{"id":109430,"date":"1960-04-22T00:00:00","date_gmt":"1960-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-bombay-vs-supreme-general-films-exchange-on-22-april-1960"},"modified":"2016-05-15T03:08:34","modified_gmt":"2016-05-14T21:38:34","slug":"state-of-bombay-vs-supreme-general-films-exchange-on-22-april-1960","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-bombay-vs-supreme-general-films-exchange-on-22-april-1960","title":{"rendered":"State Of Bombay vs Supreme General Films Exchange … on 22 April, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Bombay vs Supreme General Films Exchange … on 22 April, 1960<\/div>\n
Equivalent citations: 1960 AIR 980, \t\t 1960 SCR (3) 640<\/div>\n
Author: S Das<\/div>\n
Bench: Das, S.K.<\/div>\n
           PETITIONER:\nSTATE OF BOMBAY\n\n\tVs.\n\nRESPONDENT:\nSUPREME GENERAL FILMS EXCHANGE LTD.(with connected appeal)\n\nDATE OF JUDGMENT:\n22\/04\/1960\n\nBENCH:\nDAS, S.K.\nBENCH:\nDAS, S.K.\nSARKAR, A.K.\nHIDAYATULLAH, M.\n\nCITATION:\n 1960 AIR  980\t\t  1960 SCR  (3) 640\n\n\nACT:\n       Court Fee-Amendment of statute enabling levy of higher court\n       fee-When\t retrospective--Suit instituted\t before\t amendment,\n       appeal field thereafter--Court fee on memorandum of  appeal-\n       Court  Fees  Act, 1870 (7 of 1870), ss. 4, 6, Sch.  1,  Art.\n       1--Court\t Fees  (Bombay\tAmendment) Act, 1954  (Bom.  12\t of\n       1954).\n\n\n\nHEADNOTE:\nIn 1954 certain amendments were made in the Court Fees\tAct,\n1870,  as  applied  to\tBombay by  the\tCourt  Fees  (Bombay\nAmendment) Act, 1954, by which the system of charging  court\nfees  in  the  Bombay High Court on the\t original  Side\t was\naltered\t and instead of a fixed fee payable on\tthe  plaint,\netc., ad valorem fees became leviable.\tThe amendments\tcame\ninto  force  on April 1, 1954, but there was  no  provision,\nexpress\t  or  by  necessary  intendment,  for  giving\tthem\nretrospective  effect.\t In respect of appeals\tfiled  after\nthat date against decrees passed in suits instituted  before\nthat  date, the question arose as to whether the court\tfees\npayable on the memoranda of appeal were according to the law\nin force at the date of the filing of the suits or according\nto the law in force at the date of the filing of appeals:\nHeld, that the court fees payable on the memoranda of appeal\nwere  according\t to the law as it stood at the date  of\t the\nfiling of the suits.\nAn  impairment\tof  the right of appeal\t by  putting  a\t new\nrestriction thereon or imposing a more onerous condition  is\nnot  a matter of procedure only ; it impairs or\t imperils  a\nsubstantive  right  and an enactment which does\t so  is\t not\nretrospective  unless it says so expressly or  by  necessary\nintendment.\nHoosein\t Kasam\tDada  (India) Ltd. v. The  State  of  Madhya\nPradesh\t and  others<\/a>,  [1953]  S.C.R.  987  and\t Garikapatti\nVeerayya v. N. Subbiah\t Choudhuyy,<\/a>   [1957]   S.C.R.\t488,\nfollowed.\nA Reference under Section 5 of the Court Fees Act, (1954) 57\nBom.   L.R.  180,  Amara  Eswaramma  and  others  v.  Makkam\nSeethamma,\n641\nA.I.R.\t1955 Andhra 221, Ayjun v. Amyita and others,  I.L.R.\n[1956]\tNag. 296 and Nagendra Nath Bose v. Mon Mohan  Singh,\n(1930) 34 C.W.N. 1009, approved.\nMohri  Kunway  v.  Keshri Chand,  I.L.R.  [1941]  All.\t558,\ndistinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
       CIVIL APPELLATE, JURISDICTION : Civil Appeals Nos. 86 and 87
\n       of 1956.\n<\/p>\n
       Appeals from the Judgment and Order dated November 24, 1954,
\n       of  the Bombay High Court in Appeals Nos. 89\/X and  96\/X\t of
\n       1954.\n<\/p>\n
       H.      R. Khanna and R. H. Dhebar, for the appellants.S.   D.
\n       Goswami and Gopal Singh, for the respondents.
