Mitter, (Officiating) C.J.
1. It appears that the appellants before us held a decree against certain persons, who are on the record styled the second party defendants, and in execution of that decree the property in dispute in this case was attached. The plaintiffs intervened under Section 246 of the Procedure Code of 1859, claiming to have the property in dispute released on the ground that it did not belong to the second party defendants, but to themselves. Their claim was disallowed by the Court executing the decree on the 15th of August 1877.
2. The present suit was brought on the 4th of March 1880 for the purpose of establishing the plaintiffs' title to the property in dispute, and for confirmation of their possession thereof. The object of the suit apparently was to obtain a declaration that the decree-holders were not entitled to sell this property in execution of their decree against the second party defendants.
3. The Court of First Instance dismissed the plaintiffs' suit as barred by limitation. It was of opinion that Article 11 of the 2nd schedule of the present Limitation Act applied to this suit, and that as it was not brought within one year from the 15th of August 1877, when the Execution Court disallowed the plaintiffs' claim under Section 246, it was barred.
4. There was also another question before that Court, and it arose in this way.
5. Before the present suit was brought, the plaintiffs had brought another suit for obtaining the same declaration, and while that suit was pending the principal defendant,--namely, the father of the appellants before us,--died. Thereupon, the plaintiffs applied for the substitution of the appellants in the place of their deceased father. The Court granted their application, and directed that a summons should issue to the appellants before us to appear on a day fixed by the Court to defend the suit; but the plaintiffs having failed to pay the costs required for the service of this summons the suit was dismissed.
6. With reference to this proceeding, the appellants contended before the Court of First Instance that the dismissal of the suit under such circumstances operated as a bar to the maintenance of the present suit.
7. On this point also the decision of the first Court was in favour of the appellants before us.
8. On appeal, the District Judge overruled both the pleas raised in the defence. He was of opinion that as the order of the 15th of August 1877 was not an order passed under Section 283 of Act X of 1877, Article 11 of Schedule ii of the Limitation Act did not apply.
9. As regards the other objection, the Judge held that the suit was not dismissed under the provisions of Section 371 of Act X of 1877, but was dismissed under the provisions of Section 97 of that Act; and as an order passed under Section 97 is no bar to a fresh suit, the District Judge was of opinion that the plaintiffs were entitled to maintain this suit.
10. Against this judgment the present appeal has been preferred.
11. We agree with the District Judge in the opinion expressed by him on both these points The Limitation Act must be. strictly construed. In this case there is no doubt that Act XV of 1877 would apply, because the present suit was brought more than two years after the passing of that Act. But then it must be shown that Article 11, which the Court of First Instance held barred the present suit, is really applicable. That article distinctly refers to an order passed under Section 283 of Act X of 1877, and as the order of the 15th of August 1877 was not an order passed under that section, the article in question cannot apply: and if Article 11 is not applicable, then Article 120, which gives six years as the period of limitation for all the other kinds of suits not elsewhere provided for in the Act, will apply; and if Article 120 applies then the suit is in time.
12. But it has been argued that if the order of the 15th of August 1877 is not to be considered as an order passed under Section 283 of Act X of 1877, then the plaintiffs are not entitled to maintain this suit at all, because Section 246, which gives to an unsuccessful party in a proceeding under it the right of instituting a suit to establish his title, was repealed by Section 3 of Act X of 1877, and there is no provision in that Act, nor in Section 61 of Act I of 1868, saving the existing rights of the parties.
13. Without expressing any opinion upon the question whether the repeal of an Act affects existing rights (and, as at present advised, I am disposed to think that, independently of Section 6 of Act I of 1868, the repealing of an Act would not affect rights already acquired), it seems to us that the contention of the learned pleader for the appellants is not valid.
14. If Section 246 of Act VIII of 1859 is to be considered as wholly repealed, then the learned pleader must establish that the present suit is barred by any of the provisions of Act X of 1877. The present suit is a suit of a civil nature, and Section 11 of Act X of 1877 says, that the Courts shall, subject to the. provisions contained in that Act, have jurisdiction to try all suits of a civil nature excepting suits the cognizance of which is barred by any enactment for the time being in force. The learned pleader must, therefore, make out that the cognizance of this suit is barred by any enactment now in force; but he has not been able to do so. We are, therefore, of opinion that there is no force in this contention.
15. Then, as to the question whether the order of dismissal passed in the former suit would not operate as a bar to the present suit, we entirely agree, in the view which the District Judge has taken of that order.
16. Section 371 of Act X of 1877 cannot apply. That section applies only to orders passed under the last paragraph of Section 368, and the second paragraph of Section 370. Under the last paragraph of Section 368 a suit abates, and under the last paragraph of Section 370 an order of dismissal may be passed when the circumstances mentioned in that section come into existence.
17. The order referred to, therefore, not having been passed under Section 371, the only other section under which it could have been passed is Section 97.
18. But supposing that Section 97 were not applicable if the order was not passed under Section 371, the cognizance of the present suit is not barred, because the order dismissing the suit was not an order disposing of it on the merits.
19. On all these grounds, we are of opinion that the decision of the lower Appellate Court is correct.
20. We dismiss the appeal with costs.
1[Section 6: 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.]
Matters done under an enactment before its repeal to be unaffected.