1. The Following question has been referred to the full Bench:
Having regard to the provisions of the Ajmer Courts Regulation, 1926 (Regulation IX of 1626), can a reference be made to this Court under Sections 17 and 18 of Regulation I of 1877 on a point of law arising in connection with an application in execution made after Regulation IX of 1926 came into force but in connection with a suit instituted before that Regulation came into force?
2. A suit for sale on a mortgage was filed in 1913; and a decree absolute was obtained in 1920. The first application for execution was filed in 1920. Later, owing to the deaths of the parties, there were proceedings for the substitution of names. An objection was raised by the present appellant in 1925 that he was not the legal representative of the deceased. In 1928 the Subordinate Judge decided in his favour; but the order was upset in appeal in 1930.There was a second appeal to the Judicial Commissioner, who set aside the order and held that the appellant was the legal representative but left other questions for the decision of the Court below. When (he case went back to the first Court, two sets of written objections were filed by the appellant on January 3, 1931, and January 19, 1931, to which the decree-holder filed written replies. Issues, were framed on the points thus raised and evidence was recorded. On March 15, 1933, the Subordinate Judge held that the appellant was the legal representative of the deceased and that only two out of several properties could be sold in execution of the decree.
3. Both parties appealed to the District Judge, who on June 16, 1933, returned the appeals for presentation to the Judicial Commissioner, but this order was on revision set aside on July 21, 1933. The appeals: were then again presented to the District Judge, who dismissed them on September 22, 1933. An application for review was rejected on May 11, 1934. Another, application for reference to the Allahabad High Court was made on May 11, 1934, and the case was referred to the High Court on December 5 1933. In the meantime the old, Regulation was replaced by the Regulation of 1920 When the reference came before a Bench of this Court, a preliminary objection was taken on behalf of the respondent that the case was give in by the new Regulation under which no reference can be made to the High Court. The preliminary objection was overruled, the Bench holding that inasmuch as the suit had started while the old Regulation was in force, the execution proceeding was governed by the old Regulation and not the; new Regulation. They, however, returned the reference on March 8, 1934, on the ground that the questions raised in it were questions of fact and not of, law. Thereafter some more applications were dismissed in Ajmer. While the application for reference to the High Court was pending, a fresh set of objections were filed on November 12 or 13, 1932, which were dismissed by the Subordinate Judge on November 28,1933, on the ground that they were barred, by res judicata.
4. An appeal from that order was dismissed on July 6, 1934, and an application for review was rejected on July 26, 1934: but-another application containing a set of objections was filed on August 11, 1934, which was dismissed by the Subordinate Judge oil September 3, 1931, on the ground that they were barred by res judicata. The appeal was dismissed on October 18, 1934 on the same ground. An application for reference to the High Court was also dismissed on January 2, 1934. But on revision the Judicial Commissioner held on July 18, 1935, that the District Court should have referred the matter to the High Court. The District Judge accordingly en January 17,1936, referred the question whether the consideration of the new objections was barred by the principle of res judicata can not. When the matter came up before a Bench of this Court, the point was raised that the reference was incompetent as the case was governed by the new Regulation and not the old Regulation. Accordingly the question quoted above has been referred to this Bench for an answer. The point is certainly not free from difficulty and there is much to be said in support of either view so far as a right of appeal is concerned, it has been held definitely by their Lordships of the Privy Council that it is a substantive right which cannot be taken away by new legislation unless there is a clear intention to that effect manifested. In Colonial Sugar He fining Co., Ltd. v. Irving (1905) A.C. 369 : 74 L.J.P.C. 77 : 92 L.T. 738 : 91 T.L.R. 513, at p.372 their Lordships, after holding that the right of appeal to a superior tribunal is a substantive right, remarked:
To deprive a suit in a pending action of an appeal to a superior tribunal which belonged; to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect to manifested.
5. In that case the Judiciary Act, 1903, had taken away the right of appeal to His Majesty in Council and allowed an appeal instead to the High Court of Australia. Their Lordships held that nevertheless the appeal lay to them. In Delhi Cloth and General Mills Co., Ltd. v. Income-tax Commissioner Delhi their Lordships while affirming the principle laid down in Colonial Sugar Refining Co. Ltd. v. Irving (1905) A.C. 369 : 74 L.J.P.C. 77 : 92 L.T. 738 : 91 T.L.R. 513 at p.372 held that where there was no appeal provided when the order was passed, a new Act cannot betaken advantage of for the purpose of appeal unless there is a clear provision or necessary indication to that effect. In Ram Singh v. Shankar Dayal : AIR1928All437 a Fall Bench, of this Court applied the same rule in India. It was held that the new Tenancy Act would not affect the right of appeal under the old Tenancy Act so far as pending actions were concerned, and that an appeal being, a mere continuance of the original proceeding initialed by the filing of the plaint, the right to continue that proceeding could not be affected by a new Act unless it expressly said so. A Full Bench of the Madras High Court in Daivana yaka Iieddiyar v, Renukambal Animal : AIR1927Mad977 , have followed tin same rule.
6. In Ram Karan Sinqh v. Ram Dal Singh : AIR1931All635 it was laid down that where the old Agra Tenancy Act, under which the remedy Was to file a suit within 12 years in the civil Court, then even though the suit; was actually filed-after the coming, into force; of the new Tenancy Act under which the remedy is in the Revenue Court and can be resorted to within six months, the suit was governed by the old Tenancy Act, even,, though in this case both the forum and the: period of limitation were changed by: the new Act which had come into force before the institution of the suit though after the cause of action had arisen. In Alley Rasull Ali Khan v. Balkishen : AIR1934All709 already referred. to, a Bench of this Court: in a matter inter partes applied the same principle to the execution proceedings and held:
The suit out of which these proceedings have arisen was instituted on February 13, 1913, and the present proceedings have arisen out of the execution proceedings following the decree. According to the Full Bench decision all the law that was in force relating to appeals and the Court to which appeals lay at the date of institutes a suit he immediately raises a controversy because he cannot get a decree without establishing his allegations even if the defendant does not choose to appear. On the other hand, an execution proceeding will continue until a positive objection is raised by the judgment debtor or some other person who is entitled to raise an objection. It is the objection which gives rise to the controversy, and every objection is the subject of a different proceeding which results in an order which has the force of a decree. I am of opinion, therefore, that ordinarily a right of appeal arising out of proceedings on an objection taken to execution proceedings arises when the objection is filed in Court.
The answer is in the affiermative