Arthur Wilson, J.

1. Section 170 of the Bengal Tenancy Act VIII of 1885 enactsthat "Sections 278--283 (both inclusive) of the Code of Civil Procedureshall not apply to a tenure or holding attached in execution of a decree forarrears due thereon." This Act became law on the 1st November 1885. Amongthe sections of the Code thus excluded are those under which claims to propertyattached in execution are made. Before the Bengal Tenancy Act came intooperation, a decree for rent was obtained under the Rent Act then in force(Bengal Act VIII of 1869), which Act embodied the provisions of the Code ofCivil Procedure, After the Bengal Tenancy Act became law, the tenancy inrespect of which the rent decreed had become due was attached in execution ofthe decree. The present applicant filed a claim to the property attached, butthe Munsif, in whose Court the proceedings took place, rejected the claim asbeing forbidden by Section 170 of the Bengal Tenancy Act. The question that wehave to consider is, whether Section 170 of that Act applies to the presentcase, and the answer depends upon Section 6 of the General Clauses Act 1 of1868, by which "the repeal of any Statute, Act, or Regulation shall notaffect anything done or any offence committed, or any tine or penalty incurred,or any proceedings commenced before the repealing Act shall have come intooperation."

2. The Courts of this country have frequently had toconsider the effect of legislative change in the law upon proceedingsinstituted before the change was made, and the cases in which they have had todo so, fall, I think, under one or other of three classes.

3. The first class of cases consists of those in which theCourts have had to construe enactments which have altered the law, not by themere repeal of earlier enactments, so as to bring the case under Section 6 ofthe General Clauses Act, but by new affirmative provisions, and in which thenew enactments contain in themselves no special rule for their owninterpretation. In such cases the Courts have applied the settled rule ofconstruction ordinarily acted upon in the absence of any statutory ruleinconsistent with it; and that rule is, that retrospective effect is notordinarily given to an enactment so as to affect substantive rights but thatprovisions affecting mere procedure are applied to pending proceedings. To thisclass belong such cases as Framji Bomanji v. Hosmasji Barjorji 3 Bom. H.C. O.C.49; Lal Mohun Mukerjee v. Jogendra Chunder Boy I.L.R. Cal. 636; Uzir All v.Ramkomal Shahs I.L.R. Cal. 383.

4. The second class of cases comprises those in which theenactment to be construed provides its own rule of construction by expressly orimpliedly declaring that it is or is not to have retrospective operation, orthe extent to which it is to affect pending proceedings. To this class belongMungul Pershad Dichit v. Grija Kant Lahiri I.L.R. Cal. 51, in which the PrivyCouncil construed the Limitation Act, 1871; Tupsee Singh v. Ram Santa Kocri ILRCal. 376, in which a Full Bench of this Court placed a construction uponSection 21 of the Bengal Tenancy Act; and several cases which will beconsidered later in which the Courts have construed Section 3 coupled withother sections of the Civil Procedure Code.

5. The third class of cases consists of those in which thelaw is changed by a mere repeal of a previously existing law, and the repealingenactment contains no special rule for its own interpretation. Such cases aregoverned by Section 6 of the General Clauses Act.

6. The case now before us belongs to the third class, and,for the purpose of deciding it, we have to construe the words in Section 6,which say that the repeal of a Statute "shall not affect any proceedingscommenced" before the repeal takes effect.

7. The word "proceedings" is a very general one,it is not limited to proceedings connected with civil suits, but includes, Isuppose, proceedings other than civil proceedings, and civil proceedings otherthan suits. When applied to suits, it may be used to mean the suit as a whole,or it may be used, and often is used, to express the separate steps taken inthe course of a suit the aggregate of which makes up the suit.

8. I propose first to consider the decisions affecting thequestion before us, and, in doing so, I shall have to notice some which did notdepend upon the construction of the General Clauses Act, but which have a moreor less close bearing upon the question before us.

9. In Mungal Pershad Dichit v. Grija Kant Lahiri I.L.R. Cal.51, the question was whether an application for execution was governed, inrespect of limitation, by the Limitation Act of 1859, or that of 1871, and thePrivy Council held that an application for execution is an application in the suit,and that, therefore, a provision in the later Act excepting from its operation"suits" commenced before a certain date, applied to proceedings inexecution in such suits.

10. The remaining cases which have to be considered may beconveniently divided into three groups. The first consists of cases relating toappeals under various acts, and were all decided simply upon the constructionof the General Clauses Act. Of these cases the earliest in date is RatanchandSrichand v. Hanmantrao Shivbakas 6 Bom. H.C.A.C. 166 before Couch, C.J., andthree other Judges of the Bombay Court. It was held by them that the repeal ofan Act, under which an appeal lay against a decree, did not bar the appeal in acase in which the decree was passed before, but the appeal presented after therepealing Act. The ground of the decision is thus stated at page 169: "Asuit is a judicial proceeding, and the word proceeding must be taken toinclude all the proceedings in the suit from the date of its institution to itsfinal disposal, and, therefore, to include proceedings in appeal."

