1. The question whether the dhara lands received by defendant in execution of the decree were included in the decree, is a question relating to execution-Muttuvelu Pillai v. Vythilinga Pillai 5 Mad. H.C. R, 185 and Jogendro Narain Koonwar v. Ranee Surno Moyee 14 Cal. W.R. Civ. Rule., 39-under Section 11 of Act XXIII of 1861, which section, if it stood alone, would bar a separate suit.
2. The saving provision of Section 387 of Act VIII of 1859 was repealed by Act XIV of 1870. It deals with procedure only.
3. Section 3 of Act X of 1877 only saves 'procedure prior to decree', and leaves procedure after decree to the uncontrolled operation of the bar reproduced in Section 244.
4. Assuming that the 'proceedings' in execution of the decree of 1853 had commenced before the 28th August, 1861, when Act XXIII of 1861 came into force, these 'proceedings' would not be affected by the repeal in 1870. See Section 6 of the General Clauses Act I of 1868.
5. But where is the authority for treating the fresh suit as a part of any such proceedings? None has been shown us.
6. That an appeal is to be regarded as a stage in a suit or judicial proceeding leading up to final disposal is settled by the decisions in Ratanchand Shrichand v. Hanmantrav Shivbakas 6 Bom. H.C. R, 166, A.C.J .; Thakur Prasad v. Ahsan Ali I.L.R. All., 668 ; Runjit Singh v. Meherban Koer I.L.R., Cal, 662 . But a plaint is the mode of initiating what in the Acts of 1859, 1861, 1877, and 1882 is called a 'separate suit,' and the analogy of an appeal is inapplicable in the face of such language. There is no intrinsic unity between the execution proceedings and the separate suit. See Chinto Joshi v. Krishnaji Narayan I.L.R., 3 Bom., 214 . The rule in Section 6 of the General Clauses Act does not govern the remotest consequences, but only such a series of proceedings as group themselves naturally together-Gurupadapa Basapa v. Virbhadrapa Irsangapa I.L.R., 7 Bom., 459.
7. The time at which, as alleged by plaintiff, he was entitled to bring the suit did not accrue till 1882. So Section 11 of Act XXIII of 1861 and Section 244 of Act X of 1877 did not bar any vested right-Papa Sastrial v. Anuntarama Sastrial I.L.R., Mad., 98 ; Kimbray v. Draper 3 Q.B., 160
8. The definite language of the Acts about procedure, namely, Act VIII of 1859, Section 283, Act XXIII of 1861, Section 11, and the two later Codes, Section 244, appears to us to overrule the wide construction of Section 6 of the General Clauses Act propounded by Mr. Shantaram. Two of these enactments are later than the General Clauses Act, which applies only to 'proceedings commenced'. There is nothing in these words to indicate an intention to confer a right to bring future suits of a sort which two earlier Acts had already barred. We think, therefore, we should follow the special enactments as regards 'proceedings'.
9. If the sections above quoted be regarded as mere procedure, the special enactments apply-Wright v. Hale 30 L.J., Ex., 40 ; Kimbray v. Draper 3 Q.B., 160. Section 387 of Act VIII of 1859 applies in terms to procedure only, and it has not been contended that under the earlier law the fresh suit was contemplated as a part of the older proceeding in execution.
10. We think the view we have expressed is supported by the opinions of the Judges In the matter of the petition of Ratansi Kalianji I.L.R., 2 Bom., 148 and 218 and is consistent with the language of Act XIV of 1870. By treating a separate suit as a new proceeding, we construe the Codes as having prospective effect. With reference to some of the decisions quoted, we think this view of the matter will not work injustice. As pointed out by Mr. Khare, the law allowed similar and suitable remedy while barring separate suit.
11. We, therefore, reverse the decree of the Assistant Judge, and restore that made by the Subordinate Judge dismissing the suit. Costs on the plaintiff throughout.