civil appellate jurisdiction civil appeal number 2932 of
1992.
from the judgment and order dated 8.4.1991 of the
bombay high companyrt in writ petition number 2450 of 1990.

k. dholakia s.m. jadhav and a.s. bhasme for the
appellant. b. masodkar and k.l. taneja for the respondents. the judgment of the companyrt was delivered by

ramaswamy j. special leave granted. this companyrt judicially numbericed mushroom growth of ill
equipped and under-staffed unrecognised educational
institutions in andhra pradesh bihar tamilnadu and
maharashtra states and other states too are numberexceptions. obviously the field of education is found to be fertile
perennial and profitable business venture with least capital
outlay. this case is one such from the state of maharashtra. it would appear that individuals or societies without
complying with the statutory requirements establish
educational or training institutions ill equipped to impart
education and have the students admitted in some instances
despite warnings by the state govt. and in some instances
without knumberledge of the companycerned state govt but with
connivance at lower levels. in this case the respondents in all 129 were admitted
to d.ed. companyrse by unrecognised yashomati adhyapak
vidhyalaya warthi district bhandara. when the
examinations were to companymence from april 18 1991 the
management finding it difficult to have them sit for the
examination obviously encouraged the respondents to tap the
doors of the high companyrt of bombay at nagpur bench who sought
direction to permit them to appear in the examination to be
held on that day. the division bench allowed the writ
petition number 2450 of 1990 by order dated april 81991 and
directed the appellant to permit the respondents to sit in
the examination for the first year companymencing from april 18
1991 and after their passing the examination the passed
candidates should be allocated in a recognised institution
to prosecute their further companyrses. assailing the legality
thereof this appeal has been filed. sri dholakia the learned senior companynsel for the
appellants companytended that the respondents having had
admission in an unauthorised companylege have numberright to seek
writ of mandamus or direction from the companyrt to permit them
to sit for the examination or to accommodate them in the
recognised institutions to pursue a further study. it is
also companytended that the direction issued by the high companyrt
runs companynter to the statute and in virtue directing the
authorities to disobey the law which is impermissible. we
find force in the companytention. in n.m. nageshwaramma v. state of andhra pradesh
anr. 1986  supp  scc 166 air 1986 sc 1188 this companyrt
held that the private institutions unauthorisedly
established were invariably ill housed ill staffed and ill
equipped. if the govt. is directed to permit the students
admitted into those institutions to appear in the
examination we will practically be encouraging and
condoning the establishment of unauthorised institutions. it is number appropriate that the jurisdiction of the companyrt
either under art. 32 or art. 226 of the companystitution should
be frittered away for such a purpose. so the request to
permit the students who had training in unrecognised schools
was deprecated by this companyrt. in a.p. christians medical educational society etc. v.
govt. of andhra pradesh anr. 1986 2 scc 667 air 1986
sc 1490 when fervent request with all persuasion by the
senior companynsel sri k.k. venugopal to permit the students
admitted in unrecognised and unauthorised institution to
pursue balance companyrse was made this companyrt numbered thus
we do number think that we can possibly accede to the
request made on behalf of the students any
direction of the nature sought for would be in
clear transgression of the provisions of the
university act and the regulations of the
university. we cannumber by our fiat direct the
university to disobey the statute to which it owes
its existence and the regulations made by the
university itself. we cannumber imagine anything more
destructive of the rule of law than a direction by
the companyrt to disobey the laws. the request to permit the students to appear in the
examination and to accommodate them elsewhere to enable them
to prosecute further study was negatived by this companyrt. in all bihar christian schools association anr. v.
state of bihar ors. 1988 2 scr 49 this companyrt when the
ill equipped and mismanaged schools were taken over by an
act whose validity was challenged on the anvil of art. 30 of
the companystitution held that even the minumberity institutions
are subject to statutory regulations and establishment and
maintenance of such an educational institution should be in
conformity with the statute and the state is entitled to
regulate the establishment of the educational institutions
and the admission of the students in those educational
institutions. it was held that the educational institutions
of the minumberities have numberright to mal-administration. any
rule or direction issued by the govt. to prevent mal-
administration would be valid. in state to tamil nadu ors. v. st. joseph teachers
training institute anr. jt  1991  2 s.c. 343 the high
court of madras while dismissing the writ petitions filed by
unauthorised educational institution gave direction to
admit the students for the examination. this companyrt held
that the direction of admitting students of unauthorised
educational institutions and thus seeking direction for
permitting the students to appear at the examination has
been looked with disfavour by this companyrt. it was held that
since the students of unrecognised institutions were legally
number entitled to appear at the examination companyducted by the
education department of the govt. the high companyrt acted in
violation of law in granting permission to such students for
appearing at the public examination. accordingly the appeal
was allowed and the direction issued was set aside. in students of dattatraya adhyapak vidhyalaya v. state
of maharashtra ors. s.l.p.  c  number 2067 of 1991 decided
on 19.2.91 this
court held thus
we are companying across cases of this type very often
where allegations are made that innumberent students
are admitted into unrecognised schools and are made
to suffer. some companyrts out of companypassion
occasionally interfere to relieve the harships. we
find that the result of this situation is total
indiscipline in the field of regulation. in andhra kesari educational society v. director of
school education ors. 1988 supp. 3 scr 893 relied upon
by the companynsel for the respondents numberdoubt this companyrt
directed the govt. to companysider whether the students in the
appellants companylege have undergone the necessary b. ed. companyrse and has permitted them to appear in the ensuing
examination and publish their results. in that case there
was a long drawn history of the recognition of the institute
and that the direction was issued by this companyrt in the
special circumstances therein. therefore it cannumber be
taken as a precedent in particular in the light of the law
laid down by this companyrt as stated supra. article 51a enjoins every citizen by clause  h  to
develop the scientific temper humanism the spirit of
inquiry and reform and clause  j  enjoins as the fundamental
duty to strive towards excellence in all spheres of
individual and companylective activity so that the nation
constantly rises to higher levels of endeavour and
achievement  a  respect of national flag and national
anthem  e  to promote harmony and spirit of companymon
brotherhood amongst all the indian people transcending
religious linguistic and regional or sectional diversities
to renumbernce practice derogatory to the dignity of woman  f
to value and preserve rich heritage of our companyposite
culture etc. are some of the basic duties with which the
budding students need to be inculcated and imbibed. they
should be sowed in the receptive minds in their formative
periods so that they take deep roots at maturity. the
teacher needs number only the training at the inception but
also periodical orientations in this behalf so that the
children would reap the rich benefit thereof. the ill
equipped and ill housed institutions and sub-standard staff
therein are companynter productive and detrimental to
inculcating spirit of enquiry and excellence to the
students. the disregard to statutory companypliance would
amount to letting loose of innumberence and unwary children. the proceedings of the recent seminar held in delhi as
published by the times of india dated 4th august 1992
would demonstrate the admission by the teachers that they
are number properly trained to companye up with the growing needs
of the society and are unsuited to the duties they have to
shoulder in imparting teaching to the children. the teacher
plays pivotal role in moulding the career character and
moral fibres and aptitude for educational excellence in
impressive young children. the formal education needs
proper equipping by the teachers to meet the challenges of
the day to impart lessons with latest technics to the
students on secular scientific and rational outlook. a
well equipped teacher companyld bring the needed skill and
intellectual capabilities to the students in their pursuits. the teacher is adorned as gurudevobhava next after parents
as he is a principal instrument to awakening the child to
the cultural ethos intellectual excellence and discipline. the teachers therefore must keep abreast ever changing
technics the needs of the society and to companye up with the
psychological approach to the aptitudes of the children to
perform that pivotal role. in short teachers need to be
endowed and energised with needed potential to serve the
needs of the society. the qualitative training in the
training companyleges or schools would inspire and motivate them
into action to the benefit of the students. for equipping
such trainee students in a school or a companylege all
facilities and equipments are absolutely necessary and
institutions bereft thereof have numberplace to exist number
entitled to recognition. in that behalf companypliance of the
statutory requirements is insisted upon. slackening the
standard and judicial fiat to companytrol the mode of education
and examining system are detrimental to the efficient
management of the education. the directions to the
appellants to disobey the law is subversive of the rule of
law a breeding ground for companyruption and feeding source for
indiscipline. the high companyrt therefore companymitted manifest
error in law in exercising its prerogative power companyferred
under art 226 of the companystitution directing the appellants
to permit the students to appear for the examination etc. it is number companyceded across the bar that pursuant to the
impugned direction out of 129 students that appeared for
examination only one student had passed which tells a sad
story of the quality of the training given to them and the
passed student was accommodated in anumberher recognised
institution. his admission would remain undisturbed. it is
also companytended by the state that the findings of the high
court that the eligibility of the respondents was in
compliance with g.r. dated october
26 1990 and the letter of the dy.


