PRABIR DAS Vs. A B PAUL

JUDGEMENT

(1.) The plaintiffs-appellants brought a suit for specific performance of the agreement for sale of the property. The trial court decreed the suit. The defendants thereafter preferred a first appeal before the Judicial Commissioner, Tripura which was subsequently transferred to the High court. The learned Single Judge of the high Court on 5/7/1974 allowed the appeal of the defendants and set aside the decree of the trial court. The plaintiffs, on 3/8/1974, filed a Letters Patent appeal in the High Court. On 8/8/1974, notices were issued on the said Letters patent Appeal. Notices so issued were served through the Counsel on 3/6/1975, while the said LPA was pending, the code of Civil Procedure was amended by Act No. 104/1976 which came into force w. e. f. 1/2/1977. After the said amending Act came into force, one of the respondents in LPA - Manoranjan Paul died. As such, the appellants moved an application for his substitution. The substitution application was allowed on 28/4/1978. Subsequently, when the LPA came up for hearing the High Court dismissed the said appeal on the ground that it was not maintainable in view of section 100-A of the Civil Procedure Code. It is against the said judgments, the plaintiffs have preferred these appeals.

(2.) Shri Har Dev Singh, learned senior counsel appearing for the appellants urged that the view taken by the High court that the appeal was not maintainable in view of Section 100-A of the Civil procedure Code is erroneous and in fact the LPA was required to be heard and decided on merits by virtue of Section 97 (n) of the Amending Act. We find merit in the contention. Section 100-A inserted by the Amending Act runs as under:-

(3.) Section 97 of the Amending Act runs as under: