Satish Chandra, J.
1. A Division Bench of this Court had referred the following question to a Full Bench:--
'Where an execution proceeding is commenced after the enforcement of the U.P. Civil Laws (Reforms and Amendment) Act, 1954, for executing a decree passed after the commencement of the said Act in a suit instituted in 1934 and valued at less than Rs. 10,000 but more than Rs. 5000, will an appeal from an order passed in such an execution proceeding lie in this Court or in the Court of the District Judge?'
The question arises in this way. Bishambhernath Khazanchi filed a suit (No. 21 of 1934) in the Court of the Subordinate Judge, Agra, for partition and possession. The suit was valued at Rs. 7162/8. On 5th September, 1959, a final decree for partition and possession of a one-fourth share of the plaintiff was prononounced. The value of the plaintiff's share was determined at Rs. 27,278. An application to execute the decree was filed on 17th February, 1965. The judgment-debtors-respondents filed an objection under Section 47, Civil P.C., which was allowed on 23rd December, 1967. The objection was valued at Rs. 27,778. Thedecree-holder filed the present Execution First Appeal in this Court against the order dated 23rd December, 1967. The appeal was valued at the same figure of Rs. 27,778.
2. The respondents moved an application under Rule 24 of Chapter VIII of the Rules of Court stating that an appeal against the order dated 23rd December, 1967, lay to the Court of the District Judge. The present appeal to this Court was incompetent. It was prayed that the appeal be disposed of on this preliminary point. The Division Bench hearing the matter felt that the question was of general importance and deserved to be adjudicated by a Full Bench. That is how the matter, has come before this Full Bench.
3. The question whether an appeal would lie to this Court or to the Court of the District Judge in the present case depends on the impact of the settled principle that a right of appeal is a substantive right and vests on the date of the commencement of the lis, upon the amendment introduced to Section 21 of the Bengal, Agra and Assam Civil Courts Act by the U.P. Civil Laws (Reforms and Amendment) Act, 1954, considered in the context of the relevant provisions in the Code of Civil Procedure.
4. The Code of Civil Procedure, 1908, consolidates and amends the laws relating to the procedure of the Courts of Civil jurisdiction. In Part I it deals with suits in general. Its Part II provides for execution. Part VII deals with appeals and Part VIII relates to reference, review and revision. Section 96 provides an appeal from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Courts. It confers a right of appeal from decrees, but does not provide the forum of appeal.
5. The Bengal, Agra and Assam Civil Courts Act, 1887, by Section 21 specifies the forum of appeals. Sub-section (1) dealt with decisions of Civil Judges. It reads:--
'21. Appeals from Civil Judges and Munsifs-
(1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie--(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed ten thousand rupees, and
(b) to the High Court in any other case.'
Previously, Clause (a) mentioned 'five thousand rupees.' The U.P. Civil Laws (Reforms and Amendment) Act, 1954, which came into force on 30th November, 1954, repealed the figure five thousandand re-enacted in its place the figure 'ten thousand rupees'. So, previously an appeal lay to the District Judge where the value of the original suit did not exceed rupees five thousand, but after this amendment an appeal would so lie if the valuation did not exceed rupees ten thousand. An appeal would lie to the High Court only if the valuation exceeded rupees ten thousand.
6. Section 21 governs an appeal from a decree or order in an original suit, as well as in any proceeding arising out of it. For both these matters the test is the value of the original suit. The value for which the decree or order may be passed or the value of the subject-matter of the appeal are irrelevant. Even if a proceeding arising out of the suit is valued independently or differently, such valuation would not be material. For choosing the forum of appeal, the value of the original suit out of which the proceeding, in which the decree or order sought to be appealed against was made, arose, would be decisive. (Vide also Purshottam Lal Tandon v. Shyam Nath Segal, 1957 All LJ 495). In the present case, the suit was valued at Rs. 7,162/8. That would be the material and relevant valuation for determining the forum of the present appeal, and not the value of the subject-matter of the appeal.
7. The learned counsel for the judgment-debtors-respondents urged that the right of appeal is a substantive right. It vests on the date of the institution of a suit. But, proceedings in execution of a decree are entirely independent of the suit. The right of appeal against decrees passed in execution would accrue on the date of the institution of the execution application. In the present case the execution application was filed on 17th February, 1965. Section 21 (1) had been amended by then. The amended provision would apply. Under it an appeal lay to the District Judge. It was not competent in the High Court. The submission raises the problem whether an execution application is so independent of the suit that it cannot be treated as a proceeding arising out of the suit. The point is fairly controversial. Since the question referred to the Full Bench principally relates to and can properly be answered on the interpretation of the 1954 Amending Act, it is unnecessary to express an opinion on it.