11. The case of Thakur Prasad v. Ahsan Ali I.L.R All. 668.before the Full Bench of the Allahabad High Court only bears upon the questionbefore us, in that it is an authority for the proposition that, under Section 6of the General Clauses Act, an appeal is a part of the same proceedings as thething appealed against.

12. In Syed Mahomed Hossein v. Hadji Abdullah I.L.R. Cal.727, a case decided on the Registration Acts, 1871 and 1877, it was held thatthe repeal of an Act which forbade an appeal did not give an appeal against anorder made before the repeal.

13. Similarly in Hurrosundan Dabi v. Bhojohari Das ManjiI.L.R. Cal. 86 it was held that "proceedings" in Section 6 of theGeneral Clauses Act include an appeal against a decree, and that, therefore,the repeal of a section forbidding an appeal did not give an appeal against adecree in a suit brought before the repealing Act came into operation, and thesame thing was held in Satghuri v. Mujidan I.L.R. Cal. 107.

14. The second group of cases relate to execution, and mostof them were decided on the construction of the General Clauses Act.

15. In the case of Shumbhochunder Holder (Bourke, O.C. 59),the decision turned upon the construction of Section 12 of the High CourtsAct, 24 and 25 Vict., cap. 104. That section runs: "From and after theabolition of the Courts abolished as aforesaid in any of the said Presidencies,the High Court of the same Presidency shall have jurisdiction over all proceedingspending in such abolished Courts at the time of the abolition thereof, and suchproceedings, and all previous proceedings in the said last-mentioned Courts,shall be dealt with as if the same had been had in the said High Court, savethat any such proceedings may be continued as nearly as circumstances permitunder and according to the practice of the abolished Courts respectively."This provision so far as it keeps alive the practice of the abolished Courts inpending cases, is exactly analogous in character to the enactment that we haveto construe, and the expression "pending proceedings" cannot, Ithink, be distinguished in meaning from "proceedings commenced."

16. The matter came before the Court, consisting of Peacock,C.J., and Morgan and Phear, JJ., in this way: Three persons had been arrestedin execution under writs issued from the High Court similar in form to thewrits of Ca. Sa. in use in the Supreme Court, and they were brought up byhabeas corpus and claimed to be discharged on the ground that their detentionwas illegal, If turned out according to the view that ultimately prevailed thatthe legality or illegality of the custody of each man depended upon whether theprocedure in force in the Supreme Court or that of the High Court was to befollowed. It is only necessary to notice the case of one of the prisoners-Shumbhoochunder Holder. With regard to him, all the Judges agreed, though notwithout some doubt on the part of Phear, J., that his case was governed by theold law, on the ground that the decree against him had been obtained andexecution proceedings instituted against him in the Supreme Court before itsabolition, and that the proceedings then before the Court were under thecircumstances a continuation of those earlier execution proceedings. A seriesof cases have arisen upon the Limitation Act, 1877. In Behary Lall v. GoberdhunLall I.L.R. Cal. 446, Mitter and Norris, JJ., dealing with the effect of thatAct upon the execution of decrees passed before it came into operation, heldthat by reason of Section 6 of the General Clauses Act, the provisions of theprevious law remained unaffected. In Gurupadapa Basapa v. VirbhadrapaIrsangappa I.L.R. Bom. 459, the plaintiff obtained a decree before theLimitation Act of 1877 was passed. After the passing of that Act, he made anapplication, which, under the former law, would have had the effect of keepingthe decree in force for the purpose of execution, but which, under the latterAct, had not that effect. It was held that a subsequent application forexecution was barred. West, J., in delivering judgment, said: "In the casequoted-Behary Lall v. Goberdhun Lall-proceedings are identified with suit;but we think that where a decree has been obtained, the application for executioninitiates a new set of proceedings-see Andrews v. Mams 1 Q.B. 3 - and that,therefore, the rule of the General Clauses Act (I of 1868) is not to be held togovern all the remotest ministerial consequences of a suit arising onapplications made years afterwards according to the procedure in force at itsinstitution, but only to bring under the same law such series of proceedings asgroup themselves naturally together, as e.g., those on a particular applicationfor execution." The same question again came before Mitter and Norris,JJ., in Jugmohun Mahto v. Luchmeshur Singh I.L.R. Cal. 748, and the learnedJudges differed from their previous opinion. Mitter, J., said: "As toproceedings being identical with suit, it seems to me that we held thatproposition to be correct on the authority of the Privy Council decision inMungul Pershad Dichits case; and after hearing arguments in this case, andafter considering the judgment quoted, I still adhere to that opinion, viz.,that an application for execution of a decree is an application in the suitwhich resulted in the decree. That was distinctly held in Mungul PershadDichits case, and we are bound by that decision. But at the same time it seemsto me that, although it is an application in that suit, it may not be anapplication in a pending proceeding. The suit having matured into a decreecould not properly be said to be pending thereafter. A proceeding to be apending proceeding after a decree must be initiated by an application forexecution. But after a suit terminates in a decree, if nothing further is done,it cannot be said to be a pending proceeding. It is on that ground that I thinkwe were not right in the decision in Behary Lall v. Goberdhun LallI.L.R. Cal.446." A similar view was taken by Prinsep and Macpherson, JJ., in BecharamDutta v. Abdul Wahed I.L.R. Cal. 55.

