SHARMA, J. - (1.) THIS is an application for a certificate under Art. 133 of the Constitution of India for filing an appeal to the Supreme Court and arises out of a suit for a declaration that the plaintiff Maharaja Umraosingh was entitled to succeed to the Jagir of Indergarh, the last holder of which, Maharaja Sumersingh had died without leaving any male issue. The suit was in the first instance brought by Maharaja Umrao Singh applicant No. 1 and Maharaja Udaibhan Singh, applicant No. 2 was made a defendant pro forma. Later on, Maharaja Udaibhan Singh was transposed as plaintiff No. 2. The suit was contested by Shri Bhagwati Singh and Svt. Shekhawatji, opposite parties, who were the principal defendants, on the ground inter alia that the suit was not cognisable Civil Courts. The learned District Judge, Kotah, gave effect to this plea and dismissed the suit. The plaintiffs appealed to this Court, but were unsuccessful. Now they pray for a certificate under Art. 133 of the Constitution for filing appeal to Supreme Court.
(2.) SUB-Art. 1 of Art. 133 which is relevant to this case runs as follows : - (1) An appeal shall lie to the Supreme Court from any judgment decree or final order in a Civil proceedings of a High Court in the territory of India, if the High Court certifies : - " (a) That the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or (b) that the judgment decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court " and where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub clause (c), if the High Court further certifies that the appeal involves some substantial question of law. " The suit was valued at Rs. 50,000/- which was alleged to be the annual income of the property in dispute. The defendants alleged in their written statement that the annual income was Rs. 1,50,000/- or 2,00,000/- and the value of the property in dispute was Rs. 25,00,000/- or 30,00,00/. Thus one of the conditions laid down in the Article that the amount or value of the subject matter of the dispute in the court of first instance and still in dispute not be less than Rs. 20,000/- is unquestionably fulfilled. The learned counsel for the opposite party, however objects to the grant of certificate on the following two grounds : - (1) That the appeal does not involve substantial question of law. (2) That the decree of this Court is not open to appeal under Art. 133 as the suit was brought before the Constitution came into force and, therefore, Art. 133 which is not retrospective in its effect does not apply and as the Rajasthan High Court Ordinance of 1949 which was in force when the action was brought provided no appeal against the judgment or decree of Rajasthan High Court, the decree of this Court became final. So far as the first objection is concerned, I have no difficulty in overruling it. The appeal involves an important question of jurisdiction, i. e, whether a suit relating to the succession to a Jagir within the territories of erstwhile Kotah State is cognisable by Civil Courts and for that Art. 7 (3) of the Covenant of the United States of Rajasthan has to be interpreted. There can, therefore, be no question that the appeal involves a substantial question of law. The second question is, no doubt, much more complicated and not easy to decide. The Learned counsel for the opposite party has argued that although the decree in question was passed after the Constitution had come into force, yet the suit was filed on the 2nd August, 1949, i. e, before the Constitution came into force. At that time, no appeal was provided against a judgment or decree of a Division Bench of the High Court of Rajasthan. Sec. 40 of Rajasthan High Court Ordinance lays down that until a Court is constituted in pursuance of sec. 39 of this Ordinance, or of any other law relating to the establishment of a Court superior to the High Court to hear appeals therefrom, the High Court shall be the highest Court of appeal, reference and revision in the State and shall have jurisdiction to entertain and dispose of such appeals, revisions, references, cases and other proceedings as it is empowered to entertain and dispose of under this Ordinance or any enactment or law in force in the State and no appeal shall lie from any judgment, decree or order of the High Court. The decree of this Court, therefore, which was passed, by a Division Bench became final and was not open to appeal to Supreme Court. Reliance has been placed by the learned counsel upon a number of rulings, but only the rulings reported in Examiner of Local Fund Accounts, Madras vs. C. Subramania Mudaliar & others (1) (AIR 1943 Mad. , 208.) and Thota Surayoa vs. Inspector Municipal Councils and Local Board, Madras & others (2) (AIR 1944 Mad. , 148.), have a direct hearing upon the point. In the former case, certain, applications were filed under the Madras District Municipalities Act when no right of appeal existed but later on an amendment was made in the rules framed under the said Act which provided an appeal in such cases. It was held by a Division Bench that no appeal would lie against the orders of such applications as the subsequent amendment of the rules could not apply to the case in question. In the later case the president and certain members of a Panchayat Board filed an application in the District Court against an order of sub-charge made against them by the Examiner of Local Funds Account and at that time, there was on provision in the