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V.S. Mani Iyer and ors. Vs. Azhakan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 748 of 1968
Judge
Reported inAIR1972Ker135
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantV.S. Mani Iyer and ors.
RespondentAzhakan and anr.
Appellant Advocate T.S. Venkiteswara Iyer,; R.C. Plappally and; P.K. Balasu
Respondent Advocate A.P. Chandrasekharan, Adv.
DispositionAppeal allowed
Cases ReferredSadhucharan v. Sudarshan
Excerpt:
civil - maintainability - section 47 of code of civil procedure, 1908 - decree-holder purchaser who for realisation of decree amount brings property of judgment-debtor for sale and purchases it himself - whether decree-holder has right of suit besides right to seek delivery by application in execution - trial court found suit not barred by section 47 - trial court held plaintiff entitled to decree - suit maintainable - order of trial court upheld. - - --the rule that enactments in a statute are generally to be construed to be prospective and intended to regulate the future conduct of persons, is deeply founded in good sense and strict justice, and it has been repeatedly laid down that in the absence of clear words to that effect, a statute will not be construed so as to take away a.....p. subramonian poti, j. 1. section 47 of the code of civil procedure was amended by the civil p. c. (amendment) act 1956 with effect from 1-1-1957 by incorporating the words 'and a purchaser at a sale in execution of the decree' in the explanation to that section and thereafter the explanation read thus: 'for the purpose of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit'.2. the question whether a decree-holder purchaser, who for realisation of the decree amount brings the property of the judgment-debtor for sale and purchases it himself, has. besides the right to seek delivery by an application in execution, the right of suit also is a question on which.....
Judgment:

P. Subramonian Poti, J.

1. Section 47 of the Code of Civil Procedure was amended by the Civil P. C. (Amendment) Act 1956 With effect from 1-1-1957 by incorporating the words 'and a purchaser at a sale in execution of the decree' in the Explanation to that section and thereafter the Explanation read thus:

'For the purpose of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit'.

2. The question whether a decree-holder purchaser, who for realisation of the decree amount brings the property of the judgment-debtor for sale and purchases it himself, has. besides the right to seek delivery by an application in execution, the right of suit also is a question on which the view taken by the High Courts in India has not been uniform. But so far as this court is concerned the latest pronouncement of a Division Bench of this Court in Lakshmanan Pillai v. Subhashini, 1971 Ker LT 850 binds me and therefore I need not go into that question. In that decision it was held:

'Section 47 is in the statute book for a purpose viz., to prevent multiplicity of suits, and the way the section has been interpreted by the Madras High Court, the Travancore-Cochin High Court and the other High Courts which take the same view, is only in conformity with that intention. If the other view, the view of the Patna High Court, that the execution, discharge and satisfaction of the decree come to an end by the issue of a sale certificate is accepted, the purpose of this section will be lost to a considerable extent. Moreover, the view of the Madras High Court has been there for over eighty years, because Patanjall Sastri. J. has stated in Thondam Anna-malai Mudali v. Tiruttani Ramasami Mudali. AIR 1941 Mad 161 (FB) that that view had already been accepted for over 50 years. That was in 1941; and another 30 years have passed since then. To upset this procedural law at this stage will create more injustice than justice. And this is therefore an eminently fit case for applying the principle of stare decisis'.

3. In the case of a stranger auction purchaser the position prior to the amendment to Section 47 of the Code of Civil Procedure adverted to earlier was that such an auction purchaser had a right of suit. Not that on this there is no controversy here. But the preponderance of view in the decisions of the High Courts in India is that when the purchaseris a stranger the right of suit was available to him. The decisions on this question are collected at the footnote in the A. I. R. Commentaries to the Code of Civil Procedure (7th Edn.) Section 47, Note 19. page 750. Noting these decisions the commentator states:

'All the Courts were agreed that, where the purchaser was a stranger he could apart from the summary remedy provided by Order 21, Rules 95 to 102, agitate the matter in a separate suit but that if he availed himself of such summary remedy no appeal would lie from an order passed in such proceedings. The reason was that if the purchaser was not at all a representative of the judgment-debtor fas had been held in some decisions referred to above), the question was not one between the parties; and. even if he was representative of the judgment-debtor still, the question was one between the judgment-debtor and his representative, and consequently was not one 'between the parties'. (See Note 5). But when the decree-holder was the purchaser, the question was one 'between the parties'. Now. after the amendment, it is clear that whether the auction-purchaser is a stranger or the decree-holder, the question would be one between the parties to the suit'.

