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Sri Rajah Satrucherla Sivaskandharaju Bahadur Garu and ors. Vs. Sri Sri Sri Ramachandra Deo Maharaja of Jaypur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad1194; 114Ind.Cas.823
AppellantSri Rajah Satrucherla Sivaskandharaju Bahadur Garu and ors.
RespondentSri Sri Sri Ramachandra Deo Maharaja of Jaypur and ors.
Cases ReferredQuilter v. Mapleson
Excerpt:
- - order issuing execution was perfectly correct and execution is going on under; to our mind this was clearly not a case of a mere alteration in the form of procedure, such as the present case is......the amendment is to have retrospective effect. of several cases quoted to us, the only one that requires notice is quilter v. mapleson [1883] 9 q.b.d. 672, and that was a case where the court of appeal applied, as under the conveyancing act it had discretion to do, that act for the purpose of relieving a lessee from forfeiture. to our mind this was clearly not a case of a mere alteration in the form of procedure, such as the present case is.3. it is urged further that the form of decree which the lower court passed contemplates a final decree before sale. it would be curious if the lower court had by the form of its decree anticipated an alteration in the law. in fact on the reading of para. 2 of the decree there is no reason apparent why an order for sale should not have been made.....
Judgment:

1. It is conceded in this appeal that the lower Court's order conformed to the procedure in force when it passed its order. It is argued that, since some months later the Agency rules were altered so as to render Order 34, Civil P.C., applicable to mortgage decrees, it is incumbent on this Court, in appeal to apply that law and reverse the lower Court's order. We are unable to accept this argument. The lower Court's; order issuing execution was perfectly correct and execution is going on under; authority of that correct order. We can see no ground for now ruling that the execution legally started has now somehow by a change in the processual law, which only affects the matter of initiation of the execution proceedings, become illegal. Further it appears to us that by the order of the lower Court the respondent has acquired a vested interest in having his decree realized under the procedure in force at the time.

2. The argument that because this appeal may be regarded for certain purposes as a continuation of the lower Court's proceedings and that we must therefore apply to it the amended procedure now in force does not seem to us tenable. It would involve this result that, 'on every alteration of processual law, all proceedings taken under the previous law within a period allowing of an appeal when the new law came into force, would be contrary to law. The mere statement of this result is sufficient to demonstrate that the argument cannot be sustained. We may note that the order under which the rules were amended does not say that the amendment is to have retrospective effect. Of several cases quoted to us, the only one that requires notice is Quilter v. Mapleson [1883] 9 Q.B.D. 672, and that was a case where the Court of appeal applied, as under the Conveyancing Act it had discretion to do, that Act for the purpose of relieving a lessee from forfeiture. To our mind this was clearly not a case of a mere alteration in the form of procedure, such as the present case is.

3. It is urged further that the form of decree which the lower Court passed contemplates a final decree before sale. It would be curious if the lower Court had by the form of its decree anticipated an alteration in the law. In fact on the reading of para. 2 of the decree there is no reason apparent why an order for sale should not have been made straightway and this is what has been done.

4. We see no reason to interfere and dismiss this appeal with costs.


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