CHANDRA NATH GHOSH Vs. RAJANI KANTA GHOSH

JUDGEMENT

(1.) THIS is the defendants' appeal arising out of a suit on mortgage which was valued at Rupees 9,287 -11 as. The suit was filed sometime in the year 1956 and it was registered as Title Suit No. 129 of 1956 of the Court of the 9th Subordinate Judge at Alipore, 24 -Parganas. The suit was decreed in part by the trial court by its judgment, dated November 29, 1957, the decree being actually signed on January 9, 1958. On April 3, 1958, the present appeal was filed in this Court by the defendants for relief to the extent of Rs. 800/ -only and the appeal was valued at that figure, namely, Rs. 800/ -.

(2.) THE plaintiff respondent, after entering appearance, took a preliminary objection to the maintainability of the appeal in this Court under and in view of West Bengal Act XVI of 1957 (which had come into force on January 1, 1958), whereupon it was directed to be heard on that point and it was actually so heard by us on May 13, 1959. Several other appeals also came up for hearing on the same preliminary point, of which the last one was heard in the early part of this month. In the light of the arguments in the different appeals, we have considered the whole matter, but, so far as this appeal is concerned, the point appears to be somewhat simple and concluded against the objecting respondent by the express terms of Section 4 of the very Act itself, upon which he relies for his above preliminary objection, and, accordingly, it needs no elaborate discussion.

(3.) TO the above contention of the plaintiff -respondent, the appellants' rejoinder is that the trial court's decree' in the present case must be taken to have been made or passed on 29 -11 -1957, on which date the judgment was delivered by the learned Subordinate Judge, as, under Order XXI, Rule 7 of the Code of Civil Procedure, the decree must bear the date of the judgment and the fact that the decree was drawn up later and/or was actually signed some time after 1 -1 -1958, when the above amending statute came into operation, - - or, to return to the facts of this case, was actually signed on 9 -1 -1958, - - would not affect that position and, in that view, the present case would be directly covered by the saving section, Section 4, of the said amending statute and the present appeal would lie in this Court under the old law, namely, the Bengal Agra and Assam Civil Courts Act 1887 (Section 21) (as it stood before the present amendment by the above amending statute, West Bengal Act XVI of 1957) which, in its said unamended form, will clearly apply to it in view of the saving provision of the said Section 4 of the above amending statute, West Bengal Act XVI of 1957, providing that 'nothing in the Act shall apply to or affect any appeal from any decree or order passed before the commencement of the Act.'