Judgement

SINHA J.: In this appeal we did not think it necessary to hear the counsel for the respondents on the merits of the decision appealed from in the view we have taken, as will presently appear, of the terms of the surety bond which was being sought to be enforced against the sureties, the respondents in this Court. The surety bond in question was taken in circumstances which clearly appear from the following resolution of the Government of Bihar dated the 17th October 1946:

"Whereas one Maulavi A. Ali Khan, who was convicted under S. 120-B read with S. 420, I. P. C. by the First Special Tribunal, Calcutta and sentenced to four years; rigorous imprisonment and a fine of rupees one lac which conviction and sentence have been subsequently uphold by the Patna High Court, has submitted to the Provincial Government a petition praying for suspension of his sentence in order to enable him to prefer an appeal against the said conviction and sentence to the Judicial Committee of the Privy Council.

And Whereas the Provincial Government have granted the prayer of the petitioner subject to the conditions hereinafter specified which the petitioner has accepted:

Now, therefore, the Governor of Bihar hereby orders that the execution of the aforesaid sentence of Maulavi A. Ali Khan be suspended pending the hearing of the proposed appeal to the Judicial Committee of the Privy Council on his furnishing security worth Rs. 50,000 with two sureties of Rs. 25,000 each to the satisfaction of either the Sub-Divisional Officer. Jamshedpur or the Deputy Commissioner of Singhbhum and undertaking (1) to furnish proof by the 1st December,1946 of his having taken all necessary steps for the filing of the appeal and also (2) to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly. The petitioner, if in custody, may be released if he complies with the above conditions.

By order of the Governor of Bihar,

(Sd.) T. G. N. Ayyar,

Secretary to Government."

In pursuance of that resolution the surety bond in question was taken from the respondents. The material portion of the bond (Ex. 2) is in these terms:

"We, S. T. Karim, son of Abdul Wahab, by caste Mohammedan, by occupation Contractor and Proprietor Jamshedpur and Star Talkies, Jamshedpur, residing at Sakchi, police station Sakchi in Town Jamshedpur, district Singhbhum, (2) Manik Homi, son of late Homi Engineer, by caste Parsee, by occupation zamindar of Mango, residing at Mango, police station Sakchi, district Singhbhum,

Stand surety for the amount of Rs. 25,000 only each and bind ourselves to the Government of Bihar of which we bind ourselves, our heirs, executors and successors firmly for payment of Rs. 50,000 only in case Mr. Ali Khan fails to furnish proof by the 1st December 1946 of his having taken all necessary steps or the filing of the appeal and to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly-"

It is dated the 19th October, 1946. As a result of the constitutional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court by virtue of the Abolition of the Privy Council Jurisdiction Act (Constituent Assembly Act V of 1949) which came into force on the 10th October, 1949. As from that date ("the appointed day") all appeals pending before the Judicial Committee of the Privy Council by virtue of Section 6 stood transferred to the Federal Court. Ali Khan s appeal to the Privy Council thus got transferred to the Federal Court and in due course was heard by this Court. This Court dismissed the appeal in November 1950. In the meantime Ali Khan, the convicted person, who had gone to London to look after his appeal there, migrated to