Judgement

HIDAYATULAH, J. : This is an appeal by special leave against an order dated February 1, 1965 of the High Court of Bombay (Nagpur Bench) in Miscellaneous Petition No. 13 of 1965 refusing a certificate under Article 133 (1) (a) or (c) of the Constitution. This certificate was asked by the appellants in respect of the order of the High Court dated September 21, 1964 in Special Civil Application No. 471 of 1964. Both these orders summarily dismissed the respective petitions. Against the main order Special Leave Petition (Civil) No. 395 of 1965 has been filed but by an order of this Court dated July 30, 1965, it has been kept pending sine die with liberty to bring it up for hearing after the disposal of the present appeal. This is because the appellants claim in this appeal that appeal lay as of right to this Court and the certificate was wrongly refused by the High Court. Before we discuss the question mooted before us we shall state the facts sufficient for the purpose.

2. On the passing of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 1950, the appellants applied under S. 19(1) of the Act for the determination of their debts, specifying the amounts and particulars of all secured debts and claims together with the names of the creditors. One such creditor, named by them, is Gendalal Motilal Patni who is the first respondent. His debt was a mortgage debt originally but had resulted in a decree for Rs. 2,16,309. Patni objected that this had ceased to be a secured debt or secured claim for the application of S. 17 (a) of the Abolition Act. The objection was taken under S. 21.

3. The Claims Officer overruled the objection of Patni by an order dated November 19, 1951. He held that although the debt had merged in a decree it remained a secured debt nevertheless and that as the amount was recoverable on the date of vesting, the provisions of the Act were applicable to it. By another order of the same date the Claims Officer called upon Patni to file his statement of claim under S. 22 of the Act. Patni did not file the statement but instead preferred an appeal against the main order before the former Madhya Pradesh Board of Revenue. The Board of Revenue held on June 15, 1954 that the Claims Officer had no jurisdiction to determine the character of the debt and only the Civil Court could decide this issue. In reaching this conclusion the Board followed a decision of the Nagpur High Court reported in Ramkrishna v. Board of Revenue of M. P., Nagpur, AIR 1954 Nag 248.

4. Patni next moved the Civil Court and the Civil Court decided that the debt in question was a secured debt for the application of the Abolition Act. Patni appealed to the High Court but out of caution filed his statement of claim before Claims Officer on January 23, 1958. The ex-proprietors (the appellants here) objected to the statement on the ground that it was out of time and asked that the claim be held discharged. The Claims Officer accepted the objection and discharged the claim by an order dated December 24, 1962. Patni appealed to the Commissioner, Nagpur Division, Nagpur (Rev. Appeal No. 2/57/62/63) and by an order of May 5, 1964 the order of the Claims Officer was set aside. The Commissioner pointed out that the decision of the Nagpur High Court earlier referred to was overruled in the subsequent case of the High Court reported in (S) AIR 1956 Nag 193 (FB) and the Claims Officer had jurisdiction to pronounce on the character of the debt. The order of the Claims Officer of November 19, 1951 was thus held to have revived but the claim could not be discharged as action under S. 22 (1) had not been taken. The case was remanded to the claims Officer for disposal according to law.

5. The appellants thereupon filed a petition under Arts. 226 and 227 of the Constitution in the High Court of Bombay (Nagpur Bench) on the ground that the Commissioner had no jurisdiction to entertain and decide the appeal and that the Claims