Dr. B.S. Chauhan, J.
1. The second appeal has been preferred against the judgment and decree dated 24.1.2002 passed by the Additional District Judge, Jodhpur, affirming the judgment and the decree of the trial Court dated 7.5.1999, by which it had decreed the suit of the respondent-plaintiff for recovery of Rs. 25,000/- with consequential reliefs.
2. The facts and circumstances giving rise to this case are that between the parties, an agreement to sell was executed on 6.2.1996 in respect of the land measuring 4 bighas for a consideration of Rs. 4,00,000/- and a sum of Rs. 25,000/- was paid to the appellant-defendant as the earnest money with a understanding that the respondent-plaintiff shall be put in possession and further amount shall be paid on future dates. However, on the agreed date, i.e. 9.2.1996, respondent- plaintiff could not be put in possession as the land, in respect of which the agreement to sell had been executed, could not been partitioned between the co-tenants and later on the sale was not executed. Being aggrieved, suit for recovery of Rs. 25,000/- was filed. The appellant-defendant contested the suit, denying the averments made therein. However, the trial Court, vide judgment and decree dated 7.5.1999, decreed the suit for recovery of Rs. 25,000/- which had been the value of the subject-matter in the suit along with interest @ 6% p.a. The appeal against the said judgment and decree has been dismissed vide judgment and decree dated 24.1.2002 on the ground of limitation as well as on merit. Hence this appeal.
3. At the time of entertaining the appeal first time, learned Counsel for the appellant was confronted with the provisions of Section 102 of the Code of Civil Procedure, 1908 (for short, 'the Code') as amended w.e.f. 1.7.2002 and hence issue of mainainability of the appeal was considered.
4. Prior to the amendment, Section 102 of the Code provided that no appeal would lie when the amount or value of the subject- matter of the original suit did not exceed Rs. 3000/-. However, by amendment, it has been enhanced to Rs. 25,000/-. In the instant case, the value of the subject-matter of the suit was Rs. 25,000/- only, meaning thereby it did not exceed Rs. 25,000/-. Therefore, the question does arise, whether appeal is barred by the provisions of Section 102 of the Code.
5. Learned Counsel for the appellant does not dispute that the value of the subject-matter of the original suit was not exceeding Rs. 25,000/-; however, his sole contention has been that the case not fall within the ambit of the Amendment for the reason that the right of appeal is a 'substantive right' being a creature of the Statute and as appeal is continuity of the suit, the right of appeal of the appellant cannot be taken away by the amendment.
6. Moreso, argument has been advanced that by virtue of Section 6 of the General Clauses Act, 1897 (for short, 'the Act, 1897'), the right of appeal is protected.
7. Undoubtedly, Section 6 of the Act, 1897 protects the 'accrued rights' of the litigant if an Act is amended inspite of the fact that certain provisions have been repelled, unless a different opinion appears from the amended Act. Clause (c) thereof is relevant as the repeal shall not 'affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repelled.'
In Gujarat State Electricity Board v. Shanti Lal R. Desai : [1969]1SCR580 , the Hon'ble Supreme Court held that Section 6 of the Act, 1897 protects only the 'accrued rights' which have not specifically been taken away by the amended Act and it also saves the previous operation of an enactment so repelled.
In Lalji Raja & Sons v. Firm Hansraj Nathuram : [1971]3SCR815 , the Apex Court held that a party seeking the benefit of Section 6 of the Act, 1897 has to satisfy that a right had accrued in his favour under the repelled law which has expressly not been taken away by the amending Act. That a provision to preserve the 'right accrued' under a repelled Act was not intended to preserve the abstract rights conferred by the repelled Act. It only applies to specific right given to an individual upon happening of one or other of the events specified in the Statute. While deciding the said case, the Court relied upon the judgments in Hamilton Gell v. White (1922) 2 KB 422; Abbat v. Minister of for Land 1985 SC 425 and G. Ogden Industries P. Ltd. v. Locus (1969) 1All. E.R. 121.