\n       1960.  April 22.\t The Judgment of the Court was delivered by
\n       S.K. DAS, J.-These two consolidated appeals arise out  of
\n       the  judgment  and order of the High Court of  Bombay  dated
\n       November 24, 1954, passed on two applications in two appeals
\n       disposed\t of by the said High Court.  The facts are  similar
\n       and  the\t question of law arising therefrom is one  and\tthe
\n       same,  namely, whether in the absence of\t provisions  giving
\n       retrospective effect to certain amendments made in the Court
\n       Fees Act, 1870, as applied to Bombay by the Court Fees (Bom-
\n       bay Amendment) Act, 1954 (Bombay Act No. XII of 1954), which
\n       amendments  came\t in  force on April  1,\t 1954,\thereinafter
\n       called  the  relevant date, the court fees  payable  on\ttwo
\n       memoranda  of  appeal were payable according to the  law\t in
\n       force at the date of filing of the suits which was prior\t to
\n       the  relevant date, or according to the law in force at\tthe
\n       date  of\t the filing of the memoranda of\t appeal\t which\twas
\n       after the relevant date.\n<\/p>\n
       The  facts  are simple and may be very shortly  stated.\t On
\n       April  16, 1953, Messrs.\t Sawaldas Madhavdas brought a  suit
\n       against\tthe Arati Cotton Mills Ltd., praying for  a  decree
\n       for  rupees two lacs and odd.  The suit was decreed on  July
\n       22, 1954.  The Arati Cotton Mills Ltd. filed a memorandum of
\n       appeal  against\tthe said decree on September 4,\t 1954,\tand
\n       paid  court fees of Rs. 3,193-12-0 on the  said\tmemorandum.
\n       On  or  about October 5, 1954, a settlement was\tarrived\t at
\n       between\tthe  parties and on October 9, 1954, a\tprayer\twas
\n       made  for dismissal of the appeal for want  of  prosecution.
\n       On November 18, 1954, an application was
\n       642<\/span>
\n       made  under  s. 151, Code of Civil Procedure, by\t the  Arati
\n       Cotton  Mills Ltd., for refund of excess court fees paid\t on
\n       the memorandum of appeal.  In the application it was stated:
\n       ” The appellants say that the appeal having arisen out of  a
\n       suit which had been instituted on or about 16th April, 1953,
\n       long  prior  to\tthe coming into force  of  the\tCourt  Fees
\n       (Bombay\tAmendment)  Act, XII of 1954, no  court\t fees  were
\n       payable\ton  the\t memorandum  of\t appeal\t herein\t except\t as
\n       provided in the Table of fees hereinafter mentioned and that
\n       it was due to a mistake that the appellants were called upon
\n       to pay the said institution fee amounting to RE;. 3,193-12-0
\n       and  the\t said sum was paid by the appellants under  a  bona
\n       fide  mistake  and\/or inadvertence  and\/or  oversight.\tThe
\n       appellants  say that the only fee payable for the filing\t of
\n       the  said memorandum of appeal was the fee of Rs.  32  under
\n       item No. 58 of the Table of fees set out at page 396 of\tthe
\n       Rules of this Court.  The appellants say that they were\tnot
\n       legally bound to pay anything more than the said sum of\tRs.
\n       32 and that sum of Rs. 3,161-12-0 paid by them in excess\t of
\n       the said sum of Rs. 32 was paid by mistake and ignorance\t of
\n       the appellant’s legal rights and\/or through inadvertence\t or
\n       oversight.   The appellants submit that it is necessary\tfor
\n       the  ends  of justice that the said sum\tof  Rs.\t 3,161-12-0
\n       should be ordered to be refunded to them.”\n<\/p>\n
       Similarly,  on  December\t 17,1953,  Messrs.   Rasiklal\tand
\n       Company\tLtd.,  brought\ta  suit\t against  Messrs.   Supreme
\n       General\tFilms  Exchange Ltd. and two  other  defendants\t in
\n       which a decree was passed on May 11, 1954, for a sum of\tRs.