Local Board Act for an appeal against the order of the District Judge. The Act was amended subsequently, providing for appeal and the order was passed thereafter. The president and other members who were unsuccessful in the application filed an appeal to the High Court. It was held that an appeal did not lie even though at the time, the order was passed, there was provision for an appeal. Other rulings cited by the learned counsel for the opposite party have no direct bearing upon the point before us. In the In re Athlumney Exparte Wilson (1) (1898 2 QB 547.) a creditor proved for a debt which carried interest at a rate exceeding 5 per cent. Afterwards on August 18 of the same year, the Bankruptcy Act 1890 was passed with a section postponing its operation until January, 1891. Sec. 43 of the said Act enacted as follows: - "where a debt has been proved upon a debtor's under the Principal Act and such debt includes or any pecuniary consideration in lieu of interest, such interest or consideration shall, for the purpose of dividend be calculated at a rate not exceeding 5 per cent, per annum, without prejudice to the right of creditor to receive out of the estate any higher rate of interest to which he may be entitled after all the debts proved in the estate have been paid in full. " The question was whether the said enactment operated so as to govern the distribution of dividend under a contract made under a scheme which had taken effect before the Act was passed or came into operation. It was held that the section was not retrospective in its operation and, therefore, did not apply to a debt including interest above 5 percent, proved under a scheme adopted by the court before the date of passing of the Act. It is clear that there was no question as to whether there being no appeal at the time when the proceedings began an order passed in those proceedings, after the right of appeal was conferred, could be appealed against. In Delhi Cloth & General Mills Co. Ltd. vs. Income Tax Commissioner, Delhi and another (2) (AIR 1927 PC 242.), it was contended on behalf of the Income Tax Commissioner that no appeal lay to His Majesty in Council from orders of a High Court in India made upon reference either under sec. 51 of the Indian Income Tax Act 1918 or under sec. 66 of the Act of 1922, and that the provision for appeal made by the Indian Income Tax (Amendment) Act 1926 could not apply to the case in question because the proceedings for assessment started before the 1st April, 1926, when the Amendment Act came into force. The orders appealed against were orders dated 6th January, 1926. Their Lordships, therefore, held that the section did not apply to orders because they were final at the date when it came into force, and it was not clearly provided that appeal shall lie against such orders. The case is distinguishable from the present case in as much as not only the decree against which an appeal is intended to the Supreme Court but even the appeal itself in which the decree has been made was filed after the Constitution came into force. In Shamsingh & others vs. Vir Bhan & others (3) (1942 Lahore 102.), a residential house of a non-agriculturist was attached before sec. 60 of the Code of Civil Procedure was amendment by Punjab Act 12 of 1940 and the residential house of non-agriculturist was made unattachable. Even the sale was made before the said amendment and the question that was raised by the judgment-debtor was that because the sale had not been confirmed, the amendment applied to the case and the attachment and sale could not be maintained. It was held that by the attachment and sale of the property the auction purchaser had got certain rights, which could not be defeated by an Act subsequently passed. This ruling too, has no concern with the question whether an order made appealable by an Act which came into force before that order was passed was open to appeal in view of the fact that no appeal was provided when the proceedings in which that order was passed, commenced. In the Colonial Sugar Refining Company Ltd. vs. Irving (1) (1903 ACP, 369.) it was held that the right of an appeal which existed at the time the action began could not be defeated by a subsequent law which took away such right of appeal. It was held that the right of appeal is not a mere procedural right. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating the procedure. It could not, therefore, be taken away, pending the action. As by the Act in question, the right of appeal was transferred from the King in Council to the High Court of Australia it was held that in principle, their Lordships saw no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested. Their Lordships, therefore, held that the appeal still lay to the King in Council, notwithstanding the fact that pending action, the right of appeal was transferred from the King in Council to the High Court of Australia. In that case too, their Lordships had not to deal with a case, in which right of appeal was conferred before the order against which appeal was sought but after the proceedings in which that order was passed. The question whether an appeal lay against an order made appealable by an Act passed before the said order, but after the proceeding giving rise to that order, directly arose before a full bench of Oudh Chief Court in the case of Devi Prasad vs. M. Phundanlal and others (2) (AIR 1942 Oudh, 291. ). Under the U. P. Encum bared Estate