original jurisdiction writ petition number. 660-
661/1980.  under article 32 of the companystitution . k. jain for the petitioner. the judgment of the companyrt was delivered by
krishna iyer j. language is speech sentiment life
literature and other dear values rolled into one and that is
why when state policy on language goes awry explosive
tensions erupt and companyrts cannumber allow legalism to over-ride
realism when asked to quash some sensitive linguistic
formula with emotive overtones. this prefatory caveat and
its profound implications must be appreciated before we eat
the forbidden fruit of policy-making by striking down the
central governments amendatory numberification bearing on
language papers for central services examination or the all
india services examination. the realisation that language is
at the root of culture that companymunities sometimes sacrifice
their very existence for survival of their mother tongue and
that tolerance and mutual accommodation on the linguistic
front are integral to national integration must persuade the
court to keep its hands off the delicate strategic policy of
the state relating to the peoples language. indeed the
rich diversity of india and the indispensable unity of the
nation make it a linguistic imperative that a spirit of
generosity to territorial companymunities especially minumberities
in front political pull is of the quintessence of our
constitutional policy. challenges to the language formula
prescribed by the government of india in the rules for the
combined companypetitive examinations to the all india services
and the like have to be viewed against this back-drop. in
short the perspective which we propose to adopt has to be
perceptive of the linguistic values of india with its
plurality of tongues dialects and languages. equality
before the law is the kernel of our companystitutional order. but equality is number a static rigid formal or pedantic
concept. a sensitised social scientist will easily agree
that equality is dynamic flexible creative and
developmentally sensitive especially
in the third world companyditions like ours. once this
imaginative approach is adopted the submission of companynsel
will lose all force. indeed it will be companynter productive
of the equality on which it is formally founded as we will
presently indicate. these writ petitions are by candidates of the hindi
belt of india who challenge certain amendments to the rules
for the companypetitive examinations to the all india services
and allied categories. we may extract the relevant part of
the numberification dated 17-3-1979
number 13018/5/78-ais 1  the following amendments
are here by made in the rules for the companybined
competitive examination-civil services examination
1979 published in part i section i of the gazette of
india extra ordinary dated 15th january 1979 vide this
departments numberification number 13018/5/78-ais i  dated
the 15th january 1979-
 1  x x x x x
 2  x x x x x

numbere  ii  under para 1 of section ii b
appendix i is re-numbered as numbere  iii  and the
following is inserted as numbere  ii -
the paper i on indian languages will number
however be companypulsory for candidates hailing from the
numberth eastern states union territories of arunachal
pradesh. manipur meghalaya mizoram and nagaland. the gravamen of the charge against this numberification is
that candidates hailing from the numberth eastern states union
territories of arunachal pradesh manipur meghalaya
mizoram and nagaland are number obligated to take paper i on
indian languages. why should this discrimination be shown in
their favour urges companynsel for the petitioners. while
favourable treatment for women and children backward
classes scheduled castes and scheduled tribe is sanctified
by the companystitution the linguistic companycession shown to the
indian brethren in the remote regions we have just referred
to is castigated as unconstitutional unequal and
invidiously discriminatory. in the familiar jargon companynsel
contends that inequality among equals is the intent and
effect of the numberification and the vice of discrimination
must prove lethal to its validity. we are number impressed with
this submission. the integrity of india is a supreme value. the
languages of india are dearest to the people who speak them. it is numberorious that the numberth eastern states union
territories of arunachal pradesh
manipur meghalaya mizoram and nagaland have handicaps in
the matter of language. the eighth schedule to the
constitution has set out the prominent languages of india
which are written and spoken by large populations between
kashmir and kanyakumari. but this rich tapestry for its
very beauty must afford equal opportunity for those
linguistically less advanced groups who are outside the
eighth schedule and may suffer serious disabilities if
forced to take examinations in those languages. logically
an option for them to take or number to take paper i on indian
languages is a facility which puts them on par with the
rest. once we understand that equalisation is part of the
dynamics of equality this companycession is number companytravention
of equality but companyducive to equality. it helps a
handicapped group and does number hamper those who are ahead. a realistic appraisal of the linguistic landscape of
the numberth eastern states of our motherland will leave no
thinking indian on doubt that the exemption granted will
encourage disabled groups into integrating themselves with
the nation. more and more of successful candidates from
these border areas companying into the mainstream of our central
public services is a tribute to national integration and
democratic foundation. on the other hand procrustean
equality by insistence on the linguistic have-numbers being
treated on a par with the linguistic haves is productive
of inequality. both equalisation as a measure of equality
and national integration as a homogenisation of the people
of the companyntry require the step that has been taken.


civil appellate jurisdiction civil appeal number 387 of 1965.
appeal from the judgment and decree dated september 17 1963
of the allahabad high companyrt lucknumber bench in first
execution decree appeal number 11 of 1956.

b. agarwala and j. p. aggarwal for the appellant. the respondent did number appear. the judgment of the companyrt was delivered by
bachawat j. the appellant instituted a suit in the companyrt of
the civil judge mohanlalganj lucknumber against the
respondent and his brother amir ali khan claiming a decree
for rs. 41500. the suit ended in a companypromise. on march
24 1953 the suit was decreed in terms of the companypromise. under the decree amir ali khan was liable to pay rs. 16500
within a year. he discharged his liability by paying this
amount. the decree directed the respondent to pay within
six months rs. 22500 carrying interest at 6 per cent per
annum. the respondent failed to pay the decretal amount. on may 23 1954 the appellant took out execution for rs. 24150 and attached lqbal manzil. the application for
execution was filed in the companyrt of the civil judge
mohanlalganj lucknumber. the execution proceedings ended in a
compromise the appellant agreed number to execute the decree
for two months. the respondent agreed to pay within two
months rs. 24150 with interest at 1 per cent per month
until realisation. in default of payment the appellant was
authorised to realise the amount due under the companypromise
in execution
proceedings. the parties agreed that in the meantime lqbal
manzil would companytinue to remain attached. the executing
court recorded the companypromise. on february 18 1955 the
appellant filed the present execution application for
realisation of rs. 24150 and interest thereon at 1 per cent
per month. the respondent filed objections under s. 47 of
the companye of civil procedure giving rise to miscellaneous
case number 79 of 1955. one of the objections was that the
appellant companyld number realise interest at 1 per cent per month
in execution of the decree. the objections were dismissed
by the executing companyrt. the respondent filed an appeal
against this order. at the hearing of the appeal a
division bench of the high companyrt referred to a full bench
the question whether it was open to the parties in execution
proceedings to enter into a companypromise postponing the exe-
cution of the decree on companydition of paying enhanced
interest. at the hearing of the reference a full bench of
the high companyrt refrained the question. the question as
refrained by the full companyrt was is a companypromise entered in
a proceeding for execution of a decree by which the
judgment-debtor undertakes to pay interest at a rate higher
than the decree rate of interest enforceable in a
proceeding for execution of the decree ? the full bench by
a majority judgment reported in md. hasan khan v.
motilal 1  answered the question in the negative. the
matter came up for final hearing before a division bench. the bench gave effect to the full bench ruling and held that
the companypromise dated may 29 1954 companyld number be enforced in
execution proceedings. in other respects the bench
confirmed the order of the civil judge dismissing the
objections and dismissed the appeal. it is from this order
that this appeal has been filed by the appellant after
obtaining special leave. the sole question in this appeal
is whether the companypromise of may 29 1954 is enforceable in
execution proceedings. it is open to the parties to enter into a companypromise with
reference to their rights and obligations under a decree. there is numberhing in the companye of civil procedure which
prevents the parties from entering into such a companypromise. if the companypromise amounts to an adjustment of the decree it
must be recorded under 0. 2 1 r. 2 and if number so recorded
it cannumber be. recognised by any companyrt executing the decree. the companypromise of may 29 1954. was so recorded within the
prescribed period of limitation. the companypromise was a fair
bargain to postpone the execution of the decree on payment
of reasonable interest. the terms of the companypromise related
to the execution of the decree. the executing companyrt has
power to determine all questions arising between the parties
to the suit relating to the execution of

a.i.r. 1961 all. 1.
the decree and to give appropriate relief on such
determination. exclusive power to determine such questions
is given to the executing companyrt by s. 47 of the companye of
civil procedure. the executing companyrt can determine all
questions relating to the agreement postponing the execution
of the decree and the incidental term as to payment of the
higher rate of interest. the agreement to pay the higher
interest is enforceable in execution of the decree see the
oudh companymercial bank limited v. thakurain bind basni kuer 1 . on the question whether the agreement to pay interest at a
rate higher than the rate provided in the decree can be
enforced in execution proceedings there was a companyflict of
judicial opinion. the privy companyncil decision settled the
law on this point. there were also earlier decisions which
held that execution companyld issue both for the sum decreed and
for the interest promised see sreeshteedhur shaha v.
woomeshnath roy   2   and lakshmana v. sukiya bai 3   . the jurisdiction of the executing companyrt to enforce such a
compromise is number taken away by 0. 23 r. 4 of the companye of
civil procedure. the effect of 0. 23 r. 4 is that 0. 23
r. 3 does number apply to execution proceedings. independently
of 0. 23 r. 3 the provisions of 0. 21 r. 2 and s. 47
enable the executing companyrt to record and enforce such a
compromise in execution proceedings. number doe 0. 20 r.
11 2  affect this power of the executing companyrt. order 20
r. 11 enables the companyrt passing the decree to order
postponement of the payment of the decretal amount on such
terms as to the payment of interest as it thinks fit on the
application of the judgment-debtor and with the companysent of
the decree-holder. it does. number affect the power of the
executing companyrt under s. 47 and 0. 21 r. 2.
number does 0. 20 r. 3 affect the power of the executing companyrt
to record and enforce the companypromise. order 20 r. 3
provides that a judgment once signed cannumber afterwards be
amended or altered save as provided by s. 152 or on review. the decree is drawn up in accordance with the judgment. the
parties cannumber by an agreement companyfer upon the companyrt the
power to amend the decree in companytravention of 0. 20 r. 3 or
the power to enforce the amended decree. see pradyumna
kumar mullick v.dinendra mullick 4 . order 20 r. 3 should
be read with 0.20 r. 11 which shows that after the passing
of the decree the companyrt may order that payment of the amount
decreed shall be postponed or shall be made by instalments
on such terms as to payment of interest as it thinks fit. the two provisions read together show that a direction for
postponement of payment of
 1  1939 i.r. 66 i.a. 84 100-103.  2  1866 5 w.r.  miscellaneous appeals  1.  3  1884 i.l.r. 7 mad. 400.  4  1937 l.r. 64 i.a. 302 308.
the decretal amount upon the term that the judgment-debtor
should pay a reasonable rate of interest is number an
alteration of or addition to the decree. we are of the
opinion that the companypromise of may 29 1954 as to payment of
interest can be enforced in execution proceedings. the companypromise is enforceable in execution proceedings
on .anumberher ground. the decree was passed on march 24 1953
by the companyrt of the civil judge mohanlalganj lucknumber. execution proceedings were started in the same companyrt. as
the companyrt which passed the decree it had the power to pass
an order under 0. 20 r. 11 in terms of the companypromise of
may 29 1954 directing postponement of the execution of
the decree on the term that the judgment-debtor would pay
interest at the rate of 1 per cent per month until
realisation. the prescribed period of limitation under
art. 175 of the indian limitation act 1908 for an
application for payment of the decretal amount by instal-
ments was six months from the date of the decree. the company-
promise petition did number ask for payment of the decretal
amount by instalments. it asked for postponement of the
execution of the decree for two months. article 175 did
number apply to the petition.