Therefore the position is that if the case arose for decision on the basis of the law as it stood before 1-1-1957. In the case of a decree-holder auction purchaser a suit for recovery of possession of the property purchased in court auction would not lie as the matter would be one within the scope of Section 47 of the Code of Civil Procedure while in the case of a stranger auction purchaser such a suit would He. Because of the amendment any purchaser at the auction in execution of a decree becomes a party and is considered to be a party to the decree for the purpose of applying Section 47 so much so that his position would be same as that of the decree-holder auction purchaser. If the decree-holder auction purchaser could not have filed a suit to recover property purchased in execution of a decree but was to take recourse only to recovery through the execution court the same would be the case with regard to the stranger auction purchaser.

4. In the case before me a stranger auction purchaser purchased property in execution of a decree and that sale was confirmed on 17-9-1956 before the amendment to Section 47 came into force. If at that time he had a right to file a suit to recover possession and was not obliged to seek recovery in execution proceedings, the question is whether by reason of the amendment he lost the right of suit.

5. The suit was decreed by the trial court which held that the suit would notbe barred by Section 47 of the Code of Civil Procedure. The appellate court held otherwise and dismissed the suit. Therefore the question has now to be gone into in this second appeal which is at the instance of plaintiffs 1 and 3 to 7 in the suit.

6. The controversy that has to be resolved in this appeal is not simple. On the question for decision here, my notice has been drawn only to a decision of the Orissa High Court to which I may refer in this Judgment in due course. The plaintiffs consider that the right of suit is a vested right and therefore when the sale is confirmed prior to the amendment of Explanation to Section 47 of the Code of Civil Procedure the right of suit had accrued which unless there are express words in the amendment taking away such right will survive notwithstanding the amendment. Of course, it cannot be disputed that there are no express words in the amendment to Section 47 which could be said to have taken away the vested right if there was any which would survive the amendment. It necessarily leads to the question as to what exactly is the character of the right which was available to the stranger auction-purchaser and whether it would survive the amendment.

7. The Priw Council in Lala Soni Rama v. Kanhaiva Lal. (1913) 19 Ind Cas 291 (PC) expressed the view that the law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding unless there is a distinct provision to the contrary. The suit in which this question arose was instituted in 1907 and was for redemption of a mortgage. The defence of limitation was taken up in the suit. The plaintiff sought to meet this plea by relying on certain acknowledgments. The mortgage was executed at a time when the Limitation Act XIV of 1859 was in force. But the suit was instituted after Act XV of 1877 replaced the earlier enactment. The question was whether the plaintiff could claim the benefit of the law as to acknowledgments contained in the earlier Act. It is this decision that has been quoted time and again in considering whether a particular statute has to be considered as prospective or as retrospective. A Full Bench of five judges of the High Court of Calcutta said in Gopeshwar Pal v. Jiban Chandra. 24 Ind Cas 37 = (AIR 1914 Cal 806) (FB):--

'It is an established axiom of construction that though procedure may be regulated by the Act for the time being in force still the intention to take away a vested right without compensation or any saving is not to be imputed to the Legislature unless it be expressed in unequivocal terms'.