In M.S. Shivananda v. K.S.R.T. Corporation and Ors. : (1980)ILLJ77SC , the Hon'ble Supreme Court held that a party, seeking the benefit of Section 6 of the Act, 1897, has to show that it had acquired any vested right under the repelled Act which has not been taken away expressly by the repelling Act. In the said case, the Apex Court considered the right of absorption of the employees working under the contract in view of the provisions of Karnataka Contract Carriage (Acquisition) Act, 1976, which repelled the Ordinance of 1976 with retrospective effect and the Court held that even if there was any vested right of the employees for absorption under the said Ordinance, it had been taken away by the Act and, therefore, Section 6 of the Act, 1897 had no application.
In T. Barai v. Henry Ah Hoe and Anr. : 1983CriLJ164 , the Hon'ble Supreme Court considered the effect of amendment of 1976 in the Prevention of Food Adulteration Act, 1954 and held that in case of a simple repeal, there is scarely any room for expression of a contrary opinion, but when the repeal is followed by fresh legislation on the same subject, the Court must look to the provisions of the New Act for determination as to whether they indicate different intention for the purpose of considering the application of Section 6 of the Act, 1897. While deciding the said case, the Apex Court placed reliance upon its earlier judgment in State of Punjab v. Mohar Singh AIR 1955 SC 84, wherein the Court had elaborately dealt with the effect of repeal and held that the Court must find out whether the New Act has destroyed the 'rights accrued' to a party under the Old Act.
In Commissioner of Income Tax v. Shah Sadiq and Ors. : [1987]166ITR102(SC) , the Hon'ble Supreme Court held that where the accrued and vested rights under the repelled Act are neither expressly saved nor expressly or impliedly taken away by the repealling Act, the same would continue to be effective and enforceable. In the said case, the saving provision was not exhausted of the rights which had been saved or survived, the repeal of the statute under which such rights had accrued.
In Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Ors. : AIR2001SC3580 , the Apex Court held that in order to determine whether the provisions of Section 6 of the Act, 1897 are attracted, the Courts have to scrutinize and find whether a person under the repealled statute had any vested right. The Court further observed that the accrued right in terms of Section 6(c) of the Act, 1897 refers to any right which may not be limited as a vested right but is limited to an accrued right which may be very wide, depending upon the facts and circumstances of a case for the reason that Section 6 covers all kind of rights and privileges embodied from Clauses (a) to (e) of Section 6 and those rights and privileges under it are limited to that which are acquired and accrued.
In Kanaya Ram v. Rajendra Kumar : AIR1985SC371 , the Hon'ble Apex Court held that a mere right to take advantage of the provisions of an Act is not an accrued right. A 'right' comprehences every right known to the law as it includes corporial and incorporial right. 'Right' means an interest duly recognised and protected by law. A mere hope or expectation or liberty to apply for acquiring a right, is not a right accrued.
In Mithilesh Kumari v. Prem Bihari Khare : [1989]177ITR97(SC) , the Hon'ble Supreme Court held that even during pendency of an appeal, if a Statute comes into operation, the Court can take judicial notice of it and given effect to its provisions unless contrary is provided. The Court further observed that where there is a right, there is a remedy, but if the remedy is barred, the right is rendered unenforceable. In this way, the Statute becomes a disabling statute and it may affect indiscriminatory of the persons having such rights. A right is a legally protected interest.
8. The said judgment was not found based on sound reasons and was over-ruled regarding the retrospective application of the provisions of Section 4(1) and 4(2) of the Benami Transaction (Prohibition) Act, 1988, in R. Ra-jagopal Reddy v. P. Chandrashekharan : (1995)124CTR(SC)311 and it was held that the said provisions would apply prospectively and pending suits were saved. Similar view has been reiterated in C. Gangacharan v. C. Narainan AIR 2000 SC 589.
