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Asikannessa Bibi and ors. Vs. Dwijendra Krishna Dutta and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1931Cal92a,129Ind.Cas.878
AppellantAsikannessa Bibi and ors.
RespondentDwijendra Krishna Dutta and ors.
Excerpt:
- .....the order of dismissal the petitioners wanted to file an appeal before the district judge, but the learned district judge refused to admit the appeal on the ground that the petitioners had not deposited the decretal money. it was against this order of the learned district judge that the petitioners obtained the present rule.2. if the proviso under section 174(5), ben. ten. act, was applicable to the present case there can be no doubt that the learned district judge was perfectly correct in refusing to admit the appeal, the petitioners not having deposited the decretal money. but the question is whether the proviso under the subsection can be said to apply to the present case. the new amendment of section 174 relating to the deposit of the decretal money came into force in 1929 long after.....
Judgment:

Mallik, J.

1. The facts which have given rise to the present rule were briefly these: On 22nd August 1927 there was an application made by the petitioners for setting aside a sale under Order 21, Rule 90, Civil P.C. This application was dismissed on 22nd June 1929. Against the order of dismissal the petitioners wanted to file an appeal before the District Judge, but the learned District Judge refused to admit the appeal on the ground that the petitioners had not deposited the decretal money. It was against this order of the learned District Judge that the petitioners obtained the present rule.

2. If the proviso under Section 174(5), Ben. Ten. Act, was applicable to the present case there can be no doubt that the learned District Judge was perfectly correct in refusing to admit the appeal, the petitioners not having deposited the decretal money. But the question is whether the proviso under the subsection can be said to apply to the present case. The new amendment of Section 174 relating to the deposit of the decretal money came into force in 1929 long after the application under Order 21, Rule 90 had been made. The point that would arise for consideration therefore would be whether this new amendment can be said to have any retrospective effect. I am inclined to think that it cannot. Maxwell in his Treatise on the Interpretation of Statutes (7th Edn. p. 187) says:

Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed to be intended not to have a retrospective operation.

3. There can be no doubt that before the new amendment came into operation the petitioners had a vested right, the right to appeal, and there can be no doubt either that by the amending section not only were certain restrictions put on that vested right but a new obligation also was created upon the petitioners. That being so the new law as enacted under Section 174, Ben. Ten. Act could not in my judgment have any retrospective effect, and, in my opinion, the admission of the petitioners' appeal ought not to have been refused only because the petitioners had not fulfilled a certain obligation that was created upon them under the new amending Act.

4. The rule is accordingly made absolute with costs. One gold mohur.


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