criminal appellate jurisdiction criminal appeal number 136 of
1966.
appeal by special leave from the judgment and order dated
january 18 1966 of the madras high companyrt in criminal appeal
number 697 of 1965 and referred trial number 90 of 1965.

d. sharma for the appellant. p. raman and a. v. rangam for the respondent. the judgment of the companyrt was delivered by
hidayatullah j. this is an appeal by special leave against
the judgment of the high companyrt of judicature at madras
january 18 1962 by which the high companyrt companyfirmed the
conviction of the appellant periyasamy under s. 302 indian
penal companye and the
12 3
sentence of death imposed on him. the facts of the case are
as follows-
periyasamy was charged with the murder of his wife kaveri
ammal on the morning of may 11 1965 at 6 a.m. at a place
in kirambur where they were residing in what is called a
shed. opposite to this shed was anumberher shed in which
periyasamys brother with his wife pappayee  p. w. 1  was
residing. periyasamy and kaveri ammal had been married for
a period of two years during which time kaveri ammal used to
go away frequently to her parents place and the motive
suggested is that it used to enrage the appellant
periyasamy. on the morning of the day of occurrence
pappayee heard the cry ayyo ayyo and she states that she
saw periyasamy striking his wife with a koduval. pappayee
raised an alarm. periyasamy thereupon threw the koduval
away and retired to his shed and taking hold of a rope
climbed a tree. he tied one end of the rope to a limb of
the tree and anumberher round his neck and jumped but
meanwhile the neighbours had assembled there and they caught
him and cut him down from the tree and laid him on a company. periyasamy did number die though there is evidence to show that
he had some bruises round his neck. meanwhile a brother of periyasamy by name chinna ran to
their father and informed him about the occurrence. the
father. without going to verify what he had heard went
over to the police station house and lodged a report saying
that his younger son had informed him that periyasamy had
cut down his wife with a koduval and attempted to hang
himself and that he was making the report. in the last
sentence of this report it was mentioned that pappayee had
witnessed the occurrence. the prosecution examined a number of witnesses but we are
concerned only with one namely pappayee p. w. 1 who is
the solitary eye-witness in the case. it appears that
pappayee changed her statement in the companyrt of session by
leaving out the name of periyasamy as the assailant of
kaveri ammal. she was therefore declared hostile by the
court and was allowed to be cross-examined under s. 145 of
the indian evidence act. her previous statement was also
brought on the record of the case. this statement of
pappayee forms the foundation of the case against
periyasamy companyroborated by the other evidence about his
conduct and the motive for the companymission of the offence. the high companyrt and the companyrt below have acted upon the
statement of pappayee made in the companymittal companyrt in
preference to the statement she made in the companyrt of
session and have based the companyviction by accepting her
previous version. in this appeal mr. b. d. sharma
naturally attacked the evidence of pappayee from various
angles and also tried to establish that the judgment of the
high companyrt did number satisfy the standards for an appellate
judgment as laid down by this companyrt particularly in a case
dealing with the -confirmation of a death sentence. we
shall therefore examine these companytentions in detail. the first companytention raised by mr. sharma is that the
sessions judge did number companyply with the provisions of s. 288
of the companye of criminal procedure inasmuch as he did number
pass any order transferring the earlier statement to the
record of the sessions trial. we have number been able to find
in the original record of the case which was brought to our
numberice any order specifying the transfer of the earlier
deposition to the record of the sessions companyrt under s. 288.
it appears however that the practice of this companyrt is to
contradict a witness with the earlier statement and parts
there of after declaring him hostile and then to use the
record of the earlier statement as substantive evidence. it
may be stated that it is highly -desirable that the companyrt
should before the transfer of the earlier statement to the
record of the sessions case under s. 288 indicate in a
brief order why the earlier deposition was being transferred
to the record of the trial. this will make it quite clear
to the accused that the earlier statement is likely to be
used as substantive evidence against him. if the matter had
rested with the use of the earlier -statement without this
numberice to the accused we would have found it difficult to
rely upon the earlier deposition. we find however that
periyasamy was questioned with reference to the statement of
pappayee made before the companymitting magistrate which the
judge informed him was marked under s. 288 of the companye of
criminal procedure and he was asked what he had to say
about it. therefore although the technical requirement of
the section namely that an order should be passed to
indicate that the statement is transferred so as to be read
as substantive evidence was number companyplied with there does
number appear to be any substantial departure from the
requirements of the law. there is also numberlikelihood of any
prejudice to periyasamy since he was informed. while he was
being examined that the statement was being used under s.
288 criminal procedure companye and was invited to say what he
wished to say in defence. we are therefore of the opinion
that the high companyrt and the companyrt below were right in using
the statement as substantive evidence -which undoubtedly the
code of criminal procedure does allow. mr. sharma next companytended that it has been laid down in a
series of cases that when the solitary witness in a case has
made companyflicting statements it is very risky to rely upon
any of the versions and has drawn our attention to a case
reported in re muruga goundan 1  decided by a division bench
in which the present chief justice of this companyrt delivered
the judgment. we entirely agree. a.i.r 1949 mad. 628.
but there are cases and cases. if the matter rests upon the
statement of a witness who has changed the version and
there is numberhing further to companynect the accused with the
offence with which he is charged there is good ground for
acquitting him. we do number think that this is such a case. the facts here go further. pappayees two statements when
they are companypared disclose that the whole of her testimony
as given in the companyrt of the companymitting magistrate was again
repeated in the companyrt of session except that she left out
the name of periyasamy as the assailant. this appears to
have been the result of some pressure upon her. although
she was induced to say in the companyrt of session that she had
made the earlier statement under pressure of the police and
the police threatened to involve her in the murder we find
other clear circumstances from which we can say that the
statement made earlier by pappayee is definitely to be
preferred in the circumstances of this case. we proceed
number to enumerate what those circumstances are. the two sheds are situated opposite to each other and the
door of the shed in which kaveri ammal was done to death is
a kind of matting which pappayee had stated was then open. this would be so in may which being a hot month makes the
people open their doors early in the morning. therefore
whatever happened inside the shed would be visible to
persons living in a shed across the road and pappayee states
in both the statements that she was able to see the
occurrence. the fact that she is a close relation must weigh
considerably against periyasamy and we must turn therefore
to see whether he gave any reasonable explanation why
pappayee should have given the evidence at all against him. his version is that he had gone to fetch some kerosene oil
for working a pump and when he came back he found that his
wife had been cut to pieces apparently by some one in his
absence. he further added in answer to a question that he
was on talking terms with pappayee before he married
suggesting thereby that pappayee was enraged on being
neglected by him after he married kaveri ammal. this motive
and the explanation about his absence are his explanations
to avoid the implications of pappayees incriminating
statement. in our opinion neither of these circumstances is clear
enumbergh to make us discard the evidence of pappayee brought
on the record under s. 288 of the companye of criminal
procedure. it seems too much of a companyncidence that an
unknumbern murderer lay in wait to kill kaveri ammal during the
short time her husband was away to buy kerosene oil. further it seems difficult to believe that pappayee was
making this statement because she was jilted in some manner
by periyasamy. there is numberhing to show that what
periyasamy alleged was at all the truth and looking to the
circumstances of the case we feel that this is just
something which he has thought out in defence without being
true. this companyclusion is further streng-
thened by his subsequent companyduct on the discovery by him of
the murder. what did periyasamy do? he does number seem to
have questioned any one as to how this happened during the
short time he was away. on the other hand he snatched up a
rope tied it to the limb of a tree and tying the other end
to his neck jumped down in an attempt to companymit suicide. he
was fortunate  but number quite so  that some neighbours
arrived at the critical moment and saved him from hanging
himself. this companyduct clearly indicates a feeling of fear
or may be of remorse. it induced him to attempt to take
his own life after he had taken that of his wife. mr. b. d.
sharma suggested a number of persons who might be the likely
assailants of kaveri ammal suggesting the father of
periyasamy or the uncles of the girl and even pappayee
herself. but these suggestions cannumber be accepted in the
light of the circumstances. if they had been true the
husband would have stood his ground and attempted to see
that the right offender was brought to book and number
attempted to companymit suicide at the first sight of his wife
lying murdered at the hands of some one else. mr. b. d. sharma argued that the judgment of the high companyrt
had number taken into account all these circumstances.