\n       44,876-12-0 against Messrs.  Supreme General Films  Exchange
\n       Ltd.   The latter filed a memorandum of appeal on  July\t31,
\n       1954,  and paid court fees of Rs. 1,958 on it.\tThe  appeal
\n       was, however, withdrawn with the leave of the High Court\t on
\n       September 27, 1954.  Messrs.  Supreme General Films Exchange
\n       Ltd.  then applied for refund of the excess court fees  paid
\n       on  a ground similar to that mentioned earlier in  connexion
\n       with the application of the Arati Cotton Mills Ltd.\n<\/p>\n
       643<\/span><\/p>\n
       Both  the  applications were heard together after  issue\t of
\n       notice to the Advocate-General, Bombay, who appeared for the
\n       State  of  Bombay  and opposed  the  applications.   By\tits
\n       judgment\t and order dated November 24, 1954, the High  Court
\n       allowed\tthe applications.  The State of Bombay\tthen  asked
\n       for  and obtained a certificate in the two cases which  were
\n       consolidated to the effect that they were fit for appeal\t to
\n       this  Court.  These two appeals have been preferred  on\tthe
\n       strength of that certificate.\n<\/p>\n
       Now,  the learned Chief Justice who delivered  the  judgment
\n       allowing\t the  two  applications,  referred  to\tan  earlier
\n       decision of his, reported in A Reference Under Section 5\t of
\n       the Court Fees Act (1) and ;aid that that decision  governed
\n       the present cases also.\tThe facts which led to the  earlier
\n       decision\t were: (1) that prior to the relevant date  a  suit
\n       for  partition of joint family property fell under  Schedule
\n       II,  Art. 17 (vii) of the Court Fees Act and the court  fees
\n       payable were Rs. 18-12-0 only; (ii) an amendment which  came
\n       into  effect on the relevant date said that the\tcourt  fees
\n       payable\tin such suits should be according to the  value\t of
\n       the share in respect of which the suit is instituted ; (iii)
\n       a  suit for partition of joint family property  was  brought
\n       before the relevant date but an appeal was filed thereafter.
\n       The question was: on the facts stated above, what court fees
\n       were  payable on the memorandum of appeal.  Relying  on\tthe
\n       decision of this Court in Hoosein Kasam Dada (India) Ltd. v.
\n       The  State  of Madhya Pradesh and Others<\/a> (2  )  and  certain
\n       other  decisions\t to  which we shall  presently\trefer,\tthe
\n       learned\tChief  Justice\theld that a right of  appeal  is  a
\n       substantive  right which vests in a litigant at the date\t of
\n       the filing of the suit, and cannot be taken away unless\tthe
\n       legislature  expressly or by necessary intendment  says\tso;
\n       furthermore, an appeal is a continuation of the suit, and it
\n       is not merely that a right of appeal cannot be taken away by
\n       a procedural enactment which is not made retrospective,\tbut
\n       the  right  cannot  be impaired or imperilled  nor  can\tnew
\n       conditions be attached to the filing of the appeal; nor\tcan
\n       a  condition already existing be made more onerous  or  more
\n       stringent so as to
\n       (1) [1954] 57 Bom.  L.R. 180.\n<\/p>\n
       (2) [1953] S.C.R. 987.\n<\/p>\n
       644<\/span><\/p>\n
       affect the right of appeal arising out of a suit\t instituted
\n       prior  to the enactment.\t Learned counsel for the  appellant
\n       has  made  a  somewhat feeble  attempt  to  distinguish\tthe
\n       decision\t in A Reference Under Section 5 of the\tCourt  Fees
\n       Act  (1) on facts, but it cannot be seriously disputed  that
\n       if  that\t decision is correct, then it must govern  the\ttwo
\n       cases before us.\t Though the facts are not identical, we see
\n       no difference in principle between them.\n<\/p>\n
       On  behalf of the State of Bombay, appellant before us,\tthe
