Mookerjee and Holmwood, JJ.
1. This is an application to review our judgment in the case of Satyabadi Behara v. Harabati (1907) I.L.R. 34 Calc. 223 ; 5 C.L.J. 192 by which the judgment of the District Judge was reversed and the decree of the Subordinate Judge restored. We are invited to review our judgment on two grounds namely, first, that it was not competent to this Court to entertain the appeal which lay, it is suggested, to the Court of the Judicial Commissioner of the Central Provinces, and, secondly, that the entire claim ought not to have been dismissed as barred by the principle of res judicata. The first of these points was not suggested when the appeal was originally heard; but as it raises a question of jurisdiction we have heard the learned vakil for the petitioner at full length. The second ground refers to a matter which is discussed in our judgment.
2. The facts so far as it is necessary to state them for the elucidation of the first point may be briefly outlined. The suit out of which the appeal arose was instituted in the Court of the Subordinate Judge of Sambalpur on the 7th December 1904. On the 8th September 1905, the claim was dismissed with costs. On the 17th October 1905, the plaintiff preferred an appeal to the District Judge of Sambalpur. On the 20th November 1905, the appeal was allowed, the decree of the first Court reversed, and the case remanded for trial on the merits. On the 20th February 1906, the defendants preferred the appeal to this Court, and it was heard by us on the 9th January 1907. On the 1st September 1905, the Governor-General in Council issued proclamation No. 2833 which declared and appointed that the district of Sambalpur shall cease to form part of the Central Provinces and shall be subject to and included within the limits of the Bengal Division of the Presidency of Fort William (Gazette of India, 2nd September 1905, Part I p. 636). Subsequently Act VII of 1905, called the Bengal and Assam Laws Act 1905, was passed by the Governor-General in Council. It received the assent of the Governor-General on the 29th September 1905, and came into force on the 16th October 1905. Section 2 of this Act provides that the proclamation referred to in the Preamble shall not be deemed to have effected any change in the territorial application of any enactment notwithstanding that such enactment may be expressed to apply or extend to the territories for the time being under a particular administration. Section 3 provides we quote only so much of it as applies to the case before us that all enactments which imme diately before the commencement were in force in the territory mentioned in Schedule C, that is, the Sambalpur district, shall in, their application to that territory be construed as if the references therein to the authorities mentioned in column 1 of Schedule D (which includes the Judicial Commissioner of the Central Provinces) were references to the authorities mentioned opposite thereto in column 2 of that schedule (that is to the High Court of judicature at Port William in Bengal). Section 5 provides that for the purpose of facilitating the application of enactments passed before the commencement of the Act, any Court may construe them with such alterations not affecting the substance as may be necessary or proper to adapt it to the matter before the Court. Section 6 provides that nothing in the Act shall affect any proceeding which at the commencement of the Act is pending in the territory mentioned in Schedule C, that is, the Sambalpur district, and every such proceeding shall be continued as if the Act had not been passed.
3. It is contended on behalf of the petitioner that the term 'proceeding' in Section 6 of Act VII of 1905 means a suit in all its stages from the date of its institution up to the date of its disposal in the highest Court of Appeal to which it may be taken under the provisions of the law, and in support of this proposition, reliance is placed upon the observations of Sir Richard Garth C.J. in Ranjit Singh v. Meherbah Koer (1878) I.L.R. 3 Calc. 663 in which he laid down with reference to Section 6 of the General Clauses Act (I of 1868) that the term 'proceeding' in that section included all proceedings in any suit from the date of its institution to its final disposal and therefore included proceedings in appeal. In our opinion, it is not necessary to consider whether the term 'proceeding' in Section 6 of Act VII of 1905 has the same meaning as was put-upon it by Sir Richard Garth in connection with Act I of 1868, nor is it necessary to refer to the authorities upon the true construction of Section 6 of Act I of 1868 many of which were analysed and classified by Mr. Justice Wilson in his judgment in the Pull Bench case of Deb Narain Dutt v. Narendra Krishna (1889) I.L.R. 16 Calc. 267. In the first place, Act I of 1868 is no longer in force; it has been replaced by Act X of 1897, Section 6 of which has obviously no application to the matter now in controversy. In the second place, from the dates we have given above, it is clear, that on the 16th October 1905 when Act VII of 1905 came into force, no appeal had been preferred and no proceeding can be imagined by any fiction to have been pending on that date. In the third place, if by a fiction, the suit be imagined to be pending after the decree of the first Court had been made and before an appeal had been preferred, and if consequently nothing in Act VII of 1905 was under Section 6 to affect the suit, the petitioner, as we shall presently show, would be quite as much out of Court as if the provisions of the Act were held to be applicable.