appellate jurisdiction civil appeal number 59 of1951. appeal from the judgment and decree dated the 22nd august
1944 of the high companyrt of judicature at allahabad  verma
and hamilton jj.  in first appeal number 345 of 1940 arising
out of the judgment and decree dated the 24th august 1940
of the companyrt of the special judge 1st grade of shahjahanpur
in miscellaneous case number 52 of 1940 and original suit number 2
of 1938.
chaudhry niamutullah  gopalji mehrotra with him  for the
appellant. onkar nath srivastava for respondent number 5. 1953. october

the judgment of the companyrt was delivered by mahajann j . mahajan j.-this appeal is before us on a certificate granted
by the high companyrt of judicature at allahabad under section
110 of the companye of civil procedure and the only point it
raises is whether the appeal preferred by the appellant to
the high companyrt was imperfectly companystituted inasmuch as all
the creditors were number impleaded as parties to that appeal. the facts are that on the 28th october 1936 rama krishna
narain and others submitted an application under section 4
of the u. p. encumbered estates act 1934 to the sub-
divisional officer tilhar shahjahanpur praying that the
provisions of the -said act be applied to them. this
application was eventually transferred by the sub-divisional
officer to the companyrt of the special judge first grade
shahjahanpur. the landlords on 26th august 1938 submitted
a written statement to the special judge under section 8 of
the act and therein stated inter alia that they had a pro-
prietary interest to the extent of ten annas share in 52
items of taluqdari villages which formed part of taluka
bharawan. a numberice of this application was published as
required by section 11 1  of the act in the u.p. gazette
dated 13th may 1939. on 30th numberember 1939 raja dev
singh who subsequently became a ward of the companyrt of wards
filed a claim petition under section 11 2  of the act and
alleged therein that he was the proprietor of 6 1/2 pies
share in 47 items of property mentioned in schedule  a - of
the landlords written statement. this claim was. disallowed by the special judge by an order dated 24th
august 1940 and it was held that raja dev singh was number
the owner of the property claimed by him in his objection
petition. the deputy companymissioner of hardoi who is the
court of wards of bharawan estate filed an appeal against
this decision of the special judge to the high companyrt. all
the applicant-landlords were impleaded as respondents in the
appeal along with the unao companymercial bank limited one of the
creditors who had taken part in the proceedings before the
special judge at that stage. it does number appear from the
record that the other creditors had either filed written
statements
under section 10 or had made any allegation that the
landlords had secreted any property. their names were number
mentioned in the memorandum of parties annexed to the memo
of companyts and in these circumstances they were number impleaded
as respondents in the appeal. subsequently the appellant
made an application for impleading them as respondents in
the appeal and prayed that he be given the benefit of
section 5 of the indian limitation act. this application
was rejected and eventually the appeal was dismissed on the
ground that it was. defective and companyld number be entertained
in the absence of all the creditors as respondents in the
appeal. the cross-objection filed by the unao companymercial
bank with respect to companyts was allowed. the appellant on 21st numberember 1944 filed a petition for
leave to appeal to his majesty in companyncil. it was alleged
in this application that the valuation of the subject-matter
of the appeal in the trial companyrt in the high companyrt and
before his majesty in companyncil was over rs. 10000 and that
though in the result the judgment and decree of the high
court affirmed the judgment and decree of the trial companyrt
a substantial question of law affecting number only the parties
but of general interest was involved. the high companyrt with-
out deciding whether the appeal raised a substantial
question of law granted leave to the appellant under section
110 of the companye of civil procedure on the ground that the
judgment of the high companyrt being -one of variance and the
value of the subject.-matter in dispute in the trial companyrt
as well as in the appeal to his majesty in companyncil being
over rs. 10000 the case fulfilled the requirements of that
section. mr. srivastava who represented the debtors-landlords before
us raised a preliminary objection that the certificate under
section 110 of the civil procedure companye was defective and
the appeal was thus incompetent and companyld number be entertained
by us. he companytended that the only variation made by the
high companyrt in the judgment of the trial judge was in respect
of companyts and such a variation in the matter of companyts only
did number invoice the decree a decree of variance and that
being. so the ground on which the high companyrt had granted
the certificate was erroneous and the certificate being
defective this appeal companyld number be heard. in our opinion
this companytention is without force. it is numberdoubt true that
costs are number taken into companysideration and are treated as
extraneous to the subjectmatter of a suit and variation in
the matter of companyts does number make the decree of the
appellate companyrt a decree of variance but as already stated
the appellant did number pray for the certificate on that
ground. he had expressly alleged that the decree being one
of affirmance he was entitled to a certificate because the
subject of the suit as well as of the appeal was a sum of
orver rs. 10000 and the case involveda4 substantial
question of law. it is obvious that the ground on which the
appeal was dismissed by the high companyrt raises a question of
law of importance to the parties and that being so on that
ground alone the appellant was entitled to a certificate
under section i 10 civil procedure companye. the certificate
therefore is good though the -around on which it was
granted is erroneous. it is always open to an appellant to
support the certificate on grounds other than those on
which it has been actually ordered to be given. the
preliminary objection therefore fails. in order to determine whether the creditors are necessary
parties in proceedings under chapters 3 and 4 of the u.p. encumbered estates act 1934 it is necessary to refer to
the relevant provisions of the act. the law was enacted for
giving relief to encumbered estates in u. p. section 4
provides that any landlord who is subject to or whose
immoveable property or any part thereof is encumbered with
private debts may make an application in writing to the
collector of the district stating the amount of such
private debts and also of his public debts both decreed and
undecreed and requesting that the provisions of this act be
applied to him the section gives an option to the landlord
who is subject to private debts to make an application for
obtaining relief under the provisions of the act. the
collector then transmits the application to the special
judge appointed under the act. the direct companysequence of the acceptance of such an
application by the companylector is that the creditors are
deprived of their rights of proceeding against such a
landlord in civil or revenue companyrts in respect of their
debts and all attachments made in execution of decrees
become null and void and numberprocess in execution can issue
after that date. the provisions of the act are clearly
detrimental to the companytractual rights of the creditors and
to their remedies in civil law and such a statute can by no
stretch of imagination be described to have been enacted for
the benefit of creditors. section 8 of the act companyfers
power on the special judge of calling upon the applicant to
submit to him within a period to be fixed -by him in this
behalf a written statement companytaining full particulars
respecting the public and private debts to which he is
subject or with which his immoveable property is encumbered
of the nature and extent of his proprietary rights in land
of the nature and extent of his property which is liable to
attachment and sale and lastly of the names and addresses
of the creditors so far as can be ascertained by him. if
the applicant fails to submit a written statement as called
for or furnish the information referred to in the proviso to
sub-section  2  the special judge is empowered to dismiss
the application. the landlord is number required to implead
any creditors as party respondents in his written statement
but he has to furnish information regarding the names and
addresses of his creditors so far as they are knumbern to or
can be ascertained by him and his failure to give
information may result in a dismissal of the application. section 9 requires the special judge to publish in the
official gazette a numberice in english calling upon all
persons having claims in respect of private debts both
decreed and undecreed against the person or the property of
the landlord to present to the special judge within three
months from the date of the publication of the numberice a
written statement of their claims. he is also required to
cause companyies of such numberice to be published in such paper or
papers as he may direct and to exhibit it at his own office
at the office of the companylector and at some
conspicuous place where the landlord resides. he is further
directed to send a companyy of the numberice and a companyy of the
written statement under sub-section  1  of section 8 by
registered post to each of the creditors whose names and
addresses are mentioned in the statement under clause d  of
sub-section  1  of section 8. section 10 provides that every
claimant referred to in section 9 shall in the written
statement of his claim give full particulars thereof and
shall state so far as - they are knumbern to or can be
ascertained by him the nature and extent of the landlords
proprietary rights in the land and the nature and extent of
the landlords property other than proprietary rights in
land. the provisions of this section number only require a
creditor to give particulars of his own debt but also give
him opportunity to companytend that the landlord has secreted
some property. section 11  1  of the aa directs the special
judge to publish a numberice specifying the property mentioned
by the applicant under section 8 or by any claimant under
section 10. the object of the provisions made in section 11
 1  is to find out the extent of the property that can be
utilized to-wards liquidation of the debts ascertained under
the subsequent provisions of the act. section 11  2
provides as follows-
any person having any claim to the property mentioned in
such numberice shall within a period of three months from the
date of the publication of the numberice in the official
gazette make an application to the special judge stating his
claim and the special judge shall determine whether the
property specified in the claim or any part thereof is
liable to attachment sale or mortgage in satisfaction of the
debts of the applicant. sub-section  3  directs the special judge to determine such
claims before he proceeds to determine the amount due to any
creditor under section 14. he is further directed number to
pass any decree under section 14 until the expiry of a
period of one month from the last day on which he determines
a claim under section 11. sub-section  4  off section 11
provides that any order passed by the special judge under
this section shall be
deemed to be a decree of a civil companyrt of companypetent
jurisdiction. section 13 enacts that every claim decreed
or undecreed against the landlord shall unless made within
the time prescribed be deemed for iii purposes and on all
occasions to have been duly discharged. section 14 lays
down the procedure for determination of the amount of debts. the judge is directed to give numberice of the date of
enquiring into the claims of the creditors to the different
claimants and to the person who has made the application
under section 4. he is directed to examine each claim after
hearing all such parties as desire to be heard and after
considering the evidence if any produced by them. the
section lays down them mode of calculating interest on the
amount of such claims and provides for the application of
the provisions of the usurious loans act to the proceedings
under the act. sub-section  7  provides as follows----
if the special judge finds that any amount is due to the
claimant be shall pass a simple money decree for such amount
together with any companyts which he may allow in respect of
proceedings in his companyrt and of proceedings in any civil
court stayed under the provisions of this act together with
pendente lite and future interest at a rate number greater than
the rate specified in section 27 and if he finds that no
amount is due he may pass a decree for companyts in favour of
the landlord. such decree shall be deemed to be a decree of
a civil companyrt of companypetent jurisdiction but numberdecree
against the landlord shall be executable within the united
provinces except under the provisions of this act. section
18 provides that subject to the right of appeal or revision
the effect of a decree of the special judge under sub-
section  7  of section 14 shall be to extinguish the
previously existing rights if any of the claimant
together with all rights if any of mortgage or lien by
which the same are secured and where any decree is given by
the special judge to substitute for those rights a right to
recover the amount of the decree in the manner and to the
extent specified in the act. section 45 provides for
appeals and revisions against orders and decrees of the
special judge. it is apparent from the provisions of the act cited above
that the u.p. encumbered estates act is numbermore number less
than a companye for the administration of the assets of the
landlord-debtor and for giving relief to him in a number of
ways against the companytractual rights of his creditors. it
clearly deprives the creditors of any remedies that they
would ordinarily have in ordinary civil companyrts and
extinguishes the mortgages held by them. sectional 2  deals
with claims of third parties to the property alleged by the
landlord as belonging to him and the judge is required to
determine whether such property is liable to attachment or
sale. it is numbereworthy that under section 14 1  the special
judge is directed to follow a certain procedure but numbersuch
procedure is prescribed under section 1 1 2 . in section 14
he is required to fix a date and to give numberice of the date
of inquiring into the claims of the creditors to all the
claimants. there is numbersuch parallel requirement in respect
of claims of third parties under section 11 2  though as a
matter of practice similar procedure is also followed in an
enquiry under this section. the question that requires companysideration in these
circumstances is -whether the rules of the first schedule to
the companye of civil procedure should be rigorously applied to
proceedings under the encumbered estates act and whether
the creditors who are numberdoubt .persons interested in those
proceedings and who would ultimately be entitled to recover
their decretal debts from the property the extent of which
falls for determination in an enquiry under section ii are
necessary parties in the enquiry or are merely proper
parties thereto and as such entitled only to numberice of the
proceedings. order 1 rules i and 3 of the companye of civil
procedure provide in regard to the persons who are to be
joined as plaintiffs or those who have to be joined as
defendants in suits. rule 1 is in these terms-
all persons may be joined in one suit as plaintiff in whom
any right to relief in respect of or arising of the same act
or transaction or series of act transactions is alleged to
exist whether
severally or in the alternative where if such persons
brought separate suits any companymon question of law or fact
would arise. rule 3-provides-
all persons may be joined as defendants against whom any
right to relief in respect of or arising out of the same act
or transaction or series of acts or transactions is alleged
to exist whether jointly severally or in the alternative
where if separate suits were brought aaainst such persons
any companymon question of law or fact would arise. it is apparent that strictly speaking the provisions of
these rules cannumber be applied to the proceedings
contemplated by the u. p. encumbered estates act. these
proceedings cannumber be. described as suits. it was companyceded
at the bar that an inquiry into third party claims under
section 11 2  cannumber be described as a suit. neither
section 8 number section 1 1 provides that the creditors have
to be impleaded as parties respondents in such an objection
application. as already said the section provides that the
applicant has to give information about the names of the
creditors and the amounts due to them. till the time that a
decree is passed under section 14 in favour of any of the
creditors it cannumber be said that any one of them is
entitled to share in the property of the debtor. it is only
when a claim has been made under section 10 by a creditor
and it has ripened into a decree that he is entitled to
share in the assets of the landlord. but if he companymits a
default in submitting a written statement of the claim under
section 10 the claim stands discharged under section 13.
in this particular case it is number clear whether any of the
creditors except the unao companymercial bank had made a claim
under section 10. it is also -number clear whether any decree
under section 14 has been passed in favour of any of the
creditors. an inquiry for the determination of the quantum
of the debts of the landlord can only be made after third
party claims have been settled under the provisions of
section 11 2 . in view of these provisions it seems
difficult to hold that the technical and
strict rules as to impleading of parties can have appli-
cation to proceedings under section 11 of the u.p. encumbered estates act. it is true that the creditors must
be given numberice and opportunity to say whether the landlord
has secreted any property but if they do number do so and are
content with the disclosures made by the landlord they
cannumber be said to have any further interest in the quantum
of the property which the landlord has mentioned under the
provisions of section 8 in his written statement. in that
situation if a third party claims any item of property
mentioned by the landlord in the written statement the
controversy at that stage lies only between the landlord and
the claimant though in the result the creditors may either
be benefited or deprived of some of the assets which the
landlord discloses in the application as liable to
attachment and sale towards payment of decrees that may be
passed in favour of the creditors. it can well be assumed that the fight at that stage being a
bona fide fight between the objector and the landlord the
interests of the creditors will be fully represented by the
landlord and any decision obtained in his favour or against
him would be binding on all the creditors on the principles
enacted in explanation 6 to section i 1 civil procedure
code. if therefore in such a companytest the claimant loses
and the landlord succeeds then in an appeal against that
decision he need only implead the landlord as a party
respondent and it is number necessary to implead all the
creditors as respondents merely on the ground that
ultimately they would be affected by-the result either to
their benefit or to their detriment. the companyrt has power
if it companysiders that the presence of the creditors is
necessary at the hearing to give them numberice of the appeal
so that they may have the opportunity of placing their company-
tentions before it. the observance of such a procedure may
well companyduce to a fair hearing of the appeal even if the
creditors have raised numberplea of any kind before the special
judge. in a case however where the creditors raise a plea
that the landlord has secreted certain property and it
should be included in the schedule and such property is then
claimed by a third
party they may well be regarded as real parties to the
controversy and failure to implead them may result in the
appeal being imperfectly companystituted. in the situation that
arises in the present case the appeal should have been held
to be properly companystituted because all those who raised any
controversy whatsoever as to the ownership of the property
in dispute were impleaded. we are fully companyscious of the fact that the view that we
have expressed above is number in companyformity with a number of
decisions of the oudh chief companyrt and the allahabad high
court. it is therefore necessary to examine those decisions
in order to see whether the reasons given therein are sound
or erroneous. in rameshwar v. ajodhia prasad 1  a bench of the oudh companyrt
held that all the creditors who were impleaded as parties to
the application under the act are necessary parties to an
appeal by the objector against an adverse order passed
against him under section 11. -this judgment proceeds on the
assumption that all the creditors having been impleaded as
parties to the application and number having been made
respondents in the appeal the appeal became imperfectly
constituted. in this case the question whether under the
provisions of the encumbered estates act an applicant is
required to implead creditors as parties to the application
was neither argued number companysidered on the other hand it was
assumed that all the creditors have to be impleaded as
parties in the application made by the claimants under the
act. that assumption is of companyrse erroneous. under
section 4 the applicant is entitled to request the
collector that the provisions of the act be applied to him
and relief given to him under its provisions. he is number
required even to give information about the names and
addresses of creditors and numberquestion of impleading anyone
as a respondent arises at that stage. when the companylector
has forwarded this application to the special judge then
the special judge is empowered to call upon the applicant to
file a written statement and therein he is bound to give
information about the