\n       correctness  of\tthe  decision has been\tchallenged  on\tthe
\n       ground  that  there  is no vested  right\t in  procedure\tand
\n       reliance\t has  been  placed  on the  principle  ”  that\tthe
\n       presumption  against  a retrospective  construction  has\t no
\n       application  to enactments which affect only  the  procedure
\n       and  practice of the courts, even when the alteration  which
\n       the  statute  makes  may be disadvantageous to  one  of\tthe
\n       parties\t” (see Maxwell on Interpretation of Statutes,  10th
\n       Edn., p. 225).  Very strong reliance has been placed on\tthe
\n       decision\t in  Mohri Kunwar v. Keshri Chand (2)  and  on\tthe
\n       observations made therein to the effect that no suitor has a
\n       vested  right  to  insist  that during  the  pendency  of  a
\n       litigation  which  a  suitor  has  started,  the\t  enactment
\n       relating\t to  court  fee shall not be changed  and  the\tfee
\n       leviable\t shall not be increased or reduced with\t regard\t to
\n       future  appeals\tand  he\t would\tbe  entitled  to  carry\t on
\n       proceedings  on the basis of the law as it stood\t when-\tthe
\n       plaint  was filed even though the law is different  when\t he
\n       comes to file an appeal.\t On behalf of the respondent it has
\n       been submitted that since the decision of the learned  Chief
\n       Justice\tof  the\t Bombay High Court  in\tA  Reference  Under
\n       Section 5 of the Court Fees Act (1), there has been  another
\n       decision\t  of  this  Court  which  concludes  the   question
\n       (Garikapatti Veerayya v. N. Subbiah Choudhury)<\/a> (3) and it is
\n       argued  that  the true principle is that where  a  right\t of
\n       appeal  is  impaired  or imperilled or  a  more\tonerous\t or
\n       stringent  condition  is\t put on the right  of  appeal,\tthe
\n       impairment,   peril  or\timposition  of\ta  more\t  stringent
\n       condition is not retrospective unless
\n       (1) [1954] 57 Bom.  L.R. 180.  (2) I.L.R. [1941) All. 558.
\n       (3) [1957] S.C.R. 488.\n<\/p>\n
       645<\/span><\/p>\n
       the   legislature   says\t so  expressly\tor   by\t  necessary
\n       intendment.\n<\/p>\n
       It  is  necessary  to state here what  the  High\t Court\thas
\n       clearly\tpointed out with regard to the amendments  made\t by
\n       the  Court  Fees\t (Bombay  Amendment)  Act,  1954.   On\tthe
\n       relevant date the whole system of charging court fees in the
\n       Bombay  High  Court  on the Original Side  was  altered\tand
\n       instead\tof  a  fixed fee payable on the\t plaint,  etc.,\t ad
\n       valorem\tfees  became  leviable as in  the  districts.\tThe
\n       change was effected inter alia by deleting s. 4 and amending
\n       s.  6 of the Court Fees Act, 1870, and Art. 1 of Sch.  I\t to
\n       the  Act.  There was no provision, express or  by  necessary
\n       intendment,   for   giving  retrospective  effect   to\tthe
\n       amendments made in the sense of affecting a right of  appeal
\n       arising out of a suit instituted prior to the relevant date.
\n       As this position has not been contested, it is not necessary
\n       to read here the provisions of the Amending Act.
\n       We  proceed straightaway to consider the arguments  advanced
\n       on behalf of the appellant.  So far as we have been able\t to
\n       appreciate  the submissions made on behalf of  the  parties,
\n       the point of controversy is really this: is an impairment of
\n       the right of appeal by imposing a more stringent or  onerous
\n       condition  thereon  a matter of procedure only or  is  it  a
\n       matter of substantive right ? We think that the question\t is
\n       really  concluded by the decisions of this Court.  We  refer
\n       first to the decision in Hoosein Kasam Dada (India) Ltd.\t v.
