TMI Blog1960 (4) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... e at the date of the filing of the memoranda of appeal which was after the relevant date. The facts are simple and may be very shortly stated. On April 16, 1953, Messrs. Sawaldas Madhavdas brought a suit against the Arati Cotton Mills Ltd., praying for a decree for rupees two lacs and odd. The suit was decreed on July 22, 1954. The Arati Cotton Mills Ltd. filed a memorandum of appeal against the said decree on September 4, 1954, and paid court fees of ₹ 3,193-12-0 on the said memorandum. On or about October 5, 1954, a settlement was arrived at between the parties and on October 9, 1954, a prayer was made for dismissal of the appeal for want of prosecution. On November 18, 1954, an application was made under s. 151, Code of Civil Procedure, by the Arati Cotton Mills Ltd., for refund of excess court fees paid on the memorandum of appeal. In the application it was stated: The appellants say that the appeal having arisen out of a suit which had been instituted on or about 16th April, 1953, long prior to the coming into force of the Court Fees (Bombay Amendment) Act, XII of 1954, no court fees were payable on the memorandum of appeal herein except as provided in the Table ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The facts which led to the earlier decision were: (1) that prior to the relevant date a suit for partition of joint family property fell under Schedule II, Art. 17 (vii) of the Court Fees Act and the court fees payable were ₹ 18-12-0 only; (ii) an amendment which came into effect on the relevant date said that the court fees payable in such suits should be according to the value of the share in respect of which the suit is instituted ; (iii) a suit for partition of joint family property was brought before the relevant date but an appeal was filed thereafter. The question was: on the facts stated above, what court fees were payable on the memorandum of appeal. Relying on the decision of this Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Others, [1953] S.C.R. 987 and certain other decisions to which we shall presently refer, the learned Chief Justice held that a right of appeal is a substantive right which vests in a litigant at the date of the filing of the suit, and cannot be taken away unless the legislature expressly or by necessary intendment says so; furthermore, an appeal is a continuation of the suit, and it is not merely that a right of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of a more stringent condition is not retrospective unless the legislature says so expressly or by necessary intendment. It is necessary to state here what the High Court has clearly pointed out with regard to the amendments made by the Court Fees (Bombay Amendment) Act, 1954. On the relevant date the whole system of charging court fees in the Bombay High Court on the Original Side was altered and instead of a fixed fee payable on the plaint, etc., ad valorem fees became leviable as in the districts. The change was effected inter alia by deleting s. 4 and amending s. 6 of the Court Fees Act, 1870, and Art. 1 of Sch. I to the Act. There was no provision, express or by necessary intendment, for giving retrospective effect to the amendments made in the sense of affecting a right of appeal arising out of a suit instituted prior to the relevant date. As this position has not been contested, it is not necessary to read here the provisions of the Amending Act. We proceed straightaway to consider the arguments advanced on behalf of the appellant. So far as we have been able to appreciate the submissions made on behalf of the parties, the point of controversy is really this: is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, and one of the decisions was Sawaldas Madhavdas v. Arati Cotton Mills Ltd. (2), the very decision which is under appeal here. The other decision was R. M. Seshadri v. The Province of Madras (3). Perhaps, our attention was not then drawn to the circumstance that the decision in Sawaldas Madhavdas v. Arati Cotton Mills Ltd., [1954] 57 B.L.R. 394 was at the time pending in appeal here. The point of the decision in Garikapatti Veerayya (1) is, however, this: this Court referred with approval to decisions which accepted the position that taking away a right of appeal and imposing a more onerous condition on such right involved the same principles as to retrospective effect of the subsequent legislation. A similar view was expressed in Amara Eswaramma and others v. Makkam Seethamma, A I.R. 1955 Andhra 221and Arjun v. Amrita and others, I.L.R. [1956] Nag. 296. The appellant has relied on In re,: Punya Nahako, [1926] I.L.R. 50 Mad. 488. That was a case of review, and it was held that if between the date of the plaint or the appeal and the date for filing the petition for review, there was a change in the Court Fees Act increasing the fee payable ad valorem, the petitioner must pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the reason of the decision was based on the principle that there is no vested right in the procedure by which the sufficiency of court fees is determined by a court. That is a principle of a different character from the one we are concerned with in the present case, viz., the retrospective effect of a subsequent enactment which either takes away a right of appeal or impairs it by imposing a more stringent or onerous condition thereon. We do not, therefore, think that the Allahabad decision helps the appellant. The question was considered in reverse in Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi [1927] L.R. 54 I.A. 421 and the principle of Colonial Sugar Refining Co. v. Irving, [1905] A.C. 369 was applied. Another decision in point is that of Nagendra Nath Bose V. Mon Mohan Singh Roy, [1930] 34 C.W.N. 1009. In that case the plaintiff instituted a suit for rent valued at ₹ 1,306-15-0 and obtained a decree. In execution of that decree the defaulting tenure was sold on November 20, 1926, for ₹ 1,600. On December 19, 1928, an application was made under 0. 21, r. 90, of the Code of Civil Procedure, by the petitioner who was one of the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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