Bhichuk Singh And Ors. vs Nageshar Nath And Ors. on 28 January, 1879

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Allahabad High Court
Bhichuk Singh And Ors. vs Nageshar Nath And Ors. on 28 January, 1879
Equivalent citations: (1880) ILR 2 All 112
Author: Turner
Bench: Turner, Oldfield


Turner, J.

1. I cannot say that, if the point raised in this case had come before the Court in the absence of authority, I should not have been disposed to hold that the language of Section 27 of Act XXIII of 1861 prohibited a special appeal in suits of the nature triable by Courts of Small Causes instituted prior to the passing of Act XLIII of 1860. It appears to me that, on a strict construction of the terms of Section 1 of that Act and of the analogous provisions of Section 27 of Act XXIII of 1861, it would be held that the language of the Acts was prospective and applied to suits which should be thereafter instituted rather than to suits which had been already instituted and determined.(So held in Bholanath Datt v. Mokadeb Sheet 3 W.R. Mis. 19. But seeing that it has been ruled by a Full Bench of the High Court of Calcutta * that the terms on which the appellant relies are merely words of description and do not relate to the time of institution, for such I take it is the effect of the decision, and seeing also that the cases must be few in which the point can arise, for all doubt is removed by the language of the amended Code, I do not consider myself justified in unsettling the law as it has been settled by that decision, and consequently agree that this Court had not jurisdiction to hear the appeal, that the review of judgment must be allowed, and the appeal dismissed, but as the point was not taken at the hearing of the appeal, I would order that each party should bear his own costs in this Court.

Oldfield, J.

2. The decree which was in execution in this case is dated 9th May 184.3. The first Court disallowed execution on the ground that it was barred by limitation. On regular appeal the Judge affirmed that order. A special appeal was admitted by this Court, and we reversed the orders of the Courts below. It is now pleaded, by way of review of judgment, that there was no special appeal with reference to the provisions of Section 27 of Act XXIII of 1861. There is no doubt that the suit out of which the execution proceedings arose is a suit of the nature cognizable in Courts of Small Causes, and that there will be no special appeal if the law of Section 27 of Act XXIII of 1861 is applicable to this case, but it is urged that it does not apply since the suit was instituted before the passing of the Act.

3. In my opinion the Act does apply, since the order in regular appeal was passed after Act XXIII of 1861 was enacted, and the terms of Section 27 are explicit, that “no special appeal shall lie from any decision or order which shall be passed on regular appeal after the passing of this Act in any suit of the nature cognizable in Courts of Small Causes.” The order being passed after the Act was passed there is no question of giving retrospective effect to the Act. Nor can I think, as suggested, that the words in the concluding part of the section when the debt, damage, or demand for which the original suit shall be instituted” were meant to imply that the Act only operates on decrees or orders made in suits to be instituted after the Act came into force. I cannot understand why the Legislature should have so intended, for though a suit may have been instituted before the Act was passed no right of special appeal would accrue, so the Act cannot be said to operate unjustly in taking away by retrospective action any right of appeal already accrued, when it is made to apply to decrees or orders passed after it came into force. The provisions of the new Civil Procedure Code may not be applicable for deciding this case, but it may be noticed that the provisions of Section 586 * of Act X of 1877 admit of no doubt on the point, and they were presumably intended to re-enact the old law on the point, and the view I take is in accordance with a Full Bench of the Calcutta Court 12 B.L.R. 224 : 14 W.E.F.B.30.

4. On the above view of the law, I am of opinion that this Court had not jurisdiction to hear the appeal, and I allow the review of judgment and dismiss the appeal. Each party should pay his own costs in this Court.

*See Soorjo Coomar Surma Roy v. Krishto Coomar Chawdhry 12 B.L.R. 224 : 14 W. R.P.B. 30.

*No second appeal in certain suits.

[Section 586 :–No second appeal shall lie in any suit of the nature cognizable in Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five hundred rupees.]

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