\n       The  State of Madhya Pradesh and others<\/a> (1).  The  facts\t of
\n       that case were these: Section 22(1) of the Central Provinces
\n       and  Berar  Sales  Tax Act, 1947, provided  that\t no  appeal
\n       against an order of assessment should be entertained by\tthe
\n       prescribed  authority  unless  it was  satisfied\t that  such
\n       amount  of tax as the appellant might admit to be  due  from
\n       him,  had been paid.  This Act was amended on  November\t25,
\n       1949, and s. 22(1) as amended provided that no appeal should
\n       be  admitted  by the said authority unless such\tappeal\twas
\n       accompanied by satisfactory proof of the payment of the\ttax
\n       in respect of which the appeal had
\n       (1)  [1053] S.C.R. 987.\n<\/p>\n
       84<\/span>
\n       646<\/span><\/p>\n
       been  preferred.\t  On  November\t26,  1947,  the\t  appellant
\n       submitted  a return to the Sale-, Tax Officer, who,  finding
\n       that the turnover exceeded 2 lacs, submitted the case to the
\n       Assistant  Commissioner for disposal and the latter made\t an
\n       assessment  on  April 8, 1950.  The appellant  preferred\t an
\n       appeal on May 10, 1950, without depositing the amount of tax
\n       in  respect of which he had appealed.  The Board of  Revenue
\n       was of opinion that s. 22(1) as amended applied to the  case
\n       as  the assessment was made, and the appeal  was\t preferred,
\n       after the amendment came into force and rejcted the  appeal.
\n       It  was held by this court that the appellant had  a  vested
\n       right of appeal when the proceedings were initiated in  1947
\n       and his right of appeal was governed by the law as it  stood
\n       then.  It was further held that the amendment of 1950  could
\n       not  be\tregarded as a mere alteration in  procedure  or\t an
\n       alteration  regulating the exercise of the right of  appeal;
\n       it whittled down the right itself, and bad no  retrospective
\n       effect as the Amendment Act of 1950 did not expressly or\t by
\n       necessary  intendment  give it retrospective  effect.   This
\n       decision\t proceeded on the principle that impairment of\tthe
\n       right of appeal by imposing a more onerous condition is\tnot
\n       a  matter  of procedure only.  The decision  in\tGarikapatti
\n       Veerayya v. Subbiah Choudhury<\/a> (1), referred specifically\t to
\n       two  decisions  relating\t to an increase in  court  fees\t by
\n       subsequent  amendment of the Court Fees Act, and one of\tthe
\n       decisions was Sawaldas Madhavdas v. Arati Cotton Mills  Ltd.
\n       (2),  the  very decision which is under\tappeal\there.\tThe
\n       other decision was R. M. Seshadri v. The Province of  Madras
\n       (3).   Perhaps,\tour  attention was not then  drawn  to\tthe
\n       circumstance  that  the decision in  Sawaldas  Madhavdas\t v.
\n       Arati  Cotton  Mills  Ltd. (2) was at the  time\tpending\t in
\n       appeal  here.   The  point of the  decision  in\tGarikapatti
\n       Veerayya\t (1)  is, however, this: this Court  referred  with
\n       approval\t to  decisions\twhich accepted\tthe  position  that
\n       taking  away a right of appeal and imposing a  more  onerous
\n       condition  on such right involved the same principles as\t to
\n       retrospective effect of the subsequent legislation.
\n       (1) [1957] S.C.R 488.\t   (2) [1954] 57 B.L.R. 394.\n<\/p>\n
       647<\/span><\/p>\n
       A  similar view was expressed in Amara Eswaramma and  others
\n       v. Makkam Seethamma (1) and Arjun v. Amrita and others ( 2).
\n       The appellant has relied on In re,: Punya Nahako (3).   That
\n       was  a case of review, and it was held that if  between\tthe
\n       date of the plaint or the appeal and the date for filing the
\n       petition\t for review, there was a change in the\tCourt  Fees
\n       Act  increasing the fee payable ad valorem,  the\t petitioner
\n       must  pay at the increased rate.\t The learned Chief  Justice
\n       (Chagla, C. J.) expressed the opinion that a review does not
\n       stand  on the same footing as an appeal, and one cannot\tsay
\n       that  there  is a substantive right of review.\tIt  may\t be
\n       pointed\tout here that even in respect of a review,  a  view
\n       different  from that of the Madras High Court was  taken\t in
\n       Parmeshar  Kurmi\t v. Bakhtwar Pande (4).\t  It  is,  however,
\n       unnecessary to say anything more about a review, because\t we
\n       are riot concerned with it in the present case.
