Skip to content


Anund Chunder Roy Vs. Nitai Bhoomij - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal429
AppellantAnund Chunder Roy
RespondentNitai Bhoomij
Cases ReferredHurrosundari Dabi v. Bhojohari Das Manji L.R.
Excerpt:
appeal - appeal newly given by law--proceedings instituted prior to change in procedure--appeal from order under section 312, civil procedure code (act xiv of 1882)--act vii of 1888, sections 55 and 56. - .....into force; and, therefore, when the order was made, no appeal lay from it to the court of the deputy commissioner.3. act vii of 1888 came into force on july 1st, 1888. by that enactment an order made under section 312 is made appealable to the court, to which an appeal would lie from the decree in the suit in relation to which such order was made. in the present case such court would be that of the deputy commissioner.4. after the 1st july, an appeal was presented to the deputy commissioner from the order of june 7th. the deputy commissioner rejected it, holding that the new enactment did not apply, as the suit in which the order was made was instituted under the act of 1882, under which no such appeal was allowed to his court; that, therefore, the old law governed the matter, and.....
Judgment:

Pigot and Beverley, JJ.

1. In this case an order under the second paragraph of Section 312 of the Civil Procedure Code, setting aside a sale on the ground of a material irregularity, was made by the Munsif of Purulia.

2. The order was made on the 7th June 1888, before Act VII of 1888 came into force; and, therefore, when the order was made, no appeal lay from it to the Court of the Deputy Commissioner.

3. Act VII of 1888 came into force on July 1st, 1888. By that enactment an order made under Section 312 is made appealable to the Court, to which an appeal would lie from the decree in the suit in relation to which such order was made. In the present case such Court would be that of the Deputy Commissioner.

4. After the 1st July, an appeal was presented to the Deputy Commissioner from the order of June 7th. The Deputy Commissioner rejected it, holding that the new enactment did not apply, as the suit in which the order was made was instituted under the Act of 1882, under which no such appeal was allowed to his Court; that, therefore, the old law governed the matter, and that he had no jurisdiction to hear the appeal.

5. From that order this appeal is brought. The decision appealed from is founded on the decision of this Court in Hurrosundari Dabi v. Bhojohari Das Manji L.R. 13 Cal. 86, in which it was held that no appeal lay against a decree in a suit instituted under the old Bengal Rent Act 'VIII of 1869, although the appeal was presented after the new Act VIII of 1885 came into force, by which Act (it was assumed for the purpose of the argument) an appeal was given.

6. That case was decided upon the construction of Section 6 of the General Clauses Act. The appeal, if it was given, was given by the Act of 1885, which repealed the Act of 1869; and it was held, that as the repeal of the Act of 1869 could not affect proceedings commenced before the repealing Act came into operation, and as the word 'proceedings' in the General Clauses Act includes an appeal against a decree made before the passing of the repealing Act, the appeal did not lie.

7. In the present case, the question does not arise in respect of the provisions of a repealing Act. So far as the Sections 55 and 56 of Act VII of 1888 affect the present proceedings, they do so, not by repealing the former Act, but by adding to its provisions an appeal in a case in which the former Act did not allow one. They advance the remedy of the subject in this particular respect. We do not think, therefore, that the General Clauses Act applies.

8. That being so the general principle of law is applicable, that an appeal newly given by law is made applicable to proceedings instituted before that change in procedure is made. That principle is contravened by the General Clauses Act (whether intentionally or not) in cases where the appeal is conferred by means of the operation of the repeal of an existing Act. But that effect of the General Clauses Act must be limited to the cases strictly covered by its provisions. The present is not such a case. We hold, therefore, that the appeal lies to the Court of the Deputy Commissioner. We make the rule absolute.

9. We set aside the order of the Deputy Commissioner, and direct him to entertain the appeal.

10. The costs of this Rule will be disposed of by the Deputy Commissioner on the hearing of the appeal we now direct him to entertain. We assess the hearing fee on each side at three gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //