TMI Blog1930 (6) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... 15-0. The suit having been decreed the plaintiffs decree-holders executed the decree, the defaulting tenure was put up to sale on 20th November 1928, and one Satish Chandra Singha Chaudhury, the present opposite party 4, purchased the same for ₹ 1,600. Thereupon the petitioner applied to have the sale set aside, but his case was dismissed for default. 3. Against that order he preferred an appeal to the District Judge who dismissed it on the ground that it could not be entertained inasmuch as the provision of the amended Section 174, Ben. Ten. Act had not been complied with by making . the deposit required by Sub-section (5) of that section. 4. The petitioner then moved this Court and obtained the present rule. The point of law i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany's case [1905] A. C. 369 was referred to as conclusive authority for the view that rights of appeal are not matters of procedure, and that the right to enter the superior Court of appeal is deemed to arise to a litigant before any decision has been given by the inferior ' Court. If that be so it would seem to follow that the substantive right of appeal which the litigant possesses must be deemed to be prejudicially affected by a new provision which has the effect of attaching to it any clog or disability. In that case it would further appear to follow that such a provision cannot be treated as retrospective in its operation when the Act itself is silent as to any such intention. 6. In the result therefore I am of opinion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner withdrew from the case and the application was dismissed for default. . 10. Against this order the petitioner preferred an appeal to the District Judge of Hooghly, who refused to admit the said appeal on 11th July 1929 on the ground that the amount recoverable in execution of the decree had not been deposited as is required by the proviso to Section 174, Clause 5, as amended by the Bengal Tenancy Amendment Act, 1928. 11. The petitioner has obtained the present rule for revision of the order of the District Judge refusing to entertain the appeal and it is contended before us that the learned District Judge has declined jurisdiction in not entertaining the appeal on an erroneous view of the law. It is said Section 174 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s enactment this amendment cannot apply to proceedings pending at the date when the new amendment came into force. It is true that the appeal was filed after the Act came into force but that circumstance is immaterial for the date to be looked into for this purpose is the date of the original proceeding which eventually culminated in the appeal. This position is now firmly established by authorities both old and new to which I will presently refer. In the case of Colonial Sugar Refining Company v. Irving, at p. 372, Lord Macnaughten delivering the judgment of their Lordships of the Judicial Committee of the Privy Council said this: And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court said that the reasoning of the Judicial Committee in Colonial Sugar Company's case (above referred to) was conclusive authority to show that rights of appeal were not mere matters of procedure and that the right to enter the superior Court was deemed to arise to a litigant before, any decision had been given by the inferior Court: see Sheikh Sardar Ali v. Sheikh Dorluddin . 15. In Attorney General v. Sillem [1874] 10 H. L. C. 704 Lord Westbury expressed himself thus on the question that the right of appeal was not a mere matter of procedure : his Lordship said this: The right of appeal is only by statute. It is not in itself a necessary part of the procedure in the action but is the right of entering a supreme Court and inv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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