Basil Scott, C.J.
1. This is an application under Section 622 of the Code made by the 5th defendant in a mortgage suit calling for the interference of the Court in its extraordinary jurisdiction.
2. It appears that in the beginning of 1905 this suit was filed by a mortgagor against certain defendants one of whom is the present applicant, for redemption of a mortgage. At the time the suit was filed the Dekkhan Agriculturists' Relief Act had not been extended to the Thana District and therefore although the plaintiff in the title to the plaint described himself as an agriculturist, it was a matter of no importance and the allegation was disregarded by the defendant.
3. At the time the suit was tried the Dekkhan Agriculturists' Relief Act had been extended to the Thana District. We are told it was so extended in the month of August 1905. At the trial notwithstanding the protest of the 5th defendant, the learned Subordinate Judge took the accounts of the mortgage upon the footing of the application of Sections 12 and 13 of the Act and gave the plaintiff the benefit of those provisions.
4. The 5th defendant appealed and while the appeal was pending the Full Bench decision of this Court was reported (Fatmabibi v. Ganesh : (1907)9BOMLR917 , in which it was held that the provisions of part of Sections 12 and 13 of the Act were not retrospective so as to apply to a suit instituted before the date the Act came into force in the particular District in which the suit was instituted.
5. The plaintiff then seeing that by reason of the statement of the law contained in that judgment the defendant's appeal was likely to succeed, applied to the Judge of the appellate Court for leave under Section 373 of the Civil Procedure Code to withdraw the suit with liberty to file a fresh suit upon the same cause of action in order that he might, in the fresh suit, obtain the benefit of the provisions of Sections 12 and 13 of the Dekkhan Agriculturists' Relief Act.
6. The learned Judge of the appellate Court acceded to the application upon the terms that the plaintiff should pay to the defendant all the costs incurred up to date.
7. It is from that order that the fifth defendant now comes, to this Court in its extraordinary jurisdiction.
8. Now it is a well recognised principle of law that where the law is altered when a suit is pending, the law which existed when the suit was commenced must decide the rights of the par-ties (see The Gujarat Trading Go. v. Trikamji Velji (1867)3 B.H.C45. Upon that principle the suit should have been tried upon the footing that the Dekkhan Agriculturists' Relief Act had no application as between the parties.
9. In our opinion the learned Judge of the appellate Court in permitting the plaintiff in the stage of appeal to withdraw the suit with liberty to file a fresh suit under Section 373 and thus get the benefit of an alteration in the substantive law, acted without jurisdiction, for we do not think that the provisions of Section 373 countenance any such procedure.
10. We therefore set aside the order and direct that the appeal should proceed having regard to the state of the law as it existed when the suit was filed.
11. The other grounds which were put forward in the application by the plaintiff to the appellate Court have not been dealt with in this Court as they were not dealt with in the appellate Court and we leave it to the appellate Court to deal with those points as it may think fit.,
12. The rule is made absolute with costs.