4. Assume, therefore, as the first alternative, that on the day Act VII of 1905 came into operation, there was no proceeding pending, and that consequently Section 6 does not exclude the application of the Act. What is the position of the parties? The Central Provinces Civil Courts Act (II of 1904) would be applicable with this modification that under Section 3 of Act VII of 1905 we are to substitute 'the High Court of Judicature at Fort William in Bengal' for 'the Judicial Commissioner of the Central Provinces.' Under Section 15 Clause (b) of Act II of 1904, the appeal from the decree of the Subordinate Judge in this case, would lie to the District Court as the value of the suit did not exceed Rs. 1,000. An appeal from the decree of the District Court would under Section 589 of the Civil Procedure Code lie to the High Court, that is, under Section 3 Clause (24) and Section 4 of the General Clauses Act of 1897, to the highest Civil Court of Appeal in that part of British India. By Section 3 of Act If of 1904, the highest Civil Court of Appeal in the Central Provinces is the Court of the Judicial Commissioner, and this in the light of Section 3 of Act VII of 1905 means that the High Court of Judicature at Fort William in Bengal is the highest Civil Court of Appeal for the Sambalpur District from the 16th October 1905. This view is also supported by Notification No 1363 of the Governor General in Council, dated the 1st September 1905 (Gazette of India, 2nd September 1905, Part I p. 637). It is conclusively established, therefore, that the appeal against the order of the District Judge in this case was rightly preferred to this Court and not to the Court of the Judicial Commissioner of the Central Provinces.
5. Assume next, as the second alternative, that Section 6 excluded the operation of Act VII of 1905 to this case, and consequently made inapplicable Section 2 of that Act which saves the territorial application of enactments in spite of the Proclamation. What is the position of the parties? From the date when the Proclamation became operative, that is from the 16th October 1905, the Central Provinces Civil Courts Act (II of 1904) would cease to have operation in Sambalpur and the provisions of the Bengal, North-Western Provinces and Assam Civil Courts Act of 1887 would forthwith apply. This is manifest from Section 1 Sub-section (2) of Act II of 1904 and of Act XII of 1887. Act II of 1904 extends to the territories for the time being under the administration of the Chief Commissioner of the Central Provinces, and similarly Act XII of 1887 extends to the territories for the time being respectively administered by the Lieutenant Governor of Bengal and other authorities specified in the Act The moment, therefore, by virtue of the Proclamation, the District of Sambalpur ceased to be part of the Central Provinces and became part of the territory administered by the Lieutenant Governor of Bengal, Act II of 1904 ceased to apply and Act XII of 1887 would come into operation. This court, therefore, would be the highest Court of Civil Appeal for the district of Sambalpur. In substance, therefore, the petitioner is between the horns of a dilemma. If Section 6 of Act VII of 1905 excludes the operation of the other provisions of the Act the Proclamation furnishes a complete answer to her contention. If, on the other hand, Section 6 has no application, Section 3 of the Act furnishes an effective answer to the argument advanced on her behalf. In either view of the matter, this Court had jurisdiction to hear the appeal. Reference was made by the learned vakil for the petitioner to Bengal Act IV of 1906, which came into force on the 1st January 1907; it is difficult to see how the provisions of that Act can possibly affect the competency of an appeal which had been preferred to this Court more than ten months before the Act came into force. The first ground on which. we are asked to review our judgment cannot consequently be sustained.
6. As regards the second ground urged in support of the application, it touches the merits of the case. It is urged by the learned vakii for the petitioner that assuming that the claim for mesne profits is barred by res judicata, it is barred only in respect of that portion which accrued between the date of tender which was improperly refused and the date of the decree in the previous suit, and that the plaintiff is therefore entitled to damages for the period which intervened between the date of decree and the date of delivery of possession In our opinion. there is no force in this contention. As was explained in our judgment, the previous suit was entirely misconceived; it was framed in substance as a suit for possession, whereas it ought to have been a suit for redemption under Section 92 of the Transfer of Property Act. If it had been so framed, an account would have been taken, as contemplated by that section, of whatever would be due to the defendant and payable by the plaintiff. The plaintiff would have been entitled upon satisfying the decree to be placed in possession of the mortgaged property under Section 93. No question of mesne profits therefore could possibly arise in respect of any period between the date of decree and the date of delivery of possession. The second ground upon which revew is sought cannot consequently be supported.
7. The result, therefore, is that the application must be refused.