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Hadibandhu Mohapatra Vs. Bhagaban Barik and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 5 of 1978
Judge
Reported inAIR1982Ori150; 53(1982)CLT428
ActsCode of Civil Procedure (CPC) , 1908 - Sections 102; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(3); General Clauses Act, 1897 - Sections 6
AppellantHadibandhu Mohapatra
RespondentBhagaban Barik and ors.
Appellant AdvocateS.C. Mohapatra, Adv.
Respondent AdvocateR.K. Mohapatra and ;A.N. Misra, Advs.
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........in the suit is rs. 1668.7. it is urged on behalf of the appellant that a right of appeal is a vested right which conies into existence at the very inception of the suit, and unless the amendment introduced by the amendment act of 1976 in section 102, c, p. c. is retrospective, the right to prefer the 2nd appeal, which became vested when the suit was filed, would not be affected.8. the question for consideration is whether the amendment introduced by the aforesaid act is retrospective in operation. in the absence of such retrospective operation the right of presenting a second appeal, which become vested at the date of institution of the suit, would not be affected by the limit being raised from rs. 1,000/- to rs. 3,000/-9. the provisions of law relevant to the preliminary objection.....
Judgment:

P.K. Mohanty, J.

1. The second appeal is by the plaintiff against a reversing decree,

2. The plaintiffs case was that the defendants are members of a Hindu joint family and defendant No. 1 as karta thereof took a loan of Rs. 1,000/- from him on 12-6-1968 agreeing to repay the same on demand together with interest at the rate of 12 p.c.p.a. and executed a document (Ext. 1) acknowledging receipt of the amount. On 8-4-1971, defendant No. 1 paid Rs. 10/- towards interest ofthe loan and has not paid the balance despite repeated demands,

3. The defendants denied the loan and contended that they are barbers of the village and the villagers had ill-feeling against them as they did not serve them properly. There was party faction in the village resulting in some litigation and ultimately the defendants agreed to serve the villagers and their thumb marks and signatures were taken on some blank papers by way of security, and the suit document has been manufactured on one of such blank papers for the purpose of this case.

4. The learned Munsif held that the suit document (Ext. 1) is genuine and that defendant No- 1 as the karta of the joint family incurred a loan of Rs. 1,000/-from the plaintiff and that all the defendants are liable to repay the same. On appeal, the learned Additional Subordinate Judge set aside the trial court's decree and dismissed the plaintiffs suit. One of the grounds taken by the learned Additional Subordinate Judge in dismissing the suit is that the plaintiff has not complied with the mandatory provisions of Section 18-B of the Orissa Money Lenders' Act. Aggrieved by this decision, the plaintiff has preferred this second appeal.

5. Mr. R. K. Mohapatra, the learned counsel appearing on behalf of the defendants-respondents raised a preliminary objection based on Section 102, C. P. C. His contention is that as the claim involved in the suit does not exceed Rupees 3,000/- no second appeal lies.

6. Section 102, C. P. C., as amended by the Code of Civil Procedure (Amendment) Act, 1976, prohibits a second appeal in any suit of the nature cognizable by courts of small causes when the amount or value of the subject-matter of the original suit does not exceed Rs. 3,000/-, The limit of Rs. 3,000/- was introduced in Section 102 by the Amending Act of 1976 which came into operation on 1-2-1977. The suit out of which the second appeal arises was instituted on 6-4-1974. The appeal before the lower Appellate Court was preferred on 30-7-1976 and was disposed of on 15-9-1977. The second appeal was preferred on 2-1-1978. It is not disputed that the suit is of the nature cognizable by courts of small causes. The claim involved in the suit is Rs. 1668.

7. It is urged on behalf of the appellant that a right of appeal is a vested right which conies into existence at the very inception of the suit, and unless the amendment introduced by the Amendment Act of 1976 in Section 102, C, P. C. is retrospective, the right to prefer the 2nd appeal, which became vested when the suit was filed, would not be affected.

8. The question for consideration is whether the amendment introduced by the aforesaid Act is retrospective in operation. In the absence of such retrospective operation the right of presenting a second appeal, which become vested at the date of institution of the suit, would not be affected by the limit being raised from Rs. 1,000/- to Rs. 3,000/-

9. The provisions of law relevant to the preliminary objection are contained in Section 97 of the Amendment Act, 1976 which, for ready reference, are reproduced below :

'97. Repeal and savings,--

(1) Any amendment made, or any provision inserted in the Principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed. (Sub-section (2) omitted as unnecessary).

(3) Save as otherwise provided in Sub-section (2), the provisions of the Principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.'

10. Sub-section (3) of Section 97 makes it clear that save as otherwise provided in Sub-section (2) the provisions of the Principal Act as amended in 1976, would be applicable to all suits, proceedings, appeals or applications pending at the commencement of the Act or instituted or filed thereafter notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement. This provision expressly takes away the right of appeal. It clearly indicates that the Legislature was conscious of the principle that rights and causes of action vested prior to the coming into force of an amending enactment are saved unless taken away expressly or by necessary implication. To meet this situation, Sub-section (3) of Section 97 has been enacted expressly taking awaythe vested right. The instant case is not covered by the specific savings made in Sub-section (2) of Section 97. It is, therefore, not possible to accept the argument advanced on behalf of the appellant that Section 97 (3) does not affect the vested right of appeal. The contention that Section 6 of the General Clauses Act still preserves the right of appeal is not acceptable.

Section 6 of the General Clauses Act itself provides 'unless a different intention appears, the repeal shall not affect any right, privilege or obligation or liability acquired or incurred under any enactment so repealed.' Since Sub-section (3) of Section 97 of the Amendment Act indicates a different intention, Section 6 of the General Clauses Act cannot be pressed into service. My conclusion, therefore is that the provisions of Section 102, C. P. C, as amended in 1976, are retrospective and the second appeal having been filed after the commencement of the Amendment Act of 1976 is not maintainable.

11. Mr. S. C. Mohapatra for the appellant has made an application that the second appeal may be converted into a revisional application under Section 115, C. P. C. if the second appeal is not maintainable. According to him, this is a case of illegal exercise of jurisdiction covered by Clause (c) of Section 115(1), C. P. C. I am, therefore, inclined to permit the appellant to convert the proceedings into a civil revision under Section 115, C. P. C.

12. Let the second appeal be convert-ed into a civil revision.


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