The Province of West Bengal was liable for the actionable wrong alleged in the appeal, and therefore, the decree passed in the appeal should be amended to substitute "State of West Bengal" for "Province of Bengal."

( 1 ) I shall deal with the two applications separately.

( 2 ) THE first one is an application for amendment of the decree passed in the above appeal. The amendment prayed for is for substitution of "state of West Bengal" for "province of Bengal. "

( 3 ) THE appellant petitioner was the plaintiff in a suit for declaration that the assessment of revenue upon the disputed land was ultra vires and for an injunction restraining the respondent 1, opposite party no. 1, from realising the assessed revenue and for other incidental reliefs.

( 4 ) THE suit failed in the trial Court.

( 5 ) THE appellant petitioner filed the above appeal in this Court in 1943.

( 6 ) THE appeal was pending in this Court on 15-8-1947.

( 7 ) THE Indian Independence Act, 1947 (10 and 11 Geo. VI , C. 30) received the assent of His Majesty on 18-7-1947.

( 8 ) SECTION 3 of the Act provided that as from the appointed day (15-8-1947) the Province of Bengal as constituted under the Government of India Act, 1935 shall cease to exist and that there shall be constituted in lieu thereof two new Provinces to be known respectively as East Bengal and West Bengal.

( 9 ) THE question in this application concerns the effect of the above provision so far as the present appeal was concerned.

( 10 ) THE material provision bearing on this point is contained in Article. 12 (2) of the Indian Independence (Eights, Property and Liabilities) Order, 1947, which reads as follows:"where any Province from which property, rights or liabilities are transferred by this Order is, immediately before the transfer, a party to legal proceedings with respect to that property, or those rights or liabilities, the Province which succeeds to the property, rights or liabilities in accordance with the provisions of this order shall be deemed to be substituted for the other Province as a party to those proceedings, and the proceedings may continue accordingly. "

( 11 ) IF this provision applies, then the relevant Province will be deemed, to be on record, although the proceedings may be proceeding in the name of the Province of Bengal which was non est by virtue of Section 3, Independence Act.

( 12 ) MR. Pyne, learned Counsel for the applicant submitted that the appeal was with respect to a liability to which the old Province of Bengal was subject before the appointed day and that by force of Article 10 (2) (b) of the Indian Independence (Eights, Property and Liabilities) Order, 1947, that liability became a liability of the Province (now State) of West Bengal, as the cause of action arose wholly within the territories which, as from the appointed day, are the territories of the Province of West Bengal.

( 13 ) IT has not been disputed that the subject matter of this appeal lay wholly within the territories of the Province of West Bengal and that the cause of action arose wholly within those limits. As such Article. 12 (2) (b) of the said order will be attracted to this case if the appeal related to a liability of the Province of Bengal.

( 14 ) THE liability referred to in Article. 12 (2) (b) is any liability in respect*, of actionable , wrong other than breach of contract which is referred to in Section 10 (1 ).

( 15 ) THE appeal did not admittedly relate to any breach of contract. The question therefore is whether it related to any liability in respect of actionable wrong.

( 16 ) THE meaning of expression "actionable wrong" fell to be discussed in the recent case of the State of Tripura v. Province of East Bengal, 1951 S. C. R. 1. Patanjali'sastri J. , who delivered the judgment of Kania C. J. , Patanjali Sastri J, and Chandrasekhara Aiyar J. , observed that the learned judges of this Court, whose judgment they reversed, had placed "much too narrow a construction on the phrase liability in respect of actionable wrong" and dissented from the view of this Court that the phrase connoted "only a liability for damages for a completed tortious act".

( 17 ) AT page 12, Patanjali Sastri J