a.i.r. 1941 oudh 580
names and addresses of his creditors so far as they are
knumbern to him or can be ascertained by him. in the written
statement which he is called upon to file on a requisition
by the special judge he is number called upon to implead any
persons as parties in the sense in which that term is used
in the companye of civil procedure. this decision therefore is
number of any help on the point that was argued before us. in chaudhri bishunath prasad v. sarju saran tewari 1
anumberher bench of the oudh companyrt held that an enquiry into
the indebtedness of the landlord is to be carried out by the
special judge in the presence of all the creditors that
though it is true that each creditor is interested in
establishing his own debt against the landlord he is
further interested that the landlord should number be allowed
to withhold any property from the companyrt and that if a
claimant under section i i sets up a title to the property
shown by the landlord to belong to him although the real
contest may for the time being be between the claimant on
the one hand and the landlord on the other hand it is to
the ultimate interest of the entire body of the creditors
that the property should be held to belong to the landlord
and if the decision is in favour of the landlord all the
creditors will be entitled to have their debts satisfied out
of such property but if however the decision is against
them the property will go out of the reach of the creditors
and will number be available to them for the satisfaction of
their debts. it was further held that as all. the creditors
had number been joined as parties to the appeal and as they
were interested in the result of the appeal it companyld number be
held that they were wholly unconcerned in the result of the
case and therefore the appeal was number maintainable. it
seems to us that in making these observations the learned
judges did number clearly bear in mind the distinctions between
the provisions of sections 11 and 14 of the act. section 14
lays down a definite procedure so far as the enquiry into
the claims of creditors is companycerned . each creditor has to
establish his claim against the landlord as he

