Shiv Dayal, J.
1. This is an application under Article 133(1) of the Constitution of India.
2. Firstly, Shri Gupta claims a certificate under Sub-clause (a) on the ground that the value of the suit in the Court o first instance was more than Rs. 10,000/- and it was a suit instituted at a time when the Gwalior State Civil Procedure Code (Zabta Diwani) was in force and the parties had a right of appeal to the Privy Council of that State.
3. In order to appreciate this contention, the following dates are material. The suit was instituted on December 19, 1947 in the Court of the District Judge, Gwalior (then in the Gwalior State, a Princely State). The plaintiff's suit was dismissed on March 7, 1955 by the District Judge, Gwalior (then in the State of Madhya Bharat, a Part B State.) The plaintiff preferred an appeal to the High Court of Madhya Bharat on May 14, 1955. That appeal was transferred to this Court on the Reorganisation of States on November 1, 1956 and was decided by us on July 31, 1959. It is against this last mentioned judgment and decree of this Court that the petitioner seeks to take an appeal to the Supreme Court and wants us to issue a certificate under Article 133(1)(a), . It is the argument of Shri Gupta that on the day that the suit was instituted a right to prefer an appeal to the Privy Council (Judicial Committee), of the erstwhile Gwalior State vested in the parties and that was a substantive right, which could not be taken away. Therefore, the plaintiff is entitled to a certificate under Sub-clause (a) even though its conditions are not satisfied. In my opinion this contention is wholly untenable.
4. In respect of cases instituted in Courts of Princely States, the true position as to the maintainability of an appeal to the Supreme Court under Article 133(1)(a) of the Constitution, may be stated thus:
(1) If a litigant had before the Constitution actually filed his appeal before the Privy Council of the Princely State or had filed an application before that authority for leave to appeal to it then the Supreme Court will dispose of his appeal or application under Article 374(4) of the Constitution.
(2) If the judgment had been passed by the High Court of the Princely State before the Constitution but no appeal or application for leave to appeal therefrom had been actually filed in the Privy Council of that State, then it became a closed chapter and Article 133 does not come into play because it applies only to judgments passed after the commencement of the Constitution, Article 135 also cannot be invoked because the Federal Court could not immediately before the commencement of the Constitution, exercise any jurisdiction or power in relation to a judgment passed by a High Court of a Princely State.
(3) If the adverse judgment, decree or final order has been made by the High Court of the corresponding Part B State, or by the High Court of the 'corresponding new State' (after Reorganisation of States), an appeal will lie to the Supreme Court under Article 133 only when the conditions thereof are satisfied.
(4) At the date of the suit such a litigant had no right of further appeal from the judgment of the High Court of the Princely State ''to the Federal Court' or 'to the Supreme Court.' And his vested right of appeal to the Privy Council of that State came to an end when that authority was abolished.
5. From the decisions of the Supreme Court in Daji Sahib v. Shankar Rao, (1955) 2 SCR 872: ((S) AIR 1956 SC 29), Nathoolal v. Durga Prasad, (1955) 1 SCR 51: (AIR 1954 SC 355 and Garika-pati v. Subbiah Chaudhary, (S) AIR 1957 SC 540 the above propositions may be deduced as settled law.
6. Thus the petitioner can claim a certificate only under the third proposition. Now, the valuation of the present suit in the Court of first instance was below Rs. 20,000/-. As such, the petitioner cannot be granted a certificate under Article 133(1)(a).
7. It is then urged by the, learned counsel that this case be certified as a fit one for appeal to the Supreme Court under Sub-clause (c) of Article 133(1).
8. The petitioner's suit was for sale of immovable property which had been mortgaged with it in the year 1932 by Har Narain (defendant No. 1) On behalf of himself and his minor son Ramji Dass (defendant No. 2). Both father and son resisted the suit, although on different grounds. The son challenged the validity of the mortgage for want of legal necessity. The learned trial Judge found that the mortgage debt was incurred for running a flour mill and other business while the ancestral business was money lending and letting houses on rent. Holding that it was a new business started by the father and as such the mortgage was void and inoperative, he dismissed the suit. The finding of fact that Har Narain borrowed the money for that business was not challenged before us. In affirming the said judgment and decree, we have held that starting a flour mill could not be said to be an extension of the joint family business of money lending or letting of houses and, therefore, the mortgage was not effective and no decree for sale could be passed in favour of the mortgagee.
We have also held that although the word 'debt' in the second proposition of Brij Narain v. Mangla Prasad, 51 Ind App 129 : (AIR 1924 PC 50) includes a mortgage debt, yet the son's liability to pay that debt is only qua 'debt, and no decree for the enforcement of the mortgage could be passed. And since On the date of the suit the remedy of the mortgagee for personal liability of Har Narain had become barred by time, neither could a money decree be passed. In the result we have dismissed the appeal.
9. All our findings are based on settled law which is undoubted. We do not see any substantial question of law involved in this case which is fit to be taken to the Supreme Court. On these premises we seeno reason to grant a certificate under Article 133(1)(c).
10. Petition dismissed.
A.H. Khan, J.
11. I agree.