LAKSHMAN KRISHNAJI LIMAYE Vs. BALKRISHNA RANGNATH

JUDGEMENT

(1.) This second appeal raises the question of res judicata under the following circumstances: On the 8th of September 1893, defendants Nos. 2 and 3 mortgaged the property in dispute to the plaintiff. Some time after that, a creditor of the said defendants, who had obtained a money-decree against them, attached the property in execution and was about to bring it to sale in 1893 when the plaintiff applied to the Court for an order that the property should be sold in execution of the decree-holder s rights subject to his, that is, the plaintiff s mortgage of the 8th of September 1893. In that miscellaneous proceeding, the Subordinate Judge raised this issue: Had the plaintiff the mortgage lien claimed by him? And, as the result of his investigation, the Subordinate Judge found that the plaintiff s bond was invalid and unenforceable because it was not attested by two witnesses as required by Section 59 of the Transfer of Property Act. The plaintiff then brought a regular suit to get rid of the effect of the order passed by the Subordinate Judge in the miscellaneous proceeding. That was a suit for a declaration that the plaintiff s bond was valid according to law and, therefore, enforceable. The suit was dismissed by the Subordinate Judge but in appeal, the District Judge held that the bond was valid and operative according to law and, therefore, enforceable. There was a second appeal to this Court on the 14th of August 1908 and this Court reversed the District Court s decree and restored that of the Subordinate Judge holding that the plaintiff s bond was void and, therefore, inoperative for want of attestations as required by Section 59 of the Transfer of Property Act. The result of that litigation, therefore, was that the defendants acquired as against the plaintiff a vested right under the decree of this Court in the second appeal of this Court, by which the plaintiff was held not entitled to set up his mortgage and bring the property to sale. The plaintiff, however, applied for a review of the decree of this Court on the ground that on the 24th of June 1908, Government had by a Notification exempted certain districts including the District of Poona from the operation of Section 59 of the Transfer of Property Act and given that Notification a retrospective effect from the 1st of January 1893. The Court having rejected the review application, the plaintiff brought the suit, which has led to the present second appeal, to enforce his mortgage.

(2.) Both the Courts below have held that the plaintiff s claim is res judicata by reason of the decree of this Court of the 14th of August 1908.

(3.) But it is contended for the plaintiff that the Government Notification takes his suit out of the principle of res judicata. That, however, is not a sound contention. It is true that the Government Notification exempted certain districts from the operation of Section 59 of the Transfer of Property Act with effect from the 1st of January 1893, and the present case comes from one of those districts. But the Government Notification cannot have a higher operation than a legislative enactment, and, in the case of a legislative enactment which repeals a previous law either partially or wholly, the principle is that it cannot affect vested rights acquired under decrees. That principle, enunciated by Tindal, C.J. in Ray v. Goodwin (1830) 6 Bing. 576 : 4 Moore and Payne 341 : 8 L.J.C.P. 212 : 31 R.R. 500 has been followed recently by the Privy Council in Lemm v. Mitchell (1912) A.C. 400 : 81 L.J.P.C. 173. Tindal, C. J. said: "I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law." Citing Tindal, C.J., with approval, their Lordships of the Judicial Committee of the Privy Council say in Lemm v. Mitchell (1912) A.C. 400 : 81 L.J.P.C. 173 that explicit language on the part of the Legislature is necessary to warrant "a Court...in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting."