HARABATI Vs. SATYABADI BEHARA

JUDGEMENT

(1.) This is an application to review our judgment in the case of Satyabadi Behara V/s. Harabati (1907) I.L.R. 34 Calc. 223 ; 5 C.L.J. 192 by which the judgment of the District Judge was reversed and the decree of the Subordinate Judge restored. We are invited to review our judgment on two grounds namely, first, that it was not competent to this Court to entertain the appeal which lay, it is suggested, to the Court of the Judicial Commissioner of the Central Provinces, and, secondly, that the entire claim ought not to have been dismissed as barred by the principle of res judicata. The first of these points was not suggested when the appeal was originally heard; but as it raises a question of jurisdiction we have heard the learned vakil for the petitioner at full length. The second ground refers to a matter which is discussed in our judgment.

(2.) The facts so far as it is necessary to state them for the elucidation of the first point may be briefly outlined. The suit out of which the appeal arose was instituted in the Court of the Subordinate Judge of Sambalpur on the 7 December 1904. On the 8 September 1905, the claim was dismissed with costs. On the 17 October 1905, the plaintiff preferred an appeal to the District Judge of Sambalpur. On the 20 November 1905, the appeal was allowed, the decree of the first Court reversed, and the case remanded for trial on the merits. On the 20th February 1906, the defendants preferred the appeal to this Court, and it was heard by us on the 9 January 1907. On the 1 September 1905, the Governor-General in Council issued proclamation No. 2833 which declared and appointed that the district of Sambalpur shall cease to form part of the Central Provinces and shall be subject to and included within the limits of the Bengal Division of the Presidency of Fort William (Gazette of India, 2 September, 1905, Part I p. 636). Subsequently Act VII of 1905, called the Bengal and Assam Laws Act 1905, was passed by the Governor-General in Council. It received the assent of the Governor-General on the 29 September 1905, and came into force on the 16 October 1905. Section 2 of this Act provides that the proclamation referred to in the Preamble shall not be deemed to have effected any change in the territorial application of any enactment notwithstanding that such enactment may be expressed to apply or extend to the territories for the time being under a particular administration. Section 3 provides we quote only so much of it as applies to the case before us that all enactments which imme diately before the commencement were in force in the territory mentioned in Schedule C, that is, the Sambalpur district, shall in, their application to that territory be construed as if the references therein to the authorities mentioned in column 1 of Schedule D (which includes the Judicial Commissioner of the Central Provinces) were references to the authorities mentioned opposite thereto in column 2 of that schedule (that is to the High Court of judicature at Port William in Bengal). Section 5 provides that for the purpose of facilitating the application of enactments passed before the commencement of the Act, any Court may construe them with such alterations not affecting the substance as may be necessary or proper to adapt it to the matter before the Court. Section 6 provides that nothing in the Act shall affect any proceeding which at the commencement of the Act is pending in the territory mentioned in Schedule C, that is, the Sambalpur district, and every such proceeding shall be continued as if the Act had not been passed.

(3.) It is contended on behalf of the petitioner that the term "proceeding" in Section 6 of Act VII of 1905 means a suit in all its stages from the date of its institution up to the date of its disposal in the highest Court of Appeal to which it may be taken under the provisions of the law, and in support of this proposition, reliance is placed upon the observations of Sir Richard Garth C.J. in Ranjit Singh V/s. Meherbah Koer (1878) I.L.R. 3 Calc. 663 in which he laid down with reference to Section 6 of the General Clauses Act (I of 1868) that the term "proceeding" in that section included all proceedings in any suit from the date of its institution to its final disposal and therefore included proceedings in appeal. In our opinion, it is not necessary to consider whether the term "proceeding" in Section 6 of Act VII of 1905 has the same meaning as was put-upon it by Sir Richard Garth in connection with Act I of 1868, nor is it necessary to refer to the authorities upon the true construction of Section 6 of Act I of 1868 many of which were analysed and classified by Mr. Justice Wilson in his judgment in the Pull Bench case of Deb Narain Dutt V/s. Narendra Krishna (1889) I.L.R. 16 Calc. 267. In the first place, Act I of 1868 is no longer in force; it has been replaced by Act X of 1897, Section 6 of which has obviously no application to the matter now in controversy. In the second place, from the dates we have given above, it is clear, that on the 16 October 1905 when Act VII of 1905 came into force, no appeal had been preferred and no proceeding can be imagined by any fiction to have been pending on that date. In the third place, if by a fiction, the suit be imagined to be pending after the decree of the first Court had been made and before an appeal had been preferred, and if consequently nothing in Act VII of 1905 was under Section 6 to affect the suit, the petitioner, as we shall presently show, would be quite as much out of Court as if the provisions of the Act were held to be applicable.