1. This is a cross-objection in S.A. No. 296 of 1925. The appeal has been dismissed by us on the merits.
2. It appears that two rival suits for preemption were instituted and the rival pre-emptors were impleaded in each other's suit. The appellants' suit was dismissed on certain grounds by the first Court, but the respondents' suit was decreed. It is noteworthy that the first Court framed two different and independent decrees disposing of the two suits separately. In either decree there was no reference to the disposal of the other suit. The appellants preferred an appeal from the decree dismissing their suit, but filed no appeal from the decree decreeing the respondents' suit. They however in their memorandum of appeal before the District Judge stated that under Section 18 of the new Pre-emption Act (No. II of 1922), they were entitled to prefer a single appeal against both the decrees and added that if in the opinion of the Court it was necessary to file two appeals, the appellants might be given time under Section 5 of the Limitation Act to file a second appeal. They filed no certified copies of the judgment and the decree in that other case.
3. The learned Subordinate Judge has held that the omission of the appellants to file an appeal from the decree allowing the respondents' claim was no bar. His opinion is that the provisions of Section 18 of the Act lay down rules of procedure and must govern the appeal, because in his view Section 2 does not govern Section 18, inasmuch as that section is confined to rights, privileges, obligations or liabilities acquired, accrued or incurred in respect of any transfer made before the commencement of this Act, and that expression does not apply to mere rules of procedure as distinct from substantive rights. We are of opinion that the cross-objections must be allowed. In the first place, if the view of the learned Judge is to prevail, the result would be that although the transfer in question was made prior to the coming into effect of the new Act, some of the provisions of the Act would be applicable, though others would not be. The whole of the provisions in Chapter III headed as procedure would have to be held to be applicable, and so would be other provisions which contain rules of procedure and not substantive law. If this view were to be accepted, Section 25, Sub-clause 2 would become wholly superfluous. Under that section, the cutting down of the period of limitation is to come into effect in spite of any provisions of the Act to the contrary. If Section 2 of the Act was inapplicable to rules of procedure, Section 25, Sub-clause 1 would have been applicable automatically, and there would have been no necessity to say so expressly in Sub-clause 2. Furthermore, we think that the expression used in Section 2, viz., any right, privilege, obligation or liability acquired, accrued or incurred in respect of any transfer made before the commencement of this Act, is a very wide one indeed. The respondents having obtained a decree by the first Court in respect of a transfer which had taken place before the coming into effect of the new Act had certainly acquired a right as well as a privilege. That right acquired under the decree could not be destroyed by any other provisions of this Act.
4. Even if one were not to hold this view, it is obvious that in this present case the respondents must succeed. Assuming for the sake of argument that the provisions of the Act embodying rules of procedure are applicable, even to the transfers prior to the coming into effect of this Act, and that therefore Section 18 was applicable, it is obvious that a non-compliance with the provisions of Section 18 would be a mere irregularity, and would in no sense amount to a want of jurisdiction. All that can be said is that the Court of first instance was bound to consolidate the two suits and pass a single decree determining the extent and the terms under which each party is entitled to pre-emption. The first Court however did not comply with this provision of the law and did not frame a single decree determining the rights of the parties under one decree. The appellants therefore had a decree against them passed by a competent Court having jurisdiction to pass such a decree. Though that decree was irregular and illegal, inasmuch as it did not comply with the provisions of Section 18 that fact alone would not entitle the appellants to ignore the decree and treat it as a nullity, or resist its execution. We may further point out that the last sentence in Section 18, laying down that it shall not be necessary by any party from such a decree to file more than one appeal, can only apply where such decree has been passed. In the present case no single decree contemplated by Section 18 has been passed. The appellants therefore cannot resist the cross-objection.
5. Having regard to these circumstances we are of opinion that the failure of the appellants to appeal from the decree passed in favour of the respondents is a bar to their claim being decreed. We cannot allow two contradictory decrees to remain in force which will create confusion in the Court below.
6. As regards the prayer made to the lower appellate Court to grant permission to the appellants to file another appeal the application was obviously premature. The question of extending time under Section 5 of the Limitation Act arises when a memorandum of appeal accompanied by certified copies of the decree and the judgment are filed. Parties are not entitled to invite the Court to decide the question of limitation before they actually file an appeal. The result is that the cross objection is allowed and the decree of the lower appellate Court is modified and the appellants' suit dismissed in toto with costs.