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Narayanan Parameswara Panicker Vs. Karthiayani - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 709 of 1955
Judge
Reported inAIR1957Ker101
ActsCode of Civil Procedure (CPC) , 1908 - Sections 154
AppellantNarayanan Parameswara Panicker
RespondentKarthiayani
Appellant Advocate P. Govindan Nair, Adv.
Respondent Advocate K.C. Chacko, Adv.
DispositionAppeal allowed
Cases ReferredB)) (H) and Alley Rasul v. Balkishun
Excerpt:
- - 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'.following the decisions referred to above i hold that the appeal to the district court was competent, as the same has been disposed of on the preliminary objection, the decision has to be set aside......(28-3-1124). the application was dismissed by first court and the 4th defendant preferred an appeal to the district court. upholding a preliminary objection that the appeal was not competent the learned district judge dismissed the same and the 4th defendant has preferred this second appeal. the respondent was not present at the hearing.2. the only point arising for decision is whether the appeal in the lower appellate court was maintainable. the sale was conducted and the application for cancellation of the same was made at a time when the travancore civil courts act, ii of 1084, was in force. section 14(e) of the said act provided that appeals and second appeals would lie against orders passed by the court in execution of small cause decrees against immovable property in the same.....
Judgment:

T.K. Joseph, J.

1. This second appeal arises from an order in execution of the decree in a small cause suit. Immovable property was sold in execution and the 4th defendant applied for cancellation of the sale on 13-11-1948 (28-3-1124). The application was dismissed by first court and the 4th defendant preferred an appeal to the District Court. Upholding a preliminary objection that the appeal was not competent the learned District Judge dismissed the same and the 4th defendant has preferred this second appeal. The respondent was not present at the hearing.

2. The only point arising for decision is whether the appeal in the lower appellate court was maintainable. The sale was conducted and the application for cancellation of the same was made at a time when the Travancore Civil Courts Act, II of 1084, was in force. Section 14(e) of the said Act provided that appeals and second appeals would lie against orders passed by the court in execution of small cause decrees against immovable property in the same manner and to the same extent as if such orders had been passed in the exercise or the ordinary original jurisdiction of such court. This Act was repealed when the Travancore-Cochin Civil Courts Act, XXI of 1951, was enacted on 1-4-1951. The new Act did not contain a similar provision. As the application for cancellation of the sale was decided only after the new Act was passed, the learned District Judge held that the provisions of the Act read with Section 7 of Code of Civil Procedure which became appellate to this State on 1-4-1951 did not allow an appeal or second appeal from such orders. The question for decision, therefore, is whether the repeal of the Travancore Civil Courts Act of 1084 during the pendency of the proceedings for cancellation of the sale has the effect of depriving the parties of the right of appeal which was available to them until the date of passing of the new Act. The learned District Judge relied on the decisions in Mohammed v. Mohammed Rowther, 1946 Trav LR 675 (A); Padmanabhan Nadar v. Satyanesam (AIR 1952 Trav-C 357 (B); Pappathi Ammal v. Sivagannam Pillai, 1954 Ker LT 827: (AIR 1954 Trav-C 526) (FB) (C); and Mathews Kathanar v. Easus Kathanar, 1955 Ker LT 17: (AIR 1954 Trav-C 178 (FB)(D). These decisions dealt with only the the broad question whether procedural law is retrospective in its operation on pending actions. The question that arises in tin's case did not arise in any of these decisions. A similar question arose in Bhagvathi Piilai v. Sankara Pillai, 1953 Ker LT 557:(AIR 1954 Trav-C 125 (E). Immovable propetty was sold in that case in execution of a small cause decree. There was an application to set aside the sale which was dismissed by the execution court and when the matter came up in appeal to this court, the respondent raised a preliminary objection on identical grounds. This court held that the repeal of the old Act under which the party had a right of appeal had not the effect of depriving him of the same. Following the decision of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369 (F) and the decisions of Indian High Courts such as Daivanayaga Reddiar v. Renukambal Ammal ILR 1950 Mad 857; AIR 1927 Mad 977 (FB) (G); Ram Singha v. Shankar Dayal ILR 50 All 965: (AIR 1928 All 437 (FB)) (H) and Alley Rasul v. Balkishun AIR 1934 All 709 (I) it was held that the auction sale having taken place and the petition for cancellation having made before the law became changed, the right of appeal was not lost to the party under such circumstances. The following passage from the judgment of the Privy Council referred to above may with advantage be extracted:

'To deprive a suitor 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'.

Following the decisions referred to above I hold that the appeal to the District Court was competent, As the same has been disposed of on the preliminary objection, the decision has to be set aside. Accordingly, I set aside the decision of the lower appellate court and remand the case to that court for fresh disposal on the merits.

3. The second appeal is allowed but in thecircumstances I make no order as to costs


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