of a final decision by a competent Court Provided further that the property of the insolvent shall not be deemed by reason of anything contained in this section to comprise his capacity referred to in this section in respect of any such sale, mortgage or other transfer of property made in the State of Madras after the 28th day of July, 1942. and before the commencement of the Provincial Insolvency (Amendment) Act, 1948. The objects and reasons set out in the bill which sought to introduce this provision were to bring the provisions of the provincial insolvency Act in line with those of the Presidency Towns Insolvency Act in so far as the vesting of the joint family property in the Official Receiver upon the fathers insolvency was concerned. While under the Presidency Towns Insolvency Act, in a case of this kind, the disposing power of the father over the interest of his undivided sons also vests in the Official Receiver and not merely the fathers own interest in the joint family property there was divergence of opinion amongst the High Courts in India as to whether under the Provincial Insolvency Act the fathers disposing power over his undivided sons interest also vests in the Official Receiver. A Full Bench of the Madras High Court held in Ramasastrulu v. Balakrishna Rao (1) that it does not. It was in the light of this decision that in the appellants suit for partition, a preliminary decree was passed with respect to their two- thirds interest in the joint family property which had been sold by the Official Receiver. In the course of the decision of the Full Bench a suggestion was made that the legislature should step in and bring the provisions of the Provincial Insolvency Act in the relevant respect in line with those of the Presidency Towns Insolvency Act. The new provision makes it clear that the law is and has always been that upon the fathers insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. The-provision is thus declaratory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court. The short question, therefore. is whether the preliminary decree for partition passed in this case which was affirmed finally in second
 I.L.R. 1943 Mad. 83. appeal by the High Court of Madras can be regard as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon arc concerned, be deemed to be a final decision The word decision even in its popular sense means a concluded opinion (see Strouds Judicial Dictionary--3rd ed. Vol. 1, p. 743). Where, therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observed The mere declaration of the rights of the plaintiff by the preliminary decree, would, in our opinion not amount to a final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not become final. It is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by ss. 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a Court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be modified and amended. Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when so far as, ,the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicate between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mort- gage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees--a preliminary decree and a final decree-the decree which would be executable would be the final decree But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to s. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its. correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court pass- ing that decree. The High Court, however, thinks that a decision cannot be regarded as final if further proceedings are required to be taken for procuring the relief to which a party is held entitled by that decision. In support of its view the High Court has referred to the following observations in in re A Debtor(1) It is clear., therefore, that further proceedings will be necessary to get the money out of court and I think it is also clear that the order of October 24, in its own terms, did not finally determine. the right of the petitioner, or any one else, in respect of the sum to be paid. In my opinion, therefore, the order is not a final order In that case the Divorce Court made an order that the co- respondent do within seven days from the service of this order pay into Court the sum of pound 67 Is. 9d. being the amount of the petitioners costs, as taxed and certified by one of the registrars of this Division. The order was made in that form because at that time the ultimate fate of the petition was undecided. No doubt, the decree nisi had been passed but it had yet to be made absolute land the right of the petitioner to receive the costs might never have been brought to fruition. The money had therefore to be paid into the court. A little latter a further order was made by the President of the Divorce Court in these terms Upon hearing the solicitors for the petitioner I do order that the order herein dated the 11th day of July 1928 be varied and that (the debtor) the co-respondent do within seven days from the service of this order pay to Messrs H. L. Lumley Co., of 35 Picadilly W. 1, the solicitors of the petitioner, the sum of pound 67 Is. 9d. being the amount of the petitioners taxed costs as taxed and certified by one of the (1)1929 2 Ch, 146. registrars of this Division, the said solicitors undertaking to lodge in Court any sums recovered under this order. Pursuant to this order the solicitors gave an undertaking required by the Court to the registrar on October 26. On November 5, the decree nisi was made absolute. On January 2, 1929, a bankruptcy notice was issued by the solicitors against the debtor, for payment to them of the amount of pound 67 1 s. 9d. The co-respondent did not comply with the bankruptcy notice and accordingly on January 27, the solicitors presented a bankruptcy petition against him. Over-ruling the objection by the co-respondent, that is, the debtor that the bankruptcy notice was bad on, amongst other things, the ground that the second order made by the President of the Divorce Division was not a final order within sub-s. 1 (g) of s. 1 of the Bankruptcy Act, 1914, the registrar made a receiving order. In appeal it was contended that the receiving order was wrong because the solicitors were not the creditors of the debtor and also because the order for payment of the costs to them was not a final order. While upholding the latter contention Lord Hanworth, M. R., said what has been quoted above and relied upon by the High Court. Upon the particular facts of the case the order was clearly not a final order and in making the observations quoted above the Master of Rolls did not formulate a test for determining what could be regarded as a final order in every kind of case. The observations of the Master of Rolls must be read in the context of the facts of the case decided by him. Read that way those observations do not help the respondents. Apart from this, the short answer to the reason given by the High Court is that even a money decree passed in a suit would cease to be a final decision because if the judgment- debtor against whom the decree is pawed does not pay the amount voluntarily execution proceedings will have to be taken for re- covering the amount from him. It would thus lead to an absurdity if the test adopted by the High Court is accepted. In support of the High Courts view a few decisions were cited at the bar but as they are of no assistance we have not thought it fit to refer to them. We may, however, refer to a decision of this court upon which reliance was placed by the respondents. That is the decision in Vakalapudi Sri Ranga Rao and others V. Mutyala Ammanna (1) in which it was held that a particular order was not a final decision within the meaning of the first proviso to S. 28-A. There, in a suit for partition and another suit for possession of the suit property and arrears of rent, it was contended that upon the fathers insolvency the Official Receiver was in- competent to sell the sons interest in the joint family property. The contention was negatived by the trial court but upheld in appeals by the Subordinate judge who remanded the suits to the trial court with certain directions. Appeals preferred against his decision were dismissed by the High Court. Before the decision of the suits after remand, the Amending Act, XXV of 1948 came into force and it was contended before the trial court that in view of the new provision the sale by the Official Receiver must be held to be good even so far as the sons interest was concerned. This contention was negatived by the trial court on the ground that the decision of the High Court on the point was a final order within the meaning of the proviso.
The District judge, before whom appeals were preferred, however, negatived the contention and held that there was no final order with regard to the sale by the Official Receiver. The High Court reversed the decision of the District judge but this Court held that the orders of remand made by the Subordinate Judge and upheld by the High Court were interlocutory orders as also were the orders of C.A. No. 634 of 1957, decided on March 29, 1961. the High Court in the appeals prefer-red before it and as such could be challenged in the appeal preferred before this Court against the decision of the High Court in the appeal against the final decree in the suit. In the case before us the preliminary decree was never challenged at all by preferring any appeal and therefore, the matters conclude by it are not open to challenge in an appeal against the final decree. Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of s. 105, Code of Civil Procedure. It will thus be seen that the decision relied upon has no application to the facts of this case. Our conclusion, therefore, is that in this case the sale made by the Official Receiver during the insolvency of the appellants father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser at the Official Receiver had no power to effect that sale. Nothing more was required to be established by the appellants before being entitled to the protection of the first proviso to s.28A.
Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application in that behalf. In the result we allow the appeal, set aside the judgment and decree of the High Court and restore that of the trial court as affirmed in appeal by the learned Subordinate judge. Costs in this court and in the High Court will be borne by the present respondent.
DECISION ??