In Gajraj Singh v. State Transport Appellate Tribunal : AIR1997SC412 , the Hon'ble Supreme Court, after considering a large number of judgments, including that of Indian Tobacco Co. Ltd. v. Commercial Taxes Officer : [1975]2SCR612 , held that if the intention in enacting either expressly or by necessary implication in the subsequent statute, was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total pro tanto repeal. The Court further observed as under:
Section 6 of General Clauses Act would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be ascertained from the relevant provisions of the new Act....The object of repeal and re-enactment is to obliterate the Repealed Act to get rid of certain obsolute matters.
In Union of India and Ors. v. Indian Charge Chrome and Anr. : 1999ECR273(SC) , the Supreme Court held that mere pendency of an application does not govern the law applicable and it is the relevant law prevailing on the date of decision-making which has to be applied.
In Anant Gopal Sheorey v. State of Bombay : 1958CriLJ1429 , the Hon'ble Supreme Court held that no person has a vested right in any course of procedure. It is the law and the manner prescribed for the time-being by or for the Court in which the case is pending and if by the Act of the Parliament the mode of procedure is altered, he has no other right other than to proceed according to the altered mode. In other words, the change in law of procedure operates retrospectively and unlike the law relating to vested right, is not only prospective.
In Kolhapur Cane-Sugar Works Ltd. v. Union of India and Ors. : 2000(119)ELT257(SC) , a Constitution Bench of the Hon'ble Supreme Court has categorically held that Section 6 of the General Clauses Act applies to repeals and not to omission and applies when the repeal is of an Act or Regulation and not of a rule, meaning thereby that the provisions are not attracted in case of an omission of a rule and its effect on pending proceedings would depend upon savings applicable. The Court has to look into the provisions of new Act introduced after omission.
9. Thus, in view of the above, it becomes crystal clear that for attracting the provisions of Section 6 of the Act, 1897, a party has to satisfy the Court that an accrued right exists in his favour because of pendency of the lis and that had not been taken away by the New Act expressly or impliedly while repealling the old provision. 'Accrued', as per dictionaries meaning, means' to arise or spring as a natural growth or result; coming as a natural accession or result; arising in due course.' It refers to 'the existence of a present enforceable right' or 'fixed' or 'assessed and determined'. Vide Gobind Ch. Panda v. Darshan Ch. Rout and Ors. : AIR1970Ori15 ; and Mahendra Prasad v. Election Officer : AIR1976Ori1 . The case is required to be examined in view thereof.
10. The amendment in Section 102 of the Code has been made by Section 5 of the Code of Civil Procedure (Amendment) Act, 2002, and the amended provisions read as under:
Section 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 Rs. 25,000/-.
Section 16 of the said Amendment Act, 2002 provides for Repeal and Savings and relevant part thereof is as under:
(1)....
(2) Notwithstanding that the provisions of this Act have come into force or repealed under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act 1897: (a) 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....
11. Thus, it is evident from the aforesaid Clauses that even if there is a right accrued under Section 6 of the Act, 1897, that had been taken away by the Amendment Act, 2002 in those cases where the appeals have not been admitted before the commencement of the Amendment Act, i.e. from 1.7.2002.
12. Thus, it is evident from the aforesaid provisions that the unamended provisions shall be applicable in those appeals which had been admitted prior to 1.7.2002 and where appeals might have been filed/presented in the registry but if not admitted prior to that date, the new provisions will govern the proceedings.
13. If the case in hand is examined from the aforesaid point of view, as the valuation of the subject-matter of the suit was not exceeding Rs. 25,000/ and it did not exceed the said limit and the appeal has been listed first time today in this Court and there is no order of its admission prior to 1.7.2002, i is governed by the Amended Code and the appeal is not maintainable.
14. In view of the above, the appeal deserves to be dismissed as not maintainable. Even otherwise, there are concurrent findings of facts. No substantial question of law is involved. The appeal is dismissed.