17. In a case cited in the order of reference, it was heldthat Section 170 of the Bengal Tenancy Act applies so as to exclude a claim inan execution after the Act came into operation, though I presume the decree wasbefore that date.

18. In Shivram Udram v. Kondiba Muktaji I.L.R. Bom. 340,West and Haridas, JJ., held, if the case is to be regarded as a decision on theGeneral Clauses Act, that where property has been attached in execution anapplication by the attaching creditor for sale of the property is a newproceeding. Perhaps, however, this case ought rather to be regarded as havingbeen decided on the other grounds pointed out in the judgment.

19. The third group consists of cases decided with respectto the Civil Procedure Code, and almost all of them were expressly decided, notupon the General Clauses Act, but upon that Act together with and modified bythe special rules of construction laid down in the Civil Procedure Code. Thefirst of these is In re Ratansi Kalianji I.L.R. Bom. 148 before Westropp, C.J.,and four other Judges. The point decided was that a judgment-debtor imprisonedin execution under the Civil Procedure Code of 1859, and who had been in prisonfor six months, was not entitled to be released on the passing of the Code of1877, which reduced the period of imprisonment for debt to six months. Thedecision turns upon the construction of the Procedure Code itself, whichcontained rules of construction different from those of the General ClausesAct, and I do not find that any of the learned Judges expressed an opinion asto what the effect of the General Clauses Act upon the case would have been ifthe special rules of the Procedure Code had not been present to control it,except Green, J., who cites Ratanchand Shrichand v. Hanmantrao Shivbakas 6 Bom.H.C. A.C. 166 and is disposed to regard proceedings as applying to suits"including execution and appeal."

20. In Chinto Joshi v. Krishnaji Narayan I.L.R. Bom. 214, anapplication made after the repeal of the Procedure Code of 1859 to set aside asale made in execution proceedings commenced under that Act was held to begoverned by the repealed Act. The question whether execution is a part of thesame proceedings as the suit within the meaning of Section 6 of the GeneralClauses Act, did not arise; and if I rightly follow the judgment of West, J.,he intentionally guarded himself against expressing an opinion upon anyquestion of so general a character; but he suggested a test when he said thatthe proceeding before the Court was "so intimately connected with theproceedings in execution that it ought properly to be regarded as a part ofthose proceedings." In suggesting that test, I think it is only reasonableto suppose that the learned Judge had in view, not merely the General ClausesAct, but the General Clauses Act modified by Section 3 and other sections ofthe Procedure Code, in the manner which had been explained in In re RatansiKalianji I.L.R. Bom. 148.

21. In Runjit Singh v. Meherban Koer I.L.R. Cal. 663 the questionfor consideration related to cases in which, under the Procedure Code of 1859,an appeal to this Court was allowed, but in which the Act of 1877, ifapplicable, did not allow them, and in which the suits were instituted beforethe change in the law, but the appeals were presented after it. The Judges wereunanimous in holding that the appeals lay. Garth, C.J., accepted to the fullthe ruling of the Bombay Court in Ratanchand Srichand v. Hanmantrao Shivbakas 6Bom. H.C. A.C. 166 that the word "proceedings" in Section 6 of theGeneral Clauses Act includes the whole of a suit; and expressed the opinionthat there was nothing in the Code itself to exclude that view. I thinkJackson, J.s view is the same. The other learned Judges-Markby, Mitter andAinslie-decided the case on other grounds and guarded against expressing anopinion on this point.

22. In Rustomji Burjorji v. Virbhadrapa Irsangapa [KessowjiNaik] I.L.R. Bom. 287, a case depending, not upon the General Clauses Act, butupon Section 3 and other sections of the Civil Procedure Code, Sargent, C.J.,and Haridas, J., accepted the teat suggested by West, J., in Chinto Joshi v.Krishnaji Navayan already cited, for determining the identity of proceedings.