8. A litigant has a common law right to institute a suit of a civil nature in some Court or the other; but he has no such right of appeal. But it is settled that the right of appeal exists only when it is clearly conferred by a statute. The right of appeal so conferred by a statute is a substantive right, and is not a mere matter of procedure. The institution of the suit carries with it the implication that theright of appeal, then in force, is preserved to the parties thereto till the rest of the career of the suit. The right vests in the litigant on the date the lis commences. This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment (vide Garikapati Veeraya v. Subbiah Choudhry : 1SCR488 ,
9. The right of appeal being a creature of the statute, its nature and character will be determined and controlled by the provisions. The question whether the forum of appeal is an ingredient of the substantive right of appeal, or is a matter of its procedure, is not free from doubt; but assuming that it is substantive, the question, whether it has been taken away expressly or by necessary intendment would depend on the ambit of the relevant provisions rather than on theoretical considerations,
10. The Privy Council decision in Canada Cement Co. Ltd. v. East Montreal (Town of) AIR 1921 PC 219 is interesting. In that Canadian case, the Circuit Court of Montreal passed a decree on January 5, 1921, against the appellant. Under the Code of Civil Procedure, which was then in force, the decisions of that Court were appealable in certain cases to a Court of review. While the suit was pending, a new statute, Quebec Statute 10 Geo. 5 C, 79, was enacted. It prospectively repealed the various sections of the Code of Civil Procedure providing for an appeal from the decisions of the circuit Court of Montreal. Section 42 of the new Act provided that the Court of King's Bench would have jurisdiction in respect of all matters in which appeal lay under the law. Since the law had repealed the provisions regarding appeal from the Court of Montreal, naturally, no appeal lay against the decisions of that Court The appellant filed the appeal in the Court of the King's Bench. The respondent took an objection that the appeal was not competent For the appellant, reliance was placed upon Section 64 of the new Act, which provided:--
'Unless otherwise provided by this Act, all cases, matters or things which, at the time of its coming into force, were within the competence of the Court of Review, shall be within the competence of the Court of the King's Bench, sitting in appeal.'
Lord Buckmaster, speaking for the Judicial Committee, upheld the objection. He observed:---
'Now this appeal had not been brought when the statute was passed, although proceedings before the circuit Court had been instituted. Consequently, the statutes giving whatever right of appeal may nave existed were replaced by Sectionswhich gave none, and Section 64 of the Act which provided that matters within the competence of the Court of review should be subject to the King's Bench, must be regarded as qualified by the provision that the powers of the Court of review with regard to the circuit Court had been taken away and consequently to that extent the statute had 'otherwise provided''.
11. Dealing with this case, S.R. Das, C.J., speaking for the majority in Garikapati Veeraya's case, : 1SCR488 that this case was an example of the vested right of appeal being taken away, not by the abolition of the Court of appeal, but by an express or necessary intendment of the saving clause.
12. The case illustrates the principle that even where the Court of appeal continues to exist, but the provision conferring the right of appeal is repealed prospectively, it shows an intention that the vested right of appeal in previously instituted cases was not to be exercised in the new Court of appeal.
12-A. The Amending Act of 1954 also provided a saving clause in Section 3. It stated:--
'3. Savings. (1) Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or Incurred or any release or discharge of or from any debt, decree, liability, or any jurisdiction already exercised, and any proceeding instituted or commenced in any Court prior to the commencement of this Act shall, notwithstanding any amendment herein made, continue to be heard and decided by such Court.
(2) Where by reason of any amendment herein made in the Indian Limitation Act, 1908, or any other enactment mentioned in column 2 of the Schedule, the period of limitation prescribed for any suit or appeal has been modified, or a different period of limitation will hereafter govern any such suit or appeal, then, notwithstanding any amendment so made or the fact that the suit or appeal would now lie in a different Court, the period of limitation applicable to a suit or appeal, as aforesaid, in which time has begun to run before the commencement of this Act shall continue to be the period which but for the amendment so made would have been available.'
Sub-section (1) preserves the rights which had already accrued or had already been acquired. So, the substantive right of appeal which had accrued to a litigant would remain unaffected by any amendments introduced by the amending Act of 1954. Sub-section (2), however, seems to restrict this wide implication of Sub-section (1). Under it, where the periodof limitation for any suit or appeal has been modified or a different period is prescribed by the amendments, then notwithstanding the amendments, and further, notwithstanding the fact that the suit or appeal would now lie in a different Court, the period of limitation applicable to the suit or appeal in which time has begun to run before the commencement of this Act, shall continue to be the period which, but for the amendments so made, would have been available. Two things are significant. The pre-existing period of limitation would continue to be available only where it had begun to run, that is to say in cases where the decree or order had been passed before the commencement of the Act. The previously prescribed period of limitation would not be available if the suit was pending, and the decree or order had not been passed till that date. In this way, the right of appeal was curbed and modified in respect of its period of limitation.