Their Lordships of the Calcutta High Court relied on Commr. of Public Works v. Logan, 1903 AC 355 in support of this view. The case before the Full Bench concerned the effect of an amendment to Article 3, Part I, Schedule III of the Bengal Tenancy Act 1885. Before amendment that Article provided that the period of limitation to recover possession of land claimed by the plaintiff as an occupancy-raiyat was two years from the date of dispossession. But by the amendment 'a raiyat or an under-raiyat' were substituted in Article 3 in the place of the words 'an occupancy-raiyat'. The amendment came into force on 11th of May 1907 and the suit was instituted in July 1908. The suit was not by an occupancy-raiyat but by one who came within the amended provision. But for the amendment he had still time to sue. But if the amendment was operative the period of two years from the date of dispossession having expired even before the amendment came into force he would have no right to sue. The question arose whether in these circumstances the right to sue when the plaintiff had a period of 12 years prior to the amendment, did not survive by reason of the amendment which restricted the period to two years. Fletchor, J. took the view that the amendment being of an enactment relating solely to procedure, applies only to suit instituted after the amendment came into operation notwithstanding that the cause of action arose prior to the amendment, while Chatterjea, J. held a contrary view and therefore the case was referred to a Full Bench constituted of five Judges of that High Court. The court was of the view that the plaintiff had. at the time when the amending Act was passed, a vested right of suit and to read the amendment as operating retrospectively would deprive of the right of suit so vested in the plaintiff at the date of the passing of the amendment. The Full Bench conceived two types of cases, one where even after the amendment the operation of the amendment would not destroy the rights of the plaintiff and the other where such rights would be destroyed. If the period of two years available in case the amendment was to apply had not expired, the position, according to the Full Bench, might possibly be different. But where the period within which suit had to be filed if the amendment was to apply had already expired on the date of the amendment it would mean that the right of suit which was otherwise available was taken away by the amendment and this would result in not any regulation but confiscation. The case before the Privy Council in (1913) 19 Ind Cas 281 (PC) was referred to in this connection and the Full Bench notic-ed that it was not a case where the am-endment would destroy the rights of the plaintiff. The court said thus:

'There are thus two positions, where in accordance with its provisions a suit could be brought after the passing of the amendment, it may be that the amendment would apply; but where it could not, then the amendment would have no application. The fact in (1913) 19 Ind Cas 291 (PC) did not involve the second of those positions, and we. therefore, hold t.iat the decision of the majority in Mum'uri Bibi v. Akkel Mohmud. so far as it relates to that position, has not been affected by the iudgment of Privy Council in (1913) 19 Ind Cas 291 (PC) though it may perhaps be affected if and so far as it lays down a similar rule for suits within the first of the two positions. This, however, is a point not before us and on it. therefore, we do not express any definite opinion',

8. The Calcutta High Court in a later decision in Promothanath Pal v. Sourav Dasi. 58 Ind Cas 327 = (AIR 1920 Cal 435) followed this rule. Under Section 66 of the Code of Civil Procedure 1908 a suit against a certified purchaser in execution sale and his assignees by a person claiming to be the real owner is barred. The Code of Civil Procedure 1908 replaced the Code of Civil Procedure of 1882 whereunder the corresponding section was 317. That was of more limited application and barred a suit only against a certified purchaser. Therefore as the Code then stood as against an as-signee of a certified purchaser a suit by a person claiming to be the real owner would lie. In the case the court had to deal with there the purchase at the sale in execution was in 1903 and it was confirmed in 1906. The plaintiff's case was that he purchased the property in dispute in the name of his son who was defendant No. 1 whose name appeared as recorded purchaser. The question for decision was whether the suit having been instituted after the Code of 1908 came into force Section 66 of the Code operated as a bar to the maintainability of the suit. The court took the view that to apply Section 66 of the Code of 1908 would be to give retrospective operation to that provision and that would be opposed to the canons of interpretation of statutes. The court observed thus:--

'The rule that enactments in a Statute are generally to be construed to be prospective and intended to regulate the future conduct of persons, is deeply founded in good sense and strict justice, and it has been repeatedly laid down that in the absence of clear words to that effect, a Statute will not be construed so as to take away a vested right of action acquired before it was passed'.

Countering a contention urged before Their Lordships that Section 66 of theCode of 1908 embodies merely a rule of procedure and as no litigant can have vested interest in the course of procedure, the new statute cannot be said to be inoperative, the learned Judges said:--

'..... this contention is basedupon a narrow and superficial view of the true effect of Section 66 of the Code of 1908 and Section 317 of the Code of 1882. Each of these provisions no doubt finds a place in a code of procedure, but each imposes in essence a serious restriction upon the title of the real purchaser at the execution sale'.

