JUDGMENT

Gwyer, C.J. - In this case I find myself entirely in agreement with the judgment to be delivered by my brother Varadachariar, which I have had an opportunity of reading. I do not think it necessary therefore to deliver a judgment of my own; but, with regard to the question whether the Court is entitled to take into account legislative changes since the decision under appeal was given, I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In Patterson v. State of Alabama (1934) 294 U S 600 at p. 607, Hughes C. J., said:

We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.

2. This view of its powers was re-affirmed by the Court in a case decided as recently as March last:Minnesota v. National Tea Company (1940) 309 US 551 at p. 555.

Sulaiman, J.

3. The facts of the case are given in the judgment of my brother. I propose to consider separately a few points of law that have created difficulties. As would appear from the orders passed by the Federal. Court in this case on 5th March 1940 (formerly case No. 14 of 1939, reported in 3 FLJ 15,Lachmeshwar Prasad v, Girdhari Lal ('40) 27 AIR 1940 F C 26: the High Court after granting a certificate Under Section 205(1) of the Act (Government of India Act, 1935), declined to extend the time for making the deposit, required by Order 45, Rule 7, Civil P.C (Civil Procedure Code, 1908), and therefore did not admit the appeal. The appellants were, however, excused by this Court from compliance with so much of Order 10, F.C.R. (Federal Court Rules) as required them to get the record prepared and printed in the High Court, and to lodge their petition of appeal within sixty days of the admission of the appeal by the High Court.

4. The Bihar Money-Lenders Act (3 of 1938) (read with Act 5 of 1938) was repealed and replaced by Act 7 of 1939, which came into force in May of that year. Although the High Court did not declare the appeal admitted, the appellants lodged their petition of appeal in December 1939, urging inter alia that Section 11 of the old Act was not void and that in any case Section 7 of the new Bihar Act was applicable. They also raised a number of other grounds relating to the merits of the case. The plaintiffs filed a cross-appeal, which they have withdrawn. "Without rearguing the point, Sir B. L. Mitter, the Advocate-General of India, has "formally" objected to the appeal.

4. Competency of the appeal - The difficulty to be considered arises out of Rule 17, which has been added to Order 45, Civil P.C., by the Adaptation Order [Government of India (Adaptation of Indian Laws) Order 1937]. The powers of the Judicial Committee are very wide, and the full and unqualified exercise of His Majesty's pleasure in receiving appeals to His Majesty in Council is expressly saved by Section 112(1)(a), Civil P.C. The Federal Court has no power to entertain an appeal by giving a special leave. Section 205 of the Act specifies the case when an appeal would lie to this Court. Section 293 of the Act provides for adaptations and modifications of existing Indian laws by an Order in Council. The Adaptation Order has, with a few modifications, made Order 45, Civil P.C., applicable to Federal Court appeals.

5. As Under Section 109, Civil P.C, the right to appeal to His Majesty in Council can be modified only by an Order in Council, such an order was issued on 17th April 1920, and deals with the procedure to be followed in the Indian High Courts, while the Judicial Committee Rules, dated 2nd May 1925, deal with the practice in the Privy Council, as saved by Section 112(1)(b), Ci