BHAGAVATHI PILLAI Vs. SANKARA PILLAI

JUDGEMENT

(1.) 19th defendant is the appellant in this civil miscellaneous appeal. The appeal is from an order refusing to set aside the auction sale in Small Cause No. 37 of 1110 on the file of the Trivandrum District Court. The suit was for arrears of jenmi dues filed under S.33 of the Travancore Jenmi and Kudiyan Act, V of 1071. Under that section suits for jenmi dues have to be filed in the District Court when the value of the claim exceeds Rs. 30 but does not exceed Rs. 100, and under S.34 of the Act the procedure to be followed for the trial of such suits shall be the procedure prescribed by law for the trial of non appealable cases. In execution of the decree the decree holder proclaimed for sale one acre and 83 cents of garden land out of which 50 cents were sold for Rs. 161-8 as. 6 ps. The 19th defendant put in a petition to set aside the sale under O.21, R.87 of the Travancore Code of Civil Procedure on the ground of material irregularity and fraud in publishing and conducting the sale. The court below rejected the petition by its order dated 28-1-1952. The appeal is from that order.

(2.) A preliminary objection was raised by learned counsel for the respondent that an appeal would not lie from the order of the court below. The argument is that the order is one passed in a Small Cause suit and is, therefore, not appealable. It is not disputed that under the new Code of Civil Procedure and under the new Civil Courts Act (Act XXII of 1951) the order is not appealable. Under S.7 of the Code of Civil Procedure the provisions of the Code relating to execution of decrees in suits excepted from the cognizance of a Court of Small Causes and those relating to execution of decrees against immovable property shall not apply to courts in Part B States exercising jurisdiction corresponding to that exercised by a Court of Small Causes under the Provincial Small Cause Court Act, 1887. S.19 of the Civil Courts Act, Act XXII of 1951, provides that "the procedure prescribed in the Code of Civil Procedure, 1908, except the provisions specified in S.7 and Order 50 thereof as inapplicable to suits tried as Small Causes, shall be the procedure followed in a Court of Small Causes and in a court exercising the jurisdiction of a Court of Small Causes in all suits cognisable by it, and in all proceedings arising out of such suits". Under S.20 of the Civil Courts Act "the decisions of Judges of Small Cause Courts and of Munsiffs Subordinate. Judges and District Judges in the exercise of the small cause powers shall be final except orders specified in clause (h) of sub-section (1) of S.104 of the Code of Civil Procedure, 1908, from which an appeal shall lie, subject to the provisions of the said Code relating to reference and revision". It is thus clear that under the Code of Civil Procedure and the Civil Courts Act now in force the order of the Court below is not appealable.

(3.) But the auction sale in this case took place before the new Civil Courts Act was enacted and before the present Code of Civil Procedure came into force in this State, and the petition to set aside the sale was also filed before the coming into force of the new Code of Civil Procedure and the Civil Courts Act. Under the General Clauses Act when any Act repeals an enactment, unless a different intention appears, the repeal shall not affect any investigation, legal proceeding or remedy in respect of any right acquired or accrued under the repealed enactment and any such investigation, legal proceeding or remedy, may be instituted, continued and enforced as if the repealing Act had not been passed. There is nothing in Act II of 1951 extending the Code of Civil Procedure to Part B States to show that the provision contained in S.7 of the Code will apply to proceedings started before the date on which that Act came into force. Neither is there anything in the Travancore Cochin Civil Courts Act, Act XXII of 1951, to show that the provisions of that Act will apply to proceedings started before the commencement of that Act. It is well settled that the right of appeal is a substantive right and that it will not be affected by a repealing or amending enactment unless it is expressly taken away by that enactment. The leading case on the subject is The Colonial Sugar Refining Co. Ltd. v. Irving (1905, Appeal Cases 369). In Alley Rasul v. Balkishen (AIR 1934 Allahabad 709) it was held that where a new Act is passed subsequent to the filing of a suit, the suit and an appeal and the proceedings in execution arising therefrom are governed by the old Act unless the new Act expressly provides that they will be governed by the new Act. To the same effect is the decision of the Madras High Court in Daivanayakam Reddiar v. Renukambal Ammal (50 Madras 857) (FB). In Ram Singha v. Shankar Dayal (50 Allahabad 965) (FB) it was held that a right of appeal in a suit is governed by the law prevailing at the date of the institution of the suit and not by the law prevailing at the date of the decision of the suit or at the date of the filing of the appeal.