Judgment:
1. This L.P.A. arises out of a decision in First Appeal No. 79 of 1980.
2. As the whole matter arises on the applicability of the amended provisions of Code of Civil Procedure, 1908 we are not entering into the details of the matter.
3. Originally a suit was filed, being Special Civil Suit No. 17 of 1973 in the learned Civil Judge, Senior Division at Alibaug, Dist. Raigad. In course of time the matter came to be settled and purshis were filed on 3/10/1976. Decree came to be passed in that suit pursuant to a compromise on 4th October, 1976.
4. Amendment to the Code of Civil Procedure was made on a large scale in 1976 and they were given effect to on and from 1/2/1977.
5. But Special Civil Suit No. 17 of 1977 came to be filed by some of the defendants of the Special Civil Suit No. 17 of 1973. A preliminary objection was raised by filing an application under Order VII Rule 11 of the C.P.C. saying that the suit as filed as barred by law.
6. For this purpose, reliance was placed on the amended provisions of Order XXIII Rule 3A which specifically bars a suit in relation to a decree that has been drawn pursuant to a compromise under Order XXIII of the C.P.C.
7. The Trial Court rejected the plaint under Order VII Rule 11 of the C.P.C. and it being an appellable order, the first appeal came to be filed before this Court. On having rejected the first appeal, the present L.P.A. came to be filed.
8. The question with relation to any suit has to be viewed in relation to the cause of action for the redressal of which the suit is filed. In the instant case as the cause relates to the said compromise from which decree was granted on 4/10/1976, that decree having given the cause, the statutory provisions prevalent on that date shall crystalise the rights between the parties.
9. Order XXIII Rule 3 of the C.P.C. not being in existence at that stage 4/10/1976, obviously the suit could have been filed on the next date. It could have been filed on any date within a period of 3 years because of the statute of limitation, Article 113 of the same being omnibus clause.
10. The suit came to be filed on 9/2/1977, with reference to the aforesaid discussions, if the filing of the suit on 9/2/1977 is viewed to have been filed as on 4/10/1976 or any date thereafter till the amendment was brought into force, obviously the suit would certainly lay before the Trial Court. Merely because it has been filed within a period of 3 years but after coming into operation of the amending Act, in our opinion, no bar of law as envisaged by the Trial Court and confirmed by the learned Single Judge could arise.
11. The cause of action having arisen on or about 4/10/1976 and as per the statutory provision, on that date, if there was no bar to the filing of the suit, the amendment being not retrospective, certainly the suit would lie. The order passed by the Trial Court under Order VII Rule 11 of rejecting the plaint, therefore, cannot be sustained. The order passed by the learned Single Judge also would therefore go.
12. The net result, therefore, is that the appeal succeeds. The orders of the learned Single Judge and that of the Trial Court are set aside. The plaint will be taken on record. Suit should be proceeded with in accordance with law. It is further directed that at the time of filing of the suit, the stay granted as to the execution of the compromise decree shall also stands revived.
13. Parties to act on a copy of this order duly authenticated by the Sheristedar.