8-A. Therefore the plaintiff in the suit succeeded as in essence it was found that his right had been affected and the question was not merely a matter of procedure. Later the Calcutta High Court had again to consider the same question in a case where the scope of Section 66 of the Code of Civil Procedure 1908 was called into question once again. Pal. J. In that decision fSarat Chandra v. Santosh Kumar. AIR 1944 Cal 1451 reiterated the position. Earlier in Aiit Singh v. Bhaga-bati Charan, AIR 1922 Cal 491 the Calcutta High Court took the view that if the application of the provisions of an amending Act makes it impossible to exercise a vested right of suit, the Act should be construed as not being applicable to such cases. That concerned the time within which the legal representatives of the deceased applicant had to apply to implead under Rule 3 of Order 22 of the Code of Civil Procedure read with Rule 2. The penalty for non-compliance was abatement of the appeal. On the date of death of the appellant in that case the period of limitation make an application for that purpose was six months from such date. In the meanwhile, before that period expired. Act 26 of 1920 was passed by the Indian Legislative Council and it received the assent of the Governor-General on 2nd September, 1920. The result was that the period of limitation was reduced to 90 days. Under the law as it stood on the date of death of the appellant namely 19th November, 1920 a period of six months was available. The amendment which, though assented to by the Governor-General on 2-9-1920 came into force only on 1st January, 1921. curtailed that period. But the period of 90 days had not expired on that date. Notwithstanding this the court took the view that the period of six months was available. It may be noticed here that unlike in the case of 24 Ind Cas 37 --(AIR 1914 Cal 806) (FB) it was not a case where the amending Act made it impossible to exercise the right available under the earlier law but only curtailed the period within which such exercise should be made. Nevertheless it was held that the right under the earlier law would survive, though. I must observe, thejudgment did not indicate any reason for this view excepting by way of reference to the decision of the Judicial Committee in Colonial Sugar Refining Co. v. Irving, 1905 AC 369. The court took the view that the decision of the Judicial Committee 'militates against the retrospective operation of statutes in cases of this description, to the detriment of an existing right of suit or appeal'.

9. Jessel M. R. in (1875) 1 Ch D 48 (In re Joseph Suche & Co. Ltd.) expressed this rule in the following terms:

'I so decide because it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights ......'

10. In Jackson v. Woolley, (1858) 120 ER 292. Williams. J. quoting Lord Coke's well known canon 'Nova con-stitutio fururish formam imponere debet, non praeteritis' said thus:--

'That is the ordinary rule as to the interpretation of all legislative enactments, and is to be observed unless there be something in the terms of a particular enactment to prevent its operation'.

11. This necessarily leads me to consider the question whether the right to institute a suit is a vested right. The question whether the right to institute an appeal is a vested right has arisen in several cases and the position seems to be fairly well settled now. Dealing with a case of amendment of Section 22(1) of the Central Province and Berar Sales-tax Act 1947 which necessitates proof of payment of tax in respect of an assessment against which appeal had been preferred, as a condition precedent for entertaining the appeal under the earlier law it was sufficient if the admitted tax was paid S. R. Das. J. said in the decision in H. K. Dada (India) Ltd. v. State of Madhya Pradesh, AIR 1953 SC 221 thus:--

'The above decisions quite firmly establish and our decisions in Janardan Reddy v. The State. AIR 1951 SC 124 and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd.. AIR 1952 SC 409 uphold the principle that a right of appeal is not merely a matter of procedure. It is a ' matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in. and before a decision is given by. Ihe inferior Court. In the language of Jenkins. C. J. In Nana v. Sheku, (1908) 10 Bom LR 330 to disturban existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intend-ment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly mainfested by express words or necessary implication'.

12. In this connection I may refer in brief to the facts in 1905 AC 369. The Judiciary Act 1903 which received the Royal Assent on 25-8-1903, a few days before the Supreme Court delivered the judgment took away the right of appeal from the Supreme Court and provided for an appeal to the High Court of Australia. The appellants instituted the appeal to the Privy Council with leave of the Supreme Court and a preliminary point was taken before the Privy Council that the appeal be dismissed as in view of the Judiciary Act 1903 no appeal lay to it. Lord Macnaghten who delivered the judgment of the Privy Council said thus:--

'To deprive a suit or 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 is manifested'.

Of course it is for the legislature to provide, if it feels so. that the right of appeal or other vested right would not survive if the new law comes into force. We are only considering what the consequences would be in cases where such an intention is not evident.

13. Supreme Court in the decision to which I have adverted earlier referred to the decision in 1905 AC 369 and upheld the principle that the right of appeal is not a matter of procedure but is of substantive right.

