1. The facts relating to the order in C.M.A. No. 166 of 1932, and in the other appeal in C.M.A. No. 167 of 1932 are similar and set out in the earlier part of the lower Court's order. The respondent in these appeals is the President of the Board of Commissioners for Hindu Religious Endowments, Madras. The lower Court passed orders dated 31st March 1931 allowing execution. Although the respondents in the petitions had notice of the execution petition they did not appear. The orders were therefore passed in their absence. The arguments of the appellants in these appeals in the lower Court were that the proceedings in which the execution applications were made were not execution proceedings properly so called being in respect of orders passed by the respondent Board assessing certain amounts as contributions payable by the appellants and the respondent Board sought to recover by way of execution under Section 70, Madras Hindu Religious Endowments Act (2 of 1927), and that therefore it was open to the appellants to object to the validity of those orders passed by the respondent Board and that the appellants were therefore entitled to have the lower Court's ex parte decree set aside on review.
2. The lower Court came to the conclusion that the proceedings under Section 70, Hindu Religious Endowments Act, were proceedings in execution of a decree and in this conclusion the lower Court was clearly right, and the lower Court declined the review the previous orders. It was contended before us that such a remedy is open to the appellants by reason of the new Rule 15, Order 9, Civil. P. C, in 1933 which makes the provisions of Section 5, Lim. Act (9 of 1908) applicable to the rule. The new rule having boon made in March 1933, was not therefore in force on the date when the lower Court passed its ex parte orders of 31st March 1931. It was held in Arunachlam v. Veerappa Chettiar 1931 Mad 656, by a Full Bench of five Judges of this High Court including myself that Order 9, Rule 13, Civil P. C, does not apply to ex parte decrees passed in execution proceedings and that the rule applies only to decrees passed in suits; and in the judgment of the Full Bench, which was delivered by myself, it is stated:
Although the facts of this case do not disclose that defendant 8 had suffered any real hardship, we are of the opinion that many cases may occur in execution proceedings where to prevent a judgment-debtor or a decree-holder having an application or petition restored under Order 9, Rull 13 may be a great hardship and immediate steps will be taken to frame a new rule making Order 9, applicable to such proceedings in execution.
3. And it was in consequence of this judgment that E. 15 was made. The position is therefore that on the date when the ex parte orders were passed the iremedy under Order 9, Rule 13, was not open to the appellants and they could not rely upon Section 5, Lim. Act (9 of 1908) and no appeal against those orders was filed. The appellant's applications being dated 15th August 1931, the lower Court's orders of 31st March 1931 had thus become final. It is nevertheless contended by Mr. B.T.M. Raghavachari in a very able argument that, although the amendment is not by express enactment stated to be of retrospective application, nevertheless since it deals merely with matters of procedure, it may be applied retrospectively. But this contention overlooks the rights which had been acquired by the respondent Board. They had obtained orders for execution of the decrees which had become final. They were entitled to have their decrees executed, no appeal having been presented against the orders in their favour. The [appellants seek to deprive the respondent Board of their rights which were in existence at the time of the amendment of Order 9, Rule 13. This, they are clearly 'not entitled to do; and the decision of the Privy Council in Delhi Cloth and General Mills Co. v. Incometax Commissioner, Delhi 1927 PC 242 is directly in point. On p. 290 their Lordships say:
But a further point remains. Is there under this section any appeal at all from an order of the High Court made before the Act of 1926 came into force?
The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in Colonial Sugar Refinig co. v. Irving (1905) AC 369 , where it is in effect laid down that while provisions of a Statute dealing merely with matters of procedure may properly unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the Statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which if applied retrospectively would deprive of their existing finality orders which, when the Statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders at the date when it came into force, it must be clearly so provided.
4. It was, however, further contended by the appellants that the amended Rule 13 was made during the pendency of these appeals to the High Court and that it therefore was incumbent on the High Court in appeal to apply the new law and reverse the lower Court's orders. A similar contention was raised in Sri Rajah Satrucherla v. Maharaja of Jeypore 1928 Mad 1194, but was negatived by Wallace and Madhavan Nair, JJ., who stated:
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 the 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.
5. I see no reason for differing from that decision. The appellant's contention on this point must therefore fail also, and it follows that these appeals must be dismissed. C.M.A. No. 166 of 1932 is dismissed with costs, and C.M.A. No. 167 of 1932 and C.R.Ps. Nos. 583 and 584 of 1932 are dismissed.
6. I agree.