Full Judgment
R. Bhaskaran, J.
1. The registry has rightly refused to number the case as a Second Appeal. The suit was filed for realisation of Rs. 13,600/-. Though the trial court decreed the suit, the lower appellate court reversed the judgment and decree of the trial court. The Second Appeal was filed on 1.7.2002 on which the date the Code of Civil Procedure Amendment Act, 2002 came into force. Section 102 of the Code, as amended, reads as follows:
'102. No Second Appeal in certain cases.- No Second Appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.'
In this case, the valuation in the suit is only Rs. 13,600/- and therefore no second appeal is maintainable under Section 102.
2. The learned counsel appearing for the appellants brought to my notice the decision of the Supreme Court in Garikapati v. Subbiah Choudhry (AIR 1957 SC 540) where the Supreme Court has held as follows:
'From the decisions cited above, the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and Second Appea! are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exits as on and from the date of the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary implication and not otherwise.'
3. The question therefore is whether there is anything in the Amendment Act which takes away the vested rights of the plaintiff to take the matter in second appeal; as on the date of the filing of the suit, he had that right. Section 16(2)(a) of the Code of Civil Procedure (Amendment) Act, 2002, reads as follows:
'The provisions of Section 102 of the principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force.'
Therefore by necessary intendment the amendment has taken away the vested right of the plaintiff to file a Second Appeal on and after the commencement of the Amendment Act. This reasoning is also in consonance with the view taken by the Division Bench of this Court in Clara v. Augustine (1984 KLT 377) and Kunnappadi Kalliani v. Lekharaj (1996 (2) KLT 106).
4. The learned counsel for the appellant submitted that he has taken a ground in the memorandum of Second Appeal that in case the Second Appeal is not maintainable, the plaintiff may be permitted to convert the Second Appeal as a Civil Revision Petition. Since the plaintiff has made a prayer in the memorandum of Second Appeal itself for permission to convert it as a Civil Revision Petition, the appellant shall be allowed to make necessary corrections in the memorandum of Second Appeal to convert it as a Civil Revision Petition. Of course it is for the appellant to satisfy whether the provisions of Section 155 of the Code of Civil Procedure are attracted in this case which can be considered only at the admission stage of the Civil Revision Petition.