13. Secondly, the effect in relation to the period of limitation has been expressly stated to operate notwithstanding the fact that an appeal would now lie in a different Court. Sub-section (2) deals with suits filed prior to the date of the commencement of the Act. It says that though the appeal would now He in a different Court, yet in decided suits the previously prescribed period of limitation for an appeal would nonetheless be available. The necessary intendment appears to be that an appeal in suits pending on that date would lie in the new forum; because otherwise the phrase 'notwithstanding the fact that the appeal would now lie in a different Court' would fulfil no purpose, carry no meaning. If this phrase had not been there, the position would have been that the appeal would have lain to the old Court, but if time had begun to run, the old period of limitation would be available. The legislature cannot be presumed to be indulging in surplusage. The conclusion seems inescapable that this phrase was designed to catch and canalise the right of appeal in pending suits.
14. In my opinion, Sub-section (2) is an exception to Sub-section (1) in respect of two matters relating to the potential right of appeal (which has not become perfected by the passing of the decree), namely, the forum and the period of limitation. This Act, therefore, changes the forum of appeal against decrees or orders passed after its commencement, in suits instituted prior to its commencement.
15. I venture to think that this view is in line with the decision of the Supreme Court in Lakshmi Narain v. First Additional District Judge, Allahabad : 1SCR362 . There, it was observed that the Statement of Objects and Reasons of the amending Act, inter alia, stated that:--
'In order to reduce the volume of work in the High Court and to ensure quicker disposal of appeals, the Bengal, Agra and Assam Civil Courts Act, 1887, is proposed to be amended so that appeals in cases from Rs. 5,000 to Rs. 10,000 in valuation may be heard by the District Judge.'
The Supreme Court held:--
'It is true, as pointed out by the High Court, that the object behind the amendment in question was to give relief to the High Court. But the High Court was in error in thinking that the legislature amended the law as the 'relief was required instantaneously'. The amending Act 'may have given relief to the High Court in respect of appeals to be instituted after the commencement of the Act,' but it did not grant the much required relief to that Court in respect of the pending first appeals.' (emphasis (here in ' ') mine).
The Supreme Court thus seems to have been of the view that the change of forum introduced by the amending Act would apply to appeals that may be instituted after the commencement of the Act. If the amending Act is interpreted to apply only to suits filed after it came in force, the object of the legislature would not be achieved even after a generation. In the present case, the suit was filed in 1934. If an appeal filed even 33 years after, is to lie in the High Court, the legislature may as well have not made any amendment with a view to relieve the High Court. The Courts ought, as far as is reasonably possible, to so construe the provisions as would advance the aim, aspiration and purpose of the legislature, and not frustrate it altogether.
16. For the respondents, reliance was placed upon the decision of a Division Bench of this Court in Cyril Austin Spencer v. M.H. Spencer, 1955 All LJ 307. There, the matter was considered before the admission of the appeal. The respondents were not heard. The Bench expressed its opinion 'as at present advised'. The Bench held:--
'Section 3 of the amended Act says that any right, title, obligation or liability already acquired, accrued or incurred shall continue to be heard and decided by such Court. Accordingly, the right of appeal which had become vested in a party before the commencement of the Act is not affected by the provisions of the Act. All those appeals, therefore, which lay to this Court under the old law would still continue to lie to this Court provided that the suit or other proceeding was instituted prior, to the commencement of the Act.'
It is apparent from these observations that the Bench considered only Sub-section (1) of Section 3. It did not take intoaccount Sub-section (2) of Section 3, The decision is, with respect, per incurium.
17. In the present case, the original suit was filed in 1934. It was pending on, 30th November, 1954, when the U.P. Civil Laws (Reforms and Amendment) Act, 1954, came into force. The execution application was filed in 1965. The decree sought to be appealed against was passed on 23rd December, 1967. It would be governed by the amended provision in Clause (a) of Section 21 (1) of the Bengal, Agra and Assam Civil Courts Act. The valuation of the original suit was Rs. 7,162/8. Accordingly, the appeal lay to the District Judge. It was not competent in this Court.
18. My answer to the question referred to this Bench is that an appeal would lie to the District Judge, and not in this Court.
S.N. Dwivedi, J.
19. I agree.
R.B. Misra, J.
20. I agree.
21. BY THE COURT: Our answer tothe question referred to this Bench is thatan appeal would lie to the Court of theDistrict Judge and not to the High Court.