\n       In Anand Ram Pramhans and others v. Ramgulam Sahu and others
\n       (5)  the question which was mooted and discussed related\t to
\n       the  proper  presentation  of a memorandum  of  appeal,\tand
\n       incidentally  it was observed that the new Bihar and  Orissa
\n       Court Fees Act which had already come into force applied\t to
\n       the  case.   There was no discussion of the question  as\t to
\n       whether\tthe enactment in question was  given  retrospective
\n       effect or not.  As to the decision in Mohri Kunwar v. Keshri
\n       Chand  (6) on which so much reliance has been placed by\tthe
\n       appellant,  it is necessary to point out that  the  question
\n       there  was  if the right of appeal created by s. 6A  of\tthe
\n       Court  Fees Act, which was added by U. P. Act, XIX of  1938,
\n       was  available as against an order passed after\tthe  coming
\n       into  force of the latter Act, although that Act was not\t in
\n       exist-\n<\/p>\n
       ence  and consequently there was no right of appeal  at\tthe
\n       date of filing that plaint.  It was held that the enactment,
\n       by  the\tamending  Act of 1938, of s. 6A\t which\tallowed\t an
\n       appeal\tagainst\t an  order  demanding  the  payment  of\t  a
\n       deficiency  in court fees did not take away any right  which
\n       was vested in the plaintiff on
\n       (1) A I.R. 1955 Andhra 221.  (2) I.L.R. [1956] Nag. 296.
\n       (3)  [1926] I.L.R. 50 Mad. 488.\t(4) [1932] I.L.R.  54  All.
\n       1092.\n<\/p>\n
       (5) A.I.R. 1923 Pat. 150.  (6) I.L.R. [1941] All. 558.\n<\/p>\n
       648<\/span><\/p>\n
       the date on which he filed the plaint, it only conferred\t on
\n       him  a new right; nor did it take away any right\t which\twas
\n       vested  in  the defendant, for though  the  defendant  could
\n       object if the plaint was not properly stamped and might also
\n       have  a right to have the matter determined by the court\t he
\n       had  no vested right in the procedure by which it was to\t be
\n       determined, and this procedure could be changed pending\tthe
\n       suit and a change in procedure could not be said to  deprive
\n       him of any vested right.\t It would appear from what has been
\n       stated above that the decision proceeded on the footing that
\n       the  amending Act conferred a new right of appeal,  and\tnot
\n       that  it took away a vested right of appeal; and the  reason
\n       of the decision was based on the principle that there is\t no
\n       vested  right in the procedure by which the  sufficiency\t of
\n       court fees is determined by a court.  That is a principle of
\n       a different character from the one we are concerned with\t in
\n       the  present  case,  viz., the  retrospective  effect  of  a
\n       subsequent  enactment  which either takes away  a  right\t of
\n       appeal or impairs it by imposing a more stringent or onerous
\n       condition  thereon.   We do not, therefore, think  that\tthe
\n       Allahabad decision helps the appellant.\n<\/p>\n
       The  question was considered in reverse in Delhi\t Cloth\tand
\n       General Mills Co. Ltd. v. Income-tax Commissioner, Delhi<\/a> (1)
\n       and  the principle of Colonial Sugar Refining Co. v.  Irving
\n       (2)  was\t applied.   Another decision in point  is  that\t of
\n       Nagendra Nath Bose V. Mon Mohan Singh Roy (3).  In that case
\n       the  plaintiff  instituted  a suit for rent  valued  at\tRs.
\n       1,306-15-0  and\tobtained a decree.  In\texecution  of  that
\n       decree the defaulting tenure was sold on November 20,  1926,
\n       for  Rs.\t 1,600.\t On December 19, 1928, an  application\twas
\n       made under 0. 21, r. 90, of the Code of Civil Procedure,\t by
\n       the  petitioner\twho  was one of the  judgment  debtors\tfor
\n       setting\taside  the  sale.   That  application  having  been
\n       dismissed  for  default of his  appearance,  the\t petitioner
\n       preferred  an  appeal  to the District  Judge,  Hoogly,\twho
\n       refused\tto admit the appeal on the ground that the  amount,
\n       recoverable in
\n       (1) [1927] L.R. 54 I.A. 421.  (2) [1905] A.C. 369.