Only one question arises for consideration in this appeal by special leave and that is the meaning to be given to the expression final decision occurring in the first proviso to s. 28 A of the Provincial Insolvency Act, 1920 (Act No. 5 of 1920), introduced by Act No. 25 of 1948.

A preliminary decree passed, whether it is in a mort- gage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive.

is the meaning to be given to the expression final decision occurring in the first proviso to s. 28 A of the Provincial Insolvency Act, 1920 (Act No. 5 of 1920), introduced by Act No. 25 of 1948.

Venkata Reddy, the father of the appellants, was adjudicated an insolvent

Act 25 of 1948 which introduced s. 28 A did not affect the preliminary decree for partition since it had been passed on August 20, 1943. He, therefore, restored the ex parte final decree which had been set aside on December 17, 1950.

in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants.

Only one question arises for consideration in this appeal by special leave and that is the meaning to be given to the expression final decision occurring in the first proviso to s. 28 A of the Provincial Insolvency Act, 1920 (Act No. 5 of 1920), introduced by Act No. 25 of 1948.

the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court.

The short question, therefore. is whether the preliminary decree for partition passed in this case which was affirmed finally in second
 I.L.R. 1943 Mad. 83. appeal by the High Court of Madras can be regard as a final decision

The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it

This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court pass- ing that decree

The money had therefore to be paid into the court

The observations of the Master of Rolls must be read in the context of the facts of the case decided by him. Read that way those observations do not help the respondents

Nothing more was required to be established by the appellants before being entitled to the protection of the first proviso to s.28A

Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application in that behalf

The decree was affirmed in appeal by the District judge and eventually by the High Court in second appeal, except with a slight variation regarding the amount of mesne profits. The decision of the High Court is dated November 18, 1946.

On January 18, 1946 the appellants made an application for a final decree which was granted ex parte on August 17, 1946. At the instance of the present respondent this decree was set aside

He, therefore, restored the ex parte final decree which had been set aside on December 17, 1950. The appeal preferred by the respondent against the decision of the District Munsif was dismissed by the Principal Subordinate judge, Salem, whereupon he preferred a second appeal before the High Court

In the course of the decision of the Full Bench a suggestion was made that the legislature should step in and bring the provisions of the Provincial Insolvency Act in the relevant respect in line with those of the Presidency Towns Insolvency Act.

