NARAYANAN PARAMESWARA PANICKER Vs. KARTHIAYANI

JUDGEMENT

(1.) This second appeal arises from an order in execution of the decree in a small cause suit. Immovable property was sold in execution and the 4th defendant applied for cancellation of the sale on 13.11.1948 (28.3.1124). The application was dismissed by the first court and the 4th defendant preferred an appeal to the District Court. Upholding a preliminary objection that the appeal was not competent the learned District Judge dismissed the same and the 4th defendant has preferred this second appeal. The respondent was not present at the hearing.

(2.) The only point arising for decision is whether the appeal in the lower appellate court was maintainable. The sale was conducted and the application for cancellation of the same was made at a time when the Travancore Civil Courts Act, II of 1084, was in force. S.14(e) of the said Act provided that appeals and second appeals would lie against orders passed by the court in execution of small cause decrees against immovable property in the same manner and to the same extent as if such orders had been passed in the exercise of the ordinary original jurisdiction of such court. This Act was repealed when the Travancore - Cochin Civil Courts Act, XXI of 1951, was enacted on 1.4.1951. The new Act did not contain a similar provision. As the application for cancellation of the sale was decided only after the new Act was passed, the learned District Judge held that the provisions of the Act read with S.7 of the Indian Code of Civil Procedure which became applicable to this State on 1.4.1951 did not allow on appeal or second appeal from such orders. The question for decision, therefore, is whether the repeal of the Travancore Civil Courts Act of 1084 during the pendency of the proceedings for cancellation of the sale has the effect of depriving the parties of the right of appeal which was available to them until the date of passing of the new Act. The learned District Judge relied on the decisions in Mohammed v. Mohammed Rowther, 1946 TLR 675, Paramu Nadar v. Satyanesan, 7 DLR TC 265 , Pappathi Ammal v. Sivagannam Pillai, 1954 KLT 827 and Mathews Kathanar v. Easus Kathanar, 1955 KLT 17 FB. These decisions dealt with only the broad question whether procedural law is retrospective in its operation on pending actions. The question that arises in this case did not arise in any of these decisions. A similar question arose in Bhagavathi Pillai v. Sankara Pillai, 1953 KLT 557 . Immovable property was sold in that case in execution of a small cause decree. There was an application to set aside the sale which was dismissed by the execution court and when the matter came up in appeal to this court, the respondent raised a preliminary objection on identical grounds. This court held that the repeal of the old Act under which the party had a right of appeal had not the effect of depriving him of the same. Following the decision of the Privy Council in The Colonial Sugar Refining Co. Ltd. v. Irving, 1905 Appeal Cases 369 and the decisions of Indian High Courts such as Daivanayakam Reddiar v. Renukambal Ammal, 50 Madras 857 FB. Ram Singha v. Shankar Daya, 50 All. 965 F.B. and Alley Rasul v. Balkrishen, AIR 1934 All. 709 it was held that the auction sale having taken place and the petition for cancellation having been made before the law became changed the right of appeal was not lost of the party under such circumstances. The following passage from the judgment of the Privy Council referred to above may with advantage be extracted:

(3.) The second appeal is allowed but in the circumstances I make no order as to costs.