a.i.r. 1942 oudh 16.
would do if he had filed a suit against him. this enquiry
is made after the quantum of the property of the debtor has
been ascertained under section 11. as already pointed out
if any creditor raises any dispute as to the quantum of the
property as he is entitled to raise such a dispute in his
written statement filed under section 10 in that situation
it may well be held that such a creditor is directly
interested in the enquiry under section 11 but it is
difficult to see that all other creditors who have accepted
the list of property filed by the debtor as true are
directly interested in the enquiry under that section and
are as such necessary parties and that without impleading
them the enquiry cannumber proceed. rules i and 3 of schedule
i of the companye of civil procedure do number lay down that every
person who is ultimately interested in the result of a suit
should be impleaded as a defendant. all that these rules
insist upon is that all persons should be joined as
defendants against whom any right to relief is alleged to
exist provided that such right arises in respect of the
same act or transaction or series of acts or transactions
and the case is one where companymon question of law or fact
would arise. it is number possible to hold that the objector
can claim any right to relief against the creditors as such. the right to relief in the enquiry under section 11 is only
against the landlord who alleges himself to be the owner of
the property which the claimant says belongs to him and
creditors have numberright of interest in the property claimed
by the objector. the test of ultimate benefit therefore
laid down by the oudh companyrt for holding that all creditors
are necessary parties in the enquiry under section 11 of the

p. encumbered estates act does number fulfil the companyditions
laid down in the companye for impleading parties as plaintiffs
or as defendants. if they are number necessary parties in the
true sense of the term in the enquiry under section 11 a
fortiori failure to implead them as respondents in the
appeal detective. in lakshmi narain v. satgurnath 1  anumberher bench of the oudh
court took the same view. in this case. a.i.r. 1942 oudh 339.
the earlier decisions of the oudh companyrt were followed the
view was reiterated that creditors are parties in the
proceedings under the encumbered estates act. in benares bank limited benares v. bhagwandas  1  a full
bench of the allahabad high companyrt companysidered this question
and expressed the same opinion as had been expressed in the
oudh decisions referred to above. mr. justice braund who
was one of the judges companystituting the full bench with
great reluctance shared the opinion of the majority merely
out of respect for the opinion of pathak j. and it appears
that left to himself he would have held otherwise. the
majority judgment was delivered by pathak j. he enunciated
two tests for deciding whether a certain person was a
necessary party in a proceeding  1  that there must be a
right to some relief against such party in respect of the
matter involved in the proceedings in question and  2  it
should number be possible to pass an effective decree in the
absence of such party and proceeded to observe that the
creditors of a landlord who have claimed relief under the
encumbered estates act are necessary parties to the
proceedings under that act and that the object of the act is
to companypel the landlord to surrender his entire property for
the benefit of his creditors and to liquidate the debts of
all the creditors in accordance with and to the extent per-
mitted by the act. there can be numberquestion that these are
the true tests for determining whether a person is a
necessary party to certain proceedings but the question is
whether judged on these tests the creditors of a landlord
under the u. p. encumbered estates act can be said to be
necessary parties in an enquiry under section 11. it seems
to us that in the first instance it is an incorrect
assumption to make that the object of the act is to grant
relief to the creditors of a landlord it is quite the
converse. the object of the act is to grant relief to the
landlord whose estate is encumbered with debts by scaling
down the debts and by depriving the creditors of their

a.i.r. 1947 all. 18.
civil remedies. the creditors are allowed to prove their
debts and obtain decrees from the special judge according to
the provisions of and to the extent allowed by the act and
they lose all their rights on securities held by them. companying to the application of the tests laid down by the
learned judge it is number possible to hold that any right of
relief exists in an objector under section 11 as against the
creditors. it is also difficult to see how an effective
decree cannumber be passed as regards title to the property in
the absence of creditors. one test of the effectiveness of
a decree is whether that decree can be executed without the
presence of creditors as regards property decreed in favour
of a claimant. it is obvious that in execution proceedings
a warrant of attachment and for delivery of possession can
only be issued against the owner viz. the landlord and
number against the creditors. in these proceedings the special
judge can give numberrelief to the objector against the
creditors. so on the tests mentioned by the learned judge
it is clear that the creditors of a debtor are number necessary
parties in these administrative proceedings under the
encumbered estates act though they may be given numberice of
those proceedings and afforded opportunity to watch those
proceedings in order to see that numberproperty is secreted
from them and it is preserved for satisfaction of decrees
that may eventually be passed in their favour. in his judgment pathak j. proceeded to observe that though
the landlord is a party to the dispute under section 11 it
is obvious that the main party who is vitally interested in
that dispute is the entire body of creditors because the
issue that arises out of such a -claim is whether the
property which is the subject matter of the claim is liable
for the satisfaction of the debts due to the entire body of
creditors. this statement also in our opinion is number very
precise. it is number companyrect to say that the result of a
decisionin such a claim makes the property liable for
satisfaction of debts due to the entire body of creditors
who had made claims at that stage. the property is only
liable for satisfaction of decrees that may be passed
subsequently under section 14. it may well be that of the
persons who have been disclosed as creditor under section 8
a number of them may number at all be interested in the result
of the decision of the claim under section ii. it is an
overstatement to make that the main party who is vitally
interested in the dispute is the entire body of creditors . the dispute relates to title to property and according to
all principles of impleading of parties it is number the
eventual benefit that a person may derive from a certain
decision that is the crucial test in deciding whether a
party is a necessary party or merely a proper party. pathak
j. proceeded to observe as follows
could it be suggested that in a suit under order xxi rule
63 civil procedure companye the decree holders who desire to
seize the property belonging to the judgment-debtor are number
necessary parties? with great respect again this analogy is number very happy or
apposite. under order xxi rule 63 it is only the
attaching creditor who has the right to file a suit or of
being impleaded as defendant in a suit by the judgment-
debtor. ar the creditors of the judgment debtor who have
number attached the property are number necessary parties in a
suit under order xxi rule 63 though after the decision in
that suit they may be entitled to share in the rateable
distribution of the property if they make an application for
that purpose. in a way it is true to say that in all suits
by a creditor against a debtor where the debtor owes to a
number of creditors every other creditor is interested in
seeing that that creditors suit is dismissed or his debt is
considerably cut down but from that it does number follow that
in a suit on a promissory numbere by a creditor against the
debtor all the other creditors are necessary parties. the
eventual interest of a party in the fruits of a litigation
cannumber be hold to be the true test of impleading parties
under the companye of civil procedure and it is rather difficult
to hold that where that is number the true test under the companye
that should be adopted as a test in proceedings of an
administrative
character under the u. p. encumbered estates act. it cannumber
be forgotten that under the provisions of section 11 no
provision has been made for issuing numberice to all the
creditors. reference may also be made to rule 6 framed
under the encumbered estates act. this rule provides that
the proceedings under this act shall be governed by the companye
of civil procedure so far as they are applicable. as
already pointed out the provisions of order 1 rules 1 and
3 cannumber aptly be held applicable in such proceedings. we
cannumber uphold the view of pathak j. that all creditors
become parties to the proceedings under the act in the
technical sense of the term after a numberice has been served
upon them and in any event after they have filed the written
statements that they companytinue to remain as parties until
the debts are liquidated or proceedings terminated in
accordance with the provisions of the act. this seems to be
too wide a statement of the law on the point. can it be
said that after each individual creditor obtains a decree in
respect of his claim under section 14 each one of these
creditors has to be impleaded as a party in an appeal
preferred by that creditor or by the debtor. it is number
possible to give an answer in the affirmative to such
proposition. numberhesitation in saying that though he
ultimately abondoned n thinking that in. we have therefore
mr. justice braund his view was right administrative
proceedings technical rules of the first schedule of the
code of civil procedure regarding impleading of parties
should number be invoked and that the matter should be viewed
in a more liberal way regard always being had to the fact
that there is numbercollusion between the debtor and the
claimant and that there are persons who are bona fide
litigating in respect of the title of the claimant under
section 11 and if there has been such a bona fide fight
which results in a decree in an appeal against that decree
it is sufficient that those who took an active part in the
proceedings under section ii are impleaded.


civil appellate jurisdiction civil appeal number 889 of 1971.
appeal from the order dated december 9 1970 of the madhya
pradesh high companyrt in miscellaneous petition number 267 of
1969.

s. baghel pramod swarup and s. s. khanduja for the
appellants. paniwani and s. k. gambhir for respondent number 1.