23. As to the first of the groups of cases just treated of,those relating to appeals, there is, I think, a completely uniform course ofdecision to the effect that an appeal is a part of the same proceedings withinthe meaning of Section 6 of the General Clauses Act, as the thing appealedagainst, and that therefore if the thing appealed against is a decree in asuit, the appeal is a part of the same proceeding as the earlier steps in thesuit. These decisions are, I think, too numerous, passed by too many Courts,and spread over too long a time for us to be justified in questioning them. AndI do not see how they can be logically supported upon any ground narrower thanthat assigned in the first case in the series, namely, that"proceedings" in Section 6 of the General Clauses Act. when appliedto a suit, means the whole suit; and it would seem to follow that theproceedings, in the sense of the suit, must include execution, which isundoubtedly a step in the suit.

24. On the other hand, it is always dangerous in matterslike that before us to reason too confidently from general propositions. Therecan be no doubt that a thing may be a step in the suit, and may yet well beregarded as a proceeding separate from the other steps in the suit. And inenquiring whether execution should be so regarded, we may, I think, bejustified in looking outside the General Clauses Act. It is not an Actregulating procedure; that is the object of another class of Acts. In this Act,therefore, we may well understand "proceedings" in the sense ofproceedings as defined and regulated by the law for the time being in forcegoverning procedure with regard to any given subject-matter. As to suits underthe Bengal Tenancy Act, the Civil Procedure Code generally applies; and theCivil Procedure Code has to some extent divided the whole proceedings in a suitinto separate proceedings. There is nothing in itself unreasonable in holdingthat execution is such a separate proceeding, and there is this distinctionbetween appeals and executions; that an appeal is of necessity a proceedingbetween the same parties as the matter appealed against; whereas, proceedingsarising in execution may be, and in the case be fore us are, between one ofthose parties and a stranger to the suit.

25. The second group of cases, those relating to execution,are all to the effect that execution is to be regarded as a separate proceedingfrom the previous steps in the suit. With regard to the cases in Bombay and inthis Court, upon the Limitation Act as affecting execution proceedings,Gurupadapa Basapa v. Virbhadrapa Irsangapa I.L.R. Bom. 489, and Jugmohun Mahtov. Luchmeshur Singh I.L.R. Cal. 748, I have no doubt (if I may say so with duedeference) that upon any view of the present question they were rightly decidedon the ground that the General Clauses Act, Section 6, did not apply. If thetrue view be that the word "proceedings" in that section does notembrace the whole suit so as to include execution, then it is clear that theresult was right. If the other view of the meaning of "proceedings"should prevail, I still think that Section 6 would not apply to the cases inquestion, because I think the operation of the section ought to be limited tothe cases in which a change in the law is strictly the result of the repeal ofan enactment, not of substantive enactment in the new legislation. And I shouldbe disposed to say that the rules of law to which effect was given in the casesof which I am speaking, became such, not by the repeal of the old law, but bythe substantive enactments of the new. The fact, however, remains that thefirst of these grounds and not the second was the one actually taken by thelearned Judges who decided the cases: and they are, therefore, authorities forthe narrower construction of the word "proceedings," and for holdingthat an application for execution initiates proceedings separate from thosewhich resulted in the decree. The rule upon which In re Shumbhoo Chunder HolderBourke C.C. 59 was decided lends strong confirmation to this view.

26. Of the last group of cases, those decided upon the CivilProcedure Code, all but one were distinctly based upon the terms of the Codeitself, not merely upon the General Clauses Act. The one exception is RunjitSingh v. Meherban Koer I.L.R. Cal. 663, in which Garth, C.J., considered thatthere was nothing in the then Code of Civil Procedure to modify the effect ofthe General Clauses Act. The word upon which he based that view has beenchanged in the subsequent Acts. But the opinion of Garth, C.J., remains thatthe word "proceedings" applies to a suit in its entirety. There isthe opinion of Green, J., in In re Ratansi Kalianji I.L.R.Bom. 148 to the sameeffect. On the other hand, there is the view stated by West, J., in the casescited with some support from Sargent, C.J., in Rustomji Burjorji v. KessowjiNaik I.L.R. Bom. 287.

27. Upon a consideration of the authorities, the result, inmy opinion, is that whether the two currents of decision, that relating toappeals and that relating to execution, can or cannot be explained upon groundslogically satisfactory, we must accept them; and I should, therefore, answerthe question referred to us,-the first in the affirmative, the second in thenegative. The rule will be discharged with costs.

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Deb Narain Dutt vs. Narendra Krishna and Ors. (09.02.1889 -CALHC)