\n       (3) [1930] 34 C.W.N. 1009.\n<\/p>\n
       649<\/span><\/p>\n
       execution  of the decree had not been deposited as  required
\n       by  the proviso to s. 174(c) of the Bengal Tenancy Act as  a
\n       mended  by an amending Act of 1928.  The contention  of\tthe
\n       petitioner was that the amending provision, which came  into
\n       force  on February 21, 1929, could not affect his  right\t of
\n       appeal from the decision on an application made on  December
\n       19, 1928, for setting aside the sale.  Mitter, J., said :  ”
\n       We think the contention of the petitioner is wellfounded and
\n       must prevail.  That a right of appeal is a substantive right
\n       cannot  now be seriously disputed.  It is not a mere  matter
\n       of  procedure.  Prior to the amendment of 1928 there was\t an
\n       appeal  against an order refusing to set aside a\t sale  (for
\n       that is the effect also where the application to set  aside’
\n       the  sale is dismissed for default) under the provisions\t of
\n       Order  43, rule (1), of the Code of Civil  Procedure.   That
\n       right  was  unhampered by any restriction of  the  kind\tnow
\n       imposed by s. 174(5), proviso.  The Court was bound to admit
\n       the  appeal  whether  the  appellant  deposited\tthe  amount
\n       recoverable in execution of the decree or not.  By requiring
\n       such  deposit as a condition precedent to the  admission\t of
\n       the  appeal, a new restriction has been put on the right\t of
\n       appeal,\tthe  admission\tof which is now hedged\tin  with  a
\n       condition.   There can be no doubt that the right of  appeal
\n       has  been affected by the new provision arid in the  absence
\n       of  an  express\tenactment this amendment  cannot  apply\t to
\n       proceedings pending at the date when the new amendment  came
\n       into force.  It is true that the appeal was filed after\tthe
\n       Act came into force, but that circumstance is immaterial-for
\n       the  date to be looked into for this purpose is the date\t of
\n       the original proceeding. which eventually culminated in\tthe
\n       appeal.”\t This decision was approved by this Court  both\t in
\n       Hoosein Kasam Dada (1) and Gankapatti Veerayya (2).
\n       It  is thus clear that in a long line of decisions  approved
\n       by  this Court and at least in one given by this\t Court,\t it
\n       has  been held that an impairment of the right of appeal\t by
\n       putting a new restriction thereon or imposing a more onerous
\n       condition  is not a matter of procedure only; it impairs\t or
\n       imperils a
\n       (1) [1953] S.C.R. 987.\n<\/p>\n
       (2) [1957] S.C.R. 488.\n<\/p>\n
       650<\/span><\/p>\n
       substantive  right  and an enactment which does\tso  is\tnot
\n       retrospective unless it says so expressly or by
\n       necessary intendment.\n<\/p>\n
       We are, therefore, of the view that the High Court was right
\n       in  the\tview it took, and the orders of\t refund\t of  excess
\n       court fees which it passed were correct in law.
\n       Accordingly, the appeals fail and are dismissed with  costs.
\n       There  will  be one set of costs, as the appeals\t have  been
\n       consolidated and heard together.\n<\/p>\n
       Appeals dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Bombay vs Supreme General Films Exchange … on 22 April, 1960 Equivalent citations: 1960 AIR 980, 1960 SCR (3) 640 Author: S Das Bench: Das, S.K. PETITIONER: STATE OF BOMBAY Vs. RESPONDENT: SUPREME GENERAL FILMS EXCHANGE LTD.(with connected appeal) DATE OF JUDGMENT: 22\/04\/1960 BENCH: DAS, S.K. BENCH: DAS, S.K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-109430","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Bombay vs Supreme General Films Exchange ... on 22 April, 1960 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-bombay-vs-supreme-general-films-exchange-on-22-april-1960\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Bombay vs Supreme General Films Exchange ... on 22 April, 1960 - 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