Act 25 of 1934, only one appeal was provided against the order of a Special Judge, second grade, under sec. 4 of the Act. A first appeal was filed against such an order before the 13th of September, 1939, on which date, by an amending act, a second appeal to the High Court was provided in certain circumstances. The order in appeal was passed after the 30th September, 1939. It was held by the majority that such an appeal lay. The learned Judges observed that a distinction should be drawn between the case where the right of appeal is taken away and the case where another right of appeal is added. The interference with the rights of the parties is clearly of a different nature in the two cases. The right of appeal is a positive right and it accrues at the time of the filing of a suit, but the absence of the right of appeal cannot be called a right at all. The prohibition of appeal by the law, at the time of the institution of the suit does not amount to a substantive or existing right accruing to the parties. It is a mere negation of such right. If the law, therefore choses to give such a right during the pendency of the case, there is no principle of law which prevents it from doing so. Therefore, a second appeal against the decree of the first appellate court lies under sec. 45 (2) (a) of the Act as amended by Act 11 of 1939 which came into force on the 30th September, 1939. Where the first appeal to the lower appellate court was filed before but decided after 30th September, 1939, two of the five judges, Thomas C. J. and Gulam Hussain J. dissented. With respect to the dissented Judges, the reasoning given by the majority appeals to me. It is well known cannon of law that Acts dealing with the procedure are generally retrospective in their effect. Right of appeal has, however, been held to be a substantive right and is considered to be vested in a suit or at the time, when he begins his action. It cannot, therefore be taken away during the pendency of the action. The prohibition of appeal by law existing at the time of the institution of the suit does not, however, amount to a substantive of existing right accruing to the parties. If therefore, an appeal, is provided before a particular order is given, against which the appeal is sought, the order can be appealed against even though the proceedings in which it was passed, began before the right of appeal was conferred. I am confirmed in this opinion also by the observations of Beaumont C. J. in Govindram Seksaria vs. Commissioner of Income Tax, Bombay (1) (AIR 1943 Bom. 122 ). In that case the assessment order in a case pending on 1st April, 1939, was made on 3rd January, 1940. Such orders were not appealable before the Income Tax Act was amended on 1st April, 1939, when for the first time, such orders became appealable. The Learned C. J. observed that the order having been made on 3rd January, 1940, it seemed to him rather difficult to see why the order was not appealable. Reliance was placed on 1905 A. C. P. 369. The learned Judge observed that in that case, the Privy Council were dealing with the statute which had put an end to the appeals to the Privy Council and they held that a right appeal is a substantive right and not a mere matter of procedure and that in the absence of clear language the statute should be construed as not applying to appeals pending when the statute was passed. Further on the learned Judge observed that it is one thing to say that a man filing a suit has a vested right to take his case to the highest tribunal then permissible ; it is going rather to say that if and when he obtains a decision from a court from which at the moment there is no appeal he will have a vested right to treat the order as final, although an appeal is permissible when the order is passed. In B. Suraj Singh vs. Harakh Chand and others (2) (AIR 1928 All. 143.), a Division Bench had before it a case in which an appeal was filed before a District Judge in a suit for arrears of rent exceeding Rs. 100/- but below Rs. 200/ -. A decree ex parte was passed and an application for setting aside the ex parte decree was rejected after the Tenancy Act of 1926 came into force. Under the said Act, an appeal was provided in such matters to a District. Judge against the orders of Assistant Collector First Class. Before that Act, however, no appeal was provided by Tenancy Act of 1901. The suit was filed before the Tenancy Act of 1926, came into force. It was held that because the order rejecting the application for setting aside the ex parte decree was passed after the coming into force of the Act of 1926, the right of appeal must be governed and the forum of the appeal must be determined with reference to the provisions of the said Act. One of the two Madras rulings which has been cited on behalf of the opposite party does not make in clear whether the orders against which appeal was given or after that. The ruling reported in 1944 Madras simply follows the ruling reported 1943 Madras p. 208 and another unreported case. No reasons are given for the opinion that there is no logical distinction between a right of appeal and a right to a final judgment without an appeal. With respect to the learned Judges of the Madras High Court, I prefer to follow the rulings cited on behalf of the applicant. I allow the application and certify the case to be a fit on for an appeal to Supreme Court under Art. 133 of the Constitution, RANAWAT, J.- I agree. . ;