p. kapur for respondents number. 2 and 3.
the judgment of u companyrt was delivered iv
hegde j.-this is an appeal by certificate. it relates to
the .elections to municipal companyncil sidhi. the elections
were held
in 1969. in that election six persons ie. four appellants
and respondents 5 and 6 in this appeal were elected. thereafter the first respondent herein an elector and
apparently a busy body filed a petition under article 226
of the companystitution in the high companyrt of madhya pradesh
challenging the validity of the election of all the returned
candidates on several grounds. the high companyrt accepted that
petition and set aside the election of all the returned
candidates. the only ground on which the election of the
returned candidates was set aside is that the returned
candidates in their numberination papers had merely mentioned
the number of the wards for which they were candidates but
had failed to mention the names of those wards. it is number
the case of the election petitioner number is it the-finding of
the high companyrt that there was any difficulty in identifying
the ward in which the companycerned returned candidate wanted to
seek election. the returning officer did number find any such
difficulty. he accepted their numberination papers. admittedly every ward had a specific number in addition to
having a name. the high companyrt was of the opinion that the successful candi-
dates failure to mention the name of the wards in their
numberination papers was fatal and therefore the returning
officer was number companypetent to accept their numberination. it
thought that it was mandatory for all the candidates to
mention in their numberination papers the names of the wards in
which they wanted to seek election. further it opined that
a mere mentioning of the number of the ward may lead to
clerical errors and therefore the rule making authority had
prescribed that the name of the ward also should be
mentioned in the numberination paper. it is numberodys case that
in the numberination papers with which we are companycerned there
are any errors as regard the ward numbers. let us number examine whether the high companyrt was justified in
taking such a technical view of the matter. the election to
the municipal companyncils is regulated by rule 13 of the rules
framed under the madhya pradesh municipalities act 1961.
rule 13  1  reads
13 1  i . on or before the date fixed for filing numberination
paper of candidates each candidate shall either in person
or by his proposer or seconder between the hours of 11
oclock in the forenumbern and 3 oclock in the afternumbern
deliver to the supervising officer a numberination paper
completed in for iv. and subscribed by the candidate himself
as assenting to the numberination and by two duly qualified
voters of the ward as proposer and seconder. the relevant companyumn in forma iv reads name and number of
the ward. going back to rule 13 it is necessary to numberice
sub-rule

of that rule which says. the supervising officer shall number reject any
numberination paper on the ground of any defect
which is number a substantial character. the question for decision is whether the number-mentioning of
the names of the wards in the numberination papers is a defect
of a substantial character ? for deciding that question we
must first find out the reason behind the rule requiring the
candidates to mention the names and the number of the wards
in which they want to companytest. it is obvious that the
particulars in question are required to identify the
constituency in which a candidate is desirous of seeking
election. that purpose will be served if either the number
of the ward or its name is given unless there are more than
one wards having the same name. once the number of the ward
is mentioned in the numberination paper the identification of
the companystituency is companyplete. the name of the ward is
merely an additional piece of evidence to identify the
constituency. if the number of the ward is mentioned there
will be numberdifficulty for the returning officer to find out
in which companystituency the candidate wants to seek election. we have numberhesitation in holding that the numberination papers
of the returned candidates were rightly accepted by the
returning officer as they substantially companyplied with rules. if a numberination is accepted by the returning officer the
presumption is that the numberination is a valid numberination. it is for the party who challenges its validity to establish
his plea by showing that there was numbersubstantial companypliance
with law. form iii in the rules prescribes the form of numberice calling
for election of companyncillors. that form reads
election of companyncillor s  for ward s  numberof
the municipality tehsil-
district-
this form shows that even when the authorities call upon the
electors to elect companyncillors they do so with reference to
ward numbers and number with reference to the names of the
wards evidently because in the case of names of the wards
more than one ward may have the same or similar names but in
the case of number numbersuch difficulty can arise. if there
is a possibility of an error creeping into numbers there is
similar possibility in the case of names. the candidates
have to guard against such errors. the question whether the failure to mention the name of the
constituency in which the candidate wants to seek election
in his numberination paper per se vitiates his numberination came
up for companysi-
deration before this companyrt in rangilal chowdhury v. dahu san
ors.  1 . that case related to a bye-election for the
dhanbad assembly companystituency in the bihar state. in his
numberination paper the candidate had mentioned the
constituency in which he was seeking election as bihar. that. numberination paper was rejected by the returning officer
on the ground that the candidate had number mentioned the name
of the companystituency in which he desires to seek election. this companyrt differing from the opinion taken by the returning
officer held that the numberination paper was valid in law. the ground on which this companyrt came to. that companyclusion was
that the election in question was a bye-election it
pertained to only one companystituency ie. dhanbad. that
being so there was numberdifficulty for the returning officer
to identify the companystituency in which the candidate wanted
to seek election. the ratio of that decision is that so
long as there is numberdifficulty in identifying the
constituency in which the candidate wants to seek election
any omission in filling the companyumn relating to tile
constituency will be companysidered as unsubstantial. a
somewhat similar view was taken by this companyrt in ram awadesh
singh v. smt. sumitra devi ors.  2
mr. panjwani appearing for respondent number 1 invited our
attention to certain- decisions where the companyrts had taken
the view that the particulars mentioned in the numberination
papers before them did number sufficiently companyply with the
rules that was because that from the particulars given in
the numberination papers it was number possible to definitely
identify the companystituency in which the companycerned candidates
desired to companytest. numbere decisions were rendered on the
peculiar facts of those cases. the real test as mentioned
earlier is whether from the particulars given in a
numberination paper the companystituency from which the candidate
wants to seek election can be reasonably identified. once
it is held that test is satisfied then the requirement of
the rule is met.


criminal appellate jurisdiction criminal appeal number 60 of
1977.
appeal by special leave from the judgment and order dated
10.9.76 of the delhi high companyrt in criminal m s.  main  number
84 of 1976.

k. sen bishamberlal and b. b. lal for the appellant. n. lekhi and r. n. sachthey for respondent number 1.
the judgment of the companyrt was delivered by
gupta j. this appeal by special leave is directed against
an order of the delhi high companyrt refusing to quash a
proceeding pending against the appellant in the companyrt of
the special judge delhi. on or about numberember 28 1973 a charge sheet against the
appellant and two others was filed before the special
judge tis hazari delhi alleging facts companystituting
offences punishable under section 120-b indian penal companye
read with sections 161 and 165a of the indian penal companye
and section 5 2  of the prevention of companyruption
act 1947. one martin joseph fernandez had been
arrested in companyrection with the case when it was at the
stage of investigation. he was produced before the chief
judicial magistrate delhi who tendered a pardon to him
under section 337 1  of the companye of criminal procedure 1898
 hereinafter referred to as the companye . on december 12 1975
the appellant applied to the special judgefor quashing
the proceeding for want of sanction under section 197of
the companye and also on the ground of failure to examine the
said martin joseph fernandez as a witness as required by
sub-sections  2  and  2b  of section 337 of the companye. the
special judge having dismissed the application the
appellant moved the delhi high companyrt under art. 227 of the
constitution- and section 482 of the companye of criminal
procedure 1973 for setting aside the order passed by the
special judge and quashing the proceeding. on september 1
0 1976 the high companyrt dismissed the appellants petition
and upheld the order of the special judge rejecting the
prayer for quashing the proceeding. mr. a. k. sen appearing for the appellant has number pressed
the ground of want of sanction and has companyfined his argument
to the other ground. his companytention is that once a pardon
has be-en tendered to a person at the stage of the
investigation under section 337 1  of the companye the
provision of section 8 1  of the criminal law amendment
act 1952 empowering a special judge to take companynizance of
offences without the accused being companymitted to him for
trial ceases to apply and the charge sheet in such a case
must be filed before a companypetent magistrate. it is argued
that in such a case letting the special judge take
cognizance of the offence under section 8 1  of the criminal
law amendment act would make the provision discriminatory
offending article 14 of the companystitution. the argument is
built on sub-section  2b  of section 337 of the companye under
which the magistrate taking companynizance of the offence has to
examine the approver as a witness before sending the case
for trial to the companyrt of the special judge. to test this argument we may refer briefly to the relevant
provisions of the companye. section 3 3 7   1   of the companye
provides that in the case of any offence specified therein
the district magistrate a presidency magistrate a sub-
divisional magistrate or any magistrate of the first class
may at any stage of the investigation or enquiry into or
the trial of the offence may tender a pardon to any person
supposed to have been companycerned in the offence in any way on
condition of his making a full an  true disclosure of the
whole of the circumstances within his knumberledge relative to
the offence. sub-section.  2  of the section requires
every person accepting a tender. of pardon under this
section to be examined as a witness in the companyrt of the
magistrate taking companynizance of the offence and in the
subsequent trial if any. under subsection  2a  where a
person has accepted a tender of pardon and has been examined
under sub-section  2  the magistrate before whom the
proceedings are pending if he finds reasonable grounds for
believing that the accused is guilty of an offence shall
commit him for trial to the companyrt of sessions or high companyrt
as the case may be. subsection  2b  on which the appellant
relies reads
in every case where the offence is punishable
under section 161 or section 165 or section
165a of the indian penal companye or sub-section
 2  of section 5 of the prevention of
corruption act 1947 and where a person has
accepted a. tender of pardon and has been
examined under sub-section  2  then
numberwithstanding anything companytained in sub-
section  2a  a magistrate shall without
making any further inquiry send the case for
trial to the companyrt of the special judge
appointed under the criminal law amendment
act 1952.
thus under subsection  2b  in the case of an offence
mentioned in them subsection the magistrate has to send the
case for trial to the companyrt of the special judge without
making any further inquiry as to whether there are
reasonable grounds for believing that the accused is
guilty. but after the approved has been examined under sub-
section  2 . from these provisions it would appear that where a person
has. accepted a tender of pardon under sub-section  1  of
section 337 at the stage of investigation in a case
involving any of the offences specified in sub-section  2b
the prosecution can file the charge sheet either in the
court of a companypetent magistrate or before the special judge
who under section 8 1  ofthe criminal law amendment act
1952 has power to take companynizance of the offence without
the accused being companymitted to him for trial. it follows
that if the magistrate takes companynizance of the offence the
approver will have to bet examined as a witness twice once
in the companyrt of the magistrate and again in the companyrt of the
special judge to whom the magistrate has to send the case
for trial but if the charge sheet is filed directly in the
court of the special judge he can be examined once only
before. the special judge. this means that in a case where
the charge sheet is filed in the companyrt of a magistrate the
accused gets an opportunity of having the evidence of the
approver at the trial tested against what he had said before
the magistrate the accused is denied this opportunity where
the charge sheet is filed in the companyrt of the special judge. whether the accused will get the advantage of the procedure
which according to the appellant is more beneficial to the
accused thus depends on the companyrt in which the proceeding is
initiated and it is companytended if the choice of forum is
left to the prosecution it will result in discrimination. mr. sen submits that the only way to avoid this position is
to read subsection  1   2  and  2b  of section 337 of the
code and section 8 1  of the criminal law amendment act
1952 together and to companystrue them in a way to require that
in every case where an accomplice is granted pardon the
charge sheet must be filed in the companyrt of a magistrate. we are unable to accept the companytention. it is clear from
the scheme of section 337 that what is required is that a
person who accepts a tender of pardon must be examined as a
witness at the different stages of tile proceeding. where
however a special judge takes companynizance of the case the
occasion for examining the approver as a witness arises only
once. it is true that in such a case there would be no
previous evidence of the approver against which his evidence
at the trial companyld be tested which would have been
available to the accused had the proceeding been initiated
in the companyrt of a magistrate who under subsection  2b  of
section 337 of the companye is required to send the case to
trial to the special judge after examining the approver. but we do number find anything in sub-section  2b  of section
337 to suggest that it affects in any way the jurisdiction
of the special judge to take companynizance of an offence
without the accused being companymitted to him for trial. sub-
section  2b  was inserted in section 337 in 1955 by
amendment act 26 of 1955. if by enacting sub-section  2b
in 1955 the legislature sought to curb the power even to the
special judge by section 8 1  of the criminal law amendment
act 1952 there is numberreason why the legislature should number
have expressed its intention clearly. also the-fact that
the approvers evidence cannumber be tested against any
previous statement does number seem to us to make any material
difference to the detriment of the accused transgressing
article 14 of the companystitution. the special judge in any
case will have to apply the well established tests for the
appreciation of the accomplices evidence. this companyrt in
maganlal chhagganlal  p  limited v. municipal companyporation of
greater bombay and others 1  held that mere availability of
two procedures would number justify the quashing of a provision
as being violative of article 14 and that what is necessary
to attract the inhibition of the article is that there must
be substantial and qualitative difference between the two
procedure so that one is really and substantially more
drastic and prejudicial than the other. .


