Judgment

SHAH, J.:- The facts which give rise to this appeal are few and simple. The appellant commenced on May 3, 1951 an action in the Court of the Assistant Judge, Morvi, in the former Part B State of Saurashtra for a decree for Rs. 9,387/5/- against one L. Angha Nathu Jamal and respondents 2 and 3 in this appeal. The Trial Court decreed the suit on October 17, 1955. An appeal was filed against the decree in the High Court of Saurashtra at Rajkot. On November 1, 1956, the High Court of Saurashtra was abolished and the proceedings pending in that Court stood transferred to the High Court of Bombay. On February 21, 1958, Vyas, J., of the High Court of Bombay allowed the appeal. Against that order an appeal under clause 15 of the Letters Patent of the High Court of Bombay was filed by the plaintiff but without an order of Vyas, J., certifying that the case was fit for appeal to a Division Bench of the High Court. On May 1, 1960 under the Bombay Reorganisation Act, 1960 the appeal stood transferred to the High Court of Gujarat. The High Court of Gujarat held that the appeal was incompetent in the absence of an order under Section 22A of the Saurashtra Ordinance 2 of 1948 certifying that the case was fit for appeal to a Division Bench. With certificate granted by the High Court of Gujarat this appeal has been preferred.

2. The Rulers of Indian States in Kathiawar agreed "to unite and integrate" their territories in one State to be styled the United State of Saurashtra with a common executive, legislature and judiciary. By Ordinance 1 of 1948 the administration of the covenanting States was taken over by the Rajpramukh. The Rajpramukh issued, in exercise of power reserved to him by Article 9, clause (3) of the Covenant, Ordinance 2 of 1948 setting up with effect from February 29, 1948, a High Court of Judicature for the State of Saurashtra. The expression "High Court" was defined in Section 3 (c) as meaning "the High Court established and constituted by this Ordinance and functioning as the High Court of the Saurashtra State." By Section 21 the High Court was to be the highest Court of appeal and revision in the State and to have jurisdiction to maintain and dispose of such appeals, revision and other cases, civil or criminal, as it may be empowered to do under the Ordinance or any enactment in force in the State. By Section 22 the High Court was also to be a Court of reference with power to hear, revise and determine all cases referred to it. By Ordinance 5 of 1950, Section 22A was added: it was provided thereby:

"(1) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree, or from any order against which an appeal is permitted by any law for the time being in force or from any order under Art. 226 of the Constitution of India, made by a single Judge of the High Court, shall lie to a Bench consisting of two other Judges of the High Court.

(2) An appeal shall lie from a judgment of one Judge of the High Court in respect of a decree or order made in exercise of Appellate Jurisdiction to a Bench consisting of two other Judges of the High Court if the Judge who made the decree or order certifies that the case is a fit case for appeal."

3. Under the Constitution of India, the territory of the United State of Saurashtra was formed into a Part B State of Saurashtra. By the States Reorganisation Act 1956 the territory of the State of Saurashtra merged into the State of Bombay.

4. By Section 49 of the States Reorganisation Act, 1956, it was enacted that the High Court exercising immediately before the appointed day, jurisdiction in relation to the existing State of Bombay shall, as from the appointed day, be deemed to be the High Court for the new State of Bombay. By Section 50 (1) as from the appointed day, the High Courts of all the existing Part B States (with certain exceptions not material) were to cease to function and were abolished. By Section 52 it was provided :

"The High Court