14. The above view was reiterated by the Supreme Court in Garikapati v. Subbiah Choudhry. AIR 1957 SC 540. The question that arose there was whether in regard to a suit filed before the Constitution, the valuation of which was above Rs. 10,000/-. the right of appeal to the Federal Court which was then available was so available after the Constitution came into force. Under the law as it stood at the time of the appeal the valuation necessary for the appeal to the Supreme Court was Rs. 20,000/-. The court by a majority took the view that the institution of the suit carries with it the implication that all rights of appealthen in force are preserved to the parties thereto till the rest of the career of the suit. After referring to the decisions on the question, the Court formulated the following rules:--

'(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceed- . Ing.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter to superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be act-ually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the riling of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise'.

15. The question relevant here is whether a right of suit is also a vested right. I see no reason to hold otherwise. If a right of appeal which accrues to a person on the commencement of an action is a vested right, a right of the suit would all the more be considered as vested. A person is entitled to work out his remedies by resort to the court and if under the law in force a fight of approaching a court is available to a person that would necessarily be a substantive right and therefore would be available to such a person notwithstanding the change in law unless the right is taken away expressly or by implication. In this context I may advert to the decision of the Federal Court in Venugopala v. Krishnaswami, AIR 1943 FC 24. A suit was instituted in British India in 1932. Some of the properties involved in the suit were situated in Burma. In 1937 Burma was separated from the rest of British India. The question arose whether in regard to the properties situated in Burma the court had jurisdiction to try the suit and whether the maintainability of the suit would be affected by the separation. On the question of jurisdiction the Federal Court took the view that it is not as if the legislature which passed the law separating Burma from the rest of British India could not havemade provision in the very same enactment regarding continuance of the trial of suits in regard to the properties situated in Burma. That being the case there was no want of lurisdiction. The further question was whether the right of suit was a vested right and therefore unless there be provision to the contrary must be deemed to continue. The judgment of the High Court against which the appeal had been taken to the Federal Court expressed the view that a right to continue a duly instituted suit was in the nature of a vested right and could not be held to have been taken away except by a clear indication of intention to that effect. Varadachariar, J. speaking for the Federal Court in the appeal said as follows:--

'It has on the other hand, been maintained that a right to obtain relief in a suit pending at the time when the repealing enactment comes into operation is itself in the nature of a substantive right. As we consider that the third ground of decision adopted by the High Court, namely, the principle of the ruling in 1905 AC 369 is sufficient to support the decision of the High Court we prefer to rest our decision on that ground. 1905 AC 369 was sought to be distinguished on behalf of the appellant on the ground that a right of appeal against a decree stands on a different footing from a right to continue a suit to its normal termination. This may be a difference in the facts, but we are unable to see any distinction in principle between the two cases. Their Lordships' pronouncement emphasises the limitation to be placed upon the rule, sometimes broadly stated, that all alterations in procedure are retrospective, unless there is some good reason to the contrary. In one sense, a right of appeal may be spoken to as a matter of procedure and it is usually provided for in Codes relating to procedure. But the decision recognises that that is not sufficient to make a legislative provision governing the right of appeal retrospective.

It will be noticed that in that case the judiciary Act was passed during the pendency of the action in the Court of first instance and their Lordships' decision recognised that from the date of the initiation of the act. the suitor had a right of appeal to a superior tribunal according to the state of the law as it stood at the time of the commencement of the proceeding. This necessarily involves the recognition of an equally valuable right that the proceedings should in due course be tried and disposed of by the tribunal before which it had been commenced. This principle that a statute should not be so interpreted as to take away an action which has been well commenced has been affirmed in various cases indiffering circumstances. In (1850) 9 CB 551. It was observed by Wilde. C. J. that--

'it must have been well known to both branches of the Legislature that strong and distinct words would be necessary to defeat a vested right to continue an action which has been well commenced (1875) 1 Ch D 48 and see also (1904) ILR 27 Mad 538 and (1909) ILR 32 Mad 140'.