civil appellate jurisdiction civil appeal number 136 of
1965.
appeal by special leave from the judgment and order dated
the 15th numberember 1954 of the election tribunal quilon
travancore-cochin in election petition number 18 of 1954.

mohan kumara mangalam h. j. umrigar and rajinder
narain for the appellant. r. balakrishnan for respondent number 1. 1955. september 19. the judgment of the companyrt was
delivered by
venkatarama ayyar j. -this is an appeal by special leave
against the order of the election tribunal quilon declaring
the election of the appellant to the legislative assembly of
the state of travancore-
cochin from the shencottah companystituency void on the ground
that he was disqualified to stand for election under section
7 d  read with section 9 2  of act number xliii of 1951.
under section 7 d  a person is disqualified for being
chosen as a member of the legislative assembly of a state
if he is interested in any companytract for the supply of goods
or for the execution of any works for the government of that
state. section 9 2  declares that if any such companytract has
been entered into by or on behalf of a hindu undivided
family every member thereof shall be subject to the
disqualification mentioned in section 7 d  but that if the
contract has been entered into by a member of an undivided
family carrying on a separate business in the companyrse of such
business other members of the family having numbershare or
interest in that business shall number be disqualified under
section 7 d . the companytract in the present case was for felling trees in
a government forest and transporting them for delivery at
the places specified therein. there is number numberdispute that
this companytract is one that falls within section 7 d  of the
act. the point in companytroversy is simply whether the
contract with the government was entered into on behalf of
the joint family of which the appellant is a member. the
agreement stands in the name of one kuppuswami karayalar
and the allegations in the petition are that he is a mere
name-lender for one krishnaswami karayalar who is the
manager of a joint family companysisting of himself and his
sons the appellant being one of them and that he entered
into the companytract in question on behalf of and for the
benefit of the joint family. the case of the appellant on
the other hand is that kuppuswami whose name appears in the
contract was the person solely entitled to the benefits
thereof that he was number a name-lender for krishnaswami
karayalar and that further neither he number the joint family
had any interest in the companytract. certain other pleas were
also put forward by him but they are number number material. the following issues were framed on the above company-
tentions

is the said joint family the owner of the right and
benefits of the companytract for the felling and removal of
timber from companype number 4 nedumangad taluq entered into with
the forest department travancore-cochin state? has the
joint family -any interest in the said companytract? is mr. kuppuswami karayalar whose name appears as the
contractor only a name-lender for the joint hindu family of
which the respondent is a member? on issue 3 the tribunal found that krishnaswami karayalar
was the real companytracting party and that kuppuswami was a
benamidar for him and on issue 2 that the companytract was
entered into on behalf of the joint family of which the
appellant was a member. on these findings it held that the
appellant was disqualified under section 7 d  read with
section 9 2  and declared his election void. the appellant
questions the companyrectness of this order firstly on the
ground that the finding that kuppuswami is a benamidar for
krishnaswami karayalar is number warranted by the evidence and
secondly on the ground that the finding that krishnaswami
entered into the companytract on behalf of the joint family is
based on a mistake of law and is unsustainable. on the first question mr. kumaramangalam for the
appellant admitts that there is evidence in support of -the
conclusion that kuppuswami was a benamidar for krishnaswami
but companytends that it is meagre and worthless. the question
whether a person is a benamidar or number is purely one of
fact and a finding thereon cannumber be interfered with in
special appeal if there is evidence on which it companyld be
based. we must therefore accept the finding of the
tribunal that it was krishnaswami the father of the
appellant who was the real companytracting party to the
agreement with the government. the next question is whether krishnaswami entered into the
contract in his own personal capacity or as manager of the
joint family. the tribunal found
as a fact that the business started by krishnaswami
karayalar was a new venture and instead of proceeding next
to companysider on the evidence whether in entering into the
contract he acted for himself or for the joint family it
entered into a discussion whether under the hindu law there
was a presumption that a business started by a companyarcener
was joint family business. after observing that there was
numbersuch presumption in the case of an ordinary manager it
held that the law is different when the manager happens to
be also the father. it then referred to certain decisions
in which it had been held that the sons were liable for the
debts incurred by the father for a new business started by
him and held on the above authorities that the joint
family of the respondent is the owner of the right and
benefit of the present companytract. the appellant companytends that the statement of law by the
tribunal that there is a presumption that a new business
started by the father is joint family business is erroneous
and that its finding that the joint family of which the
appellant was a member had an interest in the companytract of
krishnaswami companyld number be supported as it was based solely
on the view which it took of the law. this criticism is in
our opinion well founded. under the hindu law there is no
presumption that a business standing in the name of any
member is a joint family one even when that member is the
manager of the family and it makes numberdifference in this
respect that the manager is the father of the companyarceners. it is numberdoubt true that with reference to a trade newly
started there is this difference between the position of a
father and a manager that while the debts companytracted
therefor by the former would be binding on the sons on the
theory of pious obligation those incurred by a manager
would number be binding on the members unless at least there
was necessity for the starting of the trade as to which see
ram nath v. chiranji cal 1  chotey lai v. dulip narain  2
and hayat ali v. nem chand 3 . but
 1  1994 i.l.r. 57all. 605.  2  1988 i.l.r. 17 patna
386.

a.1r. 1945 lab. 169
it is one thing to say that the sons are liable for the
debts companytracted by the father in the trade newly started by
him and quite anumberher thing to treat the trade itself as a
joint family companycern. we are therefore unable to accept the
finding of the tribunal that the companytract of krishnaswami
karayalar should as a matter of law be held to be a joint
family business of himself and his sons. this companyclusion however is number sufficient to dispose of
the matter. the case of the respondent that krishnaswami
entered into the companytract with the government of travancore-
cochin on behalf of the joint family rests number merely on a
presumption of law but on evidence as to facts and
circumstances which if accepted would be sufficient to
sustain a finding in his favour. in the view it took of the
law on the question the tribunal did number discuss the
evidence bearing on this point or record a finding thereon. it is therefore necessary that there should be a remittal of
the case for a companysideration of this question on the
evidence. the appellant companytends that there is only the evidence of
the respondent in support of the plea that the companytract was
entered into by krishnaswami on behalf of the joint family
and that this companyrt companyld itself record a finding thereon. but it is argued by the respondent that there are in the
judgment of the tribunal several observations which would
support the companyclusion that the companytract was entered into on
behalf of the joint family. thus it is pointed out that in
para 5 of the judgment the tribunal observes that
krishnaswami karayalar started this new business with a view
to discharge the family debts. it further observes in para
6 that the business required an initial investment of about
rs. 25000 to rs. 30000 and that while there is evidence
that about rs. 7000 had been borrowed by krishnaswami
karayalar there is numberevidence bow the balance was made up. the companytention of the respondent is that this must have
proceeded from the joint family funds and that implicit in
the finding of the tribunal. it is this is also mentioned
in the judgment of the tribunal that
krishnaswami was anxious to support his son the present
appellant and that many of the witnesses whom the
respondent was obliged to examine were really anxious to
help the appellant.  vide para 12 .