It would be relevant to refer to s. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its. correctness in any appeal which may be preferred from the final decree.

We may, however, refer to a decision of this court upon which reliance was placed by the respondents. That is the decision in Vakalapudi Sri Ranga Rao and others V. Mutyala Ammanna

No. 634 of 1957, decided on March 29, 1961. the High Court in the appeals prefer-red before it and as such could be challenged in the appeal preferred before this Court against the decision of the High Court in the appeal against the final decree in the suit.

Venkata Reddy, the father of the appellants, was adjudicated an insolvent by the Sub-Court, Salem in I. P. No. 73 of 1935

The fathers one-third share was put up for auction by the Official Receiver and was purchased by one Karuppan Pillai for Rs. 80/-.

The Official Receiver then put up for auction the two-thirds share belonging to appellants 1 and 2 on July 27, 1936, which was purchased by the same person for Rs. 341/-. He sold the entire property to the respondent Pethi Reddy on May 25, 1939, for Rs. 300

No doubt, in suits which contemplate the making of two decrees--a preliminary decree and a final decree-the decree which would be executable would be the final decree But the finality of a decree or a decision does not necessarily depend upon its being executable.

The short question, therefore. is whether the preliminary decree for partition passed in this case which was affirmed finally in second
 I.L.R. 1943 Mad. 83. appeal by the High Court of Madras can be regard as a final decision.

This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court pass- ing that decree.

In the case before us the preliminary decree was never challenged at all by preferring any appeal and therefore, the matters conclude by it are not open to challenge in an appeal against the final decree.

Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of s. 105, Code of Civil Procedure.

It will thus be seen that the decision relied upon has no application to the facts of this case.

Only one question arises for consideration in this appeal by special leave and that is the meaning to be given to the expression final decision occurring in the first proviso to s. 28 A of the Provincial Insolvency Act, 1920 (Act No. 5 of 1920), introduced by Act No. 25 of 1948.

He, therefore, restored the ex parte final decree which had been set aside on December 17, 1950.

The appeal preferred by the respondent against the decision of the District Munsif was dismissed by the Principal Subordinate judge, Salem, whereupon he preferred a second appeal before the High Court.
The High Court allowed the appeal and dismissed the application of the appellant for passing the final decree

We are concerned here only with the first proviso.

This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court.

The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it.

It would be relevant to refer to s. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its. correctness in any appeal which may be preferred from the final decree.

The order was made in that form because at that time the ultimate fate of the petition was undecided.

in Vakalapudi Sri Ranga Rao and others V. Mutyala Ammanna (1) in which it was held that a particular order was not a final decision within the meaning of the first proviso to S. 28-A.

At the instance of the present respondent this decree was set aside.

On January 2, 1929, a bankruptcy notice was issued by the solicitors against the debtor, for payment to them of the amount of pound 67 1 s. 9d.

Read that way those observations do not help the respondents.

Venkata Reddy, the father of the appellants, was adjudicated an insolvent by the Sub-Court, Salem in I. P. No. 73 of 1935.

At that time only the appellants 1 and 2 were born while the third appellant was born later.

The appellants instituted a suit on February 1, 1.943, for the partition of the joint family property to which suit they made Pethi Reddy a party and claimed thereunder two- thirds share in the property puchased by him.

On January 18, 1946 the appellants made an application for a final decree which was granted ex parte on August 17, 1946.

A preliminary decree passed, whether it is in a mort- gage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive.

in this case the sale made by the Official Receiver during the insolvency of the appellants father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser at the Official Receiver had no power to effect that sale.

Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application in that behalf.

A decision is said to be final when so far as, ,the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment.

the finality of a decree or a decision does not necessarily depend upon its being executable.

Where, therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law.

Similarly, a final decision would mean a decision which would operate as res judicate between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code.

Further, a preliminary decree cannot be equated with an interlocutory order within the meaning of s. 105, Code of Civil Procedure.

The word decision even in its popular sense means a concluded opinion (see Strouds Judicial Dictionary--3rd ed. Vol. 1, p. 743).

In the case before us the preliminary decree was never challenged at all by preferring any appeal and therefore, the matters conclude by it are not open to challenge in an appeal against the final decree.

The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it.

Upon the particular facts of the case the order was clearly not a final order and in making the observations quoted above the Master of Rolls did not formulate a test for determining what could be regarded as a final order in every kind of case.

The observations of the Master of Rolls must be read in the context of the facts of the case decided by him. Read that way those observations do not help the respondents.