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Hurrosundari Dabi Vs. Bhojohari Das Manji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal86
AppellantHurrosundari Dabi
RespondentBhojohari Das Manji
Cases ReferredThakur Pershad v. Ashan Ali I.L.R.
Excerpt:
second appeal - appeal to the high court--general clauses act (i of 1868), section 6--effect of repeal--proceedings--bengal rent act (viii of 1885), section 5. - wilson, j.1. the question raised in this case is, whether an appeal lies.2. the decree appealed against was a rent decree of such a character that under section 102 of the old beng. rent act (viii of 1869) no second appeal would lie to this court. after the date of that decree the new rent act (viii of 1885) was passed, and that act repealed section 102 of act viii of 1869, and substituted other provisions on the subject. and we may take it, for the purpose of the present point, that those provisions are such that the present appeal would not be excluded by them. the question whether this appeal lies or not depends on the construction of section 6 of the general clauses act (i of 1868). that section says : 'the repeal of any statute, act, or regulation shall not affect anything done, or.....
Judgment:

Wilson, J.

1. The question raised in this case is, whether an appeal lies.

2. The decree appealed against was a rent decree of such a character that under Section 102 of the old Beng. Rent Act (VIII of 1869) no second appeal would lie to this Court. After the date of that decree the new Rent Act (VIII of 1885) was passed, and that Act repealed Section 102 of Act VIII of 1869, and substituted other provisions on the subject. And we may take it, for the purpose of the present point, that those provisions are such that the present appeal would not be excluded by them. The question whether this appeal lies or not depends on the construction of Section 6 of the General Clauses Act (I of 1868). That section says : 'The repeal of any Statute, Act, or Regulation shall not affect anything done, or 'any offence committed, or any fine or penalty incurred, or any proceedings commenced before the repealing Act shall have come into operation.' The question is whether the words,' any proceedings commenced before the repealing Act shall have come into operation, 'include an appeal against a decree made before the passing of the repealing Act. If they do, the repealing Act cannot give an appeal in this case. We think that there is clear authority for saying that the word' proceedings 'in Section 6 of the General Clauses Act does include an appeal.

3. In the case of Mungal Pershad Dichit v. Girja Kant Lahiri I.L.R. 8 Cal. 51 a very similar question was before their Lordships in the Privy Council with regard to the construction of the Limitation Act (IX of 1871). By Section 1 of that Act nothing contained in certain portions of the Act was to apply to suits instituted before the 1st of April 1873; and it was held by their Lordships that applications for execution in suits instituted before the passing of that Act fell within those terms. Their Lordships said: 'It appears to their Lordships that a thing which applies to an application in a suit applies to the suit, and that an application for the execution of a decree is an application in the suit in which the decree was obtained. 'If an application for the execution of a decree in a suit is a proceeding in the suit, it would seem to follow that an appeal is also a proceeding in the suit; and the word 'proceeding' appears to be quite as wide a word as 'suit.' But on the point before us there are no less than three direct decisions.

4. In the case of Ratan Chand Shrichand v. Hanmantrav Shivbakas 6 Bom. H.C. 166 the question was raised in this way: There was an Act in force under which an appeal was given in certain cases. That Act was repealed, and on the date on which it was repealed the decree in question then had already been passed, but no appeal had been filed, and the question was, whether on the construction of Section 6 of the General Clauses Act, the word 'proceedings' in that section included an appeal, and whether therefore the appeal lay. The Court held that an appeal was a part of the 'proceedings' and therefore was not affected by the repealing Act.

5. The same view was taken by two Judges, Sir R. Garth, C.J., and Jackson, J., in a Full Bench of this Court, in Runjit Singh v. Meherban Koer I.L.R. 3 Cal. 662. And the same view was also taken by a Full Bench of the Allahabad High Court in the case of Thakur Pershad v. Ashan Ali I.L.R. 1 Al. 668.

6. These oases are on all fours with the present case, with this exception, that there an appeal was given under the repealed Act, and it was held that the repealing Act did not take away the appeal, Here the repealed Act excluded an appeal. It follows, on the same principle, that the repealing Act cannot give an appeal.

7. We hold therefore that no appeal lies in this case.

8. The appeal is dismissed with costs.


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