1. This is an application by the infant representative of the sole appellant in an appeal from original decree for leave to prosecute the appeal. The appellant died on the 19th November 1920. Thereupon the right accrued to the legal representative of the deceased to apply under Rule 3 of Order XXII of the Code read with Rule 11, subject to the penalty that, if such application was not made within the time limited by law, the appeal would abate under Sub-rule 2 of Rule 3. On the date of the death of the original appellant, Art 176 of the First Schedule to the limitation Act of 1908 provided that an application under that rule could be made within six months from the death of the deceased appellant; in other words, the requisite application could be made on or before the 19th May 1921. In the interval, before the expiry of this period, Act XXVI of 1920, called 'The Indian Limitation and the Code of Civil Procedure Amendment Act, 1920,' was passed by the Indian Legislative Council and received the assent of the Governor-General on the 2nd September 1920; but the Act did not come into force till the 1st January 1921. The result was, that the period of six months was reduced to 90 days. The question is, whether this affected the right. Which had accrued due on the 19th November 1920 to make an application within six months from that date. We are of opinion that the answer must be in the negative.
2. A similar question which arose in connection with the amendment of Article 31 of Schedule III of the Bengal Tenancy Act, came up for consideration in the case of Gopeshwar Pal v. Jiban Chandra 24 Ind. Cas. 1125 : 18 C.W.N. 804 : 19 C.L.J. 549 and it was pointed out that if the application of the provisions of an Amending Act makes it impossible to exercise a vested right of suit, the Act should be construed as not being applicable to such cases. This decision affirmed the view taken by the majority of the Court in Munjuri Bibiv. Akkel Mahmud 19 Ind. Cas. 793 : C.W.N. 889 : 17 C.L.J. 316 which, it was pointed out, had hot been affected by the judgment of the Judicial Committee in Soni Ram v. Kanhaiya Lal 19 Ind. Cas. 291 : 13 M.L.. 431 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.R. 489 : 35 A.277 : 25 M.L.J. 131 : 40 I.A 74 (P.C). On the other hand, the decision of the Judicial Committee in Colonial Sugar Refining Co. v. Irving (1905) A.C 369 : 74 L.J.p.C.771 92 L.T. 738 : 21 T.L.R. 513. Militates against the retrospective operation of Statues in cases of this description, to the detriment of an existing right of suit or appeal. We are consequently of opinion that the application is in time and must be granted.
3. This renders it unnecessary for us to deal with the question which was raised on behalf of the opposite party as to the applicability of Section 5 of the limitation Act to an application to set aside an abatement. The Rule is made absolute with costs, one gold mohur.