16. It is now necessary to refer to two more decisions of the Supreme Court. Anant Gopal Sheorey v. State of Bombay. AIR 1958 SC 915 and State of Bombay v. S. G. Films Exchange, AIR 1960 SC 980. In the latter case the court took the view that an impairment of the right of appeal by placing a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment. Whether court-fee is payable in regard to the appeal on the basis of the law in force on the date of appeal or whether it is payable only on the basis of the law in force at the tune of institution of the suit was really the question. By the enhancement of the court-fee the right of appeal became more onerous and if the vested right of appeal involved a right that no new restriction should be imposed thereon naturally the levy of enhanced court-fee in the appeal would not be retrospective and that was what was held by the Supreme Court. But the decision in AIR 1958 SC 915 has. to some extent, apparently given rise to the controversy before me. Counsel for the contesting defendants would read that decision as departing from the rule laid down in the earlier decisions. But I do not see my way to agree with counsel. The Criminal Procedure Code was amended in 1955 which amendment came into force in 1956 incorporating Section 342-A therein enabling any person accused of an offence before a Criminal Court to be a witness for the defence. But that was not the case prior to the amendment. In the case of a prosecution commenced before the date the amendment came into force a plea was raised that the accused must be permitted to appear as a witness on his own behalf. This application was dismissed by the Magistrate before whom the trial was held. The High Court in revision confirmed this and the matter was taken to the Supreme Court. After stating the general principle applicable in such matters in these terms. 'No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending andif by any Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225, 1905 AC 369. In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective' the court proceeded to consider certain provisions of the amending Act. On the language of Section 116 of the Amending Act the Supreme Court held that Section 342-A was available to the appellant and could be invoked by him. Evidently in the decision in that case this court did not make a departure from the law laid down by the Supreme Court in its earlier decision and in fact as I have pointed out earlier the same view has been taken by the Supreme Court later. The change in law was made applicable in that case to the proceedings then pending only because construing the provisions of the amending Act it held that it would be so applicable. Of course as I have said earlier if the amending Act indicates any intention to apply the provisions in the amending Act to pending actions then of course the matter will have to be decided in accordance with the amending Act.

17. From a review of these decisions, it appears to me to be clear, that if a right of suit is available to a party under the law in force and subsequently the law is sought to be altered by amendment or by repeal and re-enactment or by any fresh legislation the right of suit so available to the party will not be affected unless expressly or by necessary intendment that is sought to be taken away by the new enactment. There is no such express provision in the amendment to Section 47 of the Code of Civil Procedure which would take away the right of suit available to the stranger auction purchaser. Nor is there anything which by necessary intendment may be said to impair such right. Therefore in spite of the alteration in the provision the right to sue survives and hence the suit in the present case must be considered as maintainable.

18. Earlier I referred to a decision of the Orissa High Court on this question. It took a view different from the view taken by me and therefore I may refer to this question in a little detail. In the case before the Orissa High Court in Sadhucharan v. Sudarshan, AIR 1965 Orissa 2 the auction purchaser had filed the suit in 1954 long before the amendment to the Explanation to Section 47 came into force. It was the continuance of the suit which was subiect-matter of the controversy there. The appellate court held in that case that the suit having been filed in 1954 the suitwill be governed by the procedure in force before the above amendment came into force. After referring to this fact R.K. Das, J. said thus :--

'Here, however, the learned appellate Court was wrong. After a series of decisions of the Supreme Court that the law of procedure operates restrospectively this point is no longer open to any doubt. In a case AIR 1958 SC 915 their Lordships held that no person has a vested right to any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. In view of this position of law the amended explanation applies to the case and the plaintiff-auction purchaser now becomes a party in an application under Section 47 of the C. P. C. It is also open to the Court under Sub-section (2) quoted above to convert a suit to a proceeding or a proceeding to a suit'. I may notice here that this is the only discussion on this question by the learned Judge. Apnarently the learned Judge has assumed that a right of suit is a procedural right and therefore must necessarily be affected by the change in the law. Reference has also been made to the decision of the Supreme Court in AIR 1958 SC 915 to which I have referred. It appears to me that notwithstanding the fact that institution of appeals and suits find a place in the Code of Civil Procedure, the right to institute such suits and appeals are substantive rights and therefore the rule that procedural law operates retrospectively should have its own limitations when the question for consideration is whether a right of suit or right of appeal is affected by the change in law. I must therefore, with due respect, disagree with the view taken by the learned Judge in the Orissa decision.

19. The main question urged before me is the question of maintainability of the suit. The trial court had considered the other issues raised in the case and found that plaintiff was entitled to a decree. The appeal before the court below was only by the 1st defendant who challenged the finding that he was not a tenant. On that the findings are concurrent. Therefore no other question arises for decision.

I, therefore, set aside the decree of the court below and restore the decree of the trial court. In the circumstances of the case, I think this is a case whereI should direct both parties to suffer costs in this second appeal.


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