CHANDRESHWAR BHUTHANATH DEVASTAN Vs. SUBIRAJ PRABHAKAR NAIK

JUDGEMENT

(1.) Heard the learned Counsel for the appellant and the respondents as well as the other learned Counsel in the above matter including the learned Advocate General to assist us on the issue as to whether Section 100A of the Code of Civil Procedure, 1908, which has been amended by the Code of Civil Procedure (Amendment) Act, 2002 will be prospective in operation or retrospective in operation. The aforesaid Amendment was brought into force on 1st July, 2002.

(2.) THE only issue which has been argued is whether any of the pending Letters Patent Appeals which have already been admitted by this Court are also covered by the said Section 100A as mentioned hereinabove, in the sense whether pending admitted Letters Patent Appeals survive in view of the aforesaid amendment or not.

(3.) IN the aforesaid Code of Civil Procedure (Amendment) Act, 1976 by Section 97 there was repeal and savings which reads as under: - Section 97. Repeal and savings. - (1) Any amendment made, or any provision inserted in the principal Act by State Legislature or a High Court before the commencement of this Act shall except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act. stand repealed. (2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub -section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897). (m) the provisions of Section 100 of the principal Act. as substituted by Section 37 of this Act, shall not, apply to or affect any appeal from an appellate decree or order which had been admitted before the commencement of the said Section 37 after hearing under Rule 11 of Order XLI; and every such admitted appeal shall be dealt with as if the said Section 37 had not come into force. (n) Section 100A, as inserted in the principal Act, by Section 38 of this Act, shall not apply to or affect any appeal against the decision of a Single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the said Section 38 and every such admitted appeal shall be disposed of as if the said Section 38 had not come into force. (3) Save as otherwise provided in Sub -section (2), the provisions of the principal Act as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement withstanding the fact that, the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.