Vested right of appeal can be taken away only by a subsequent enactment

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 27th January 2020

Leela Mathew V. Krishna Moorthy (AIR 2003 KER 25)

Facts of the case: 

The suit was filed for realization 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.  The registry has rightly refused to number the case as a second appeal. 

Judgment: 

1. Supreme Court before passing judgment interpreted the amended section 102 of the Civil Procedure Code Amendment Act, 2002. The aforementioned section 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.”

• Supreme Court while passing judgment for this case considered its own judgment given in case of Garikapti V. Subbaih Choudhry^[1] as:
• “That the legal pursuit of a remedy, suit, appeal and Second Appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. 
• The right of appeal is not a mere matter of procedure but is a substantive right.
• 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.
• 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.
• 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.”   
• The question before the Supreme Court was whether there is anything in Amendment Act which takes away plaintiff’s vested right to take matter in second appeal. 
• Section 16 (2) (a) of the Civil Procedure Code Amendment Act, 2002 reads as: 

“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^[2] and Kunnappadi Kalliani v. Lekharaj^[3].

It was held that in view of section 16 (2) (a) of the code of Civil Procedure Code Amendment Act, 2002, the vested right of the plaintiff to file a second appeal where subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees has been taken away on and after the commencement of the Amendment Act. Thus, when suit was for realization of rupees 13,600/- and second appeal was filed on 1-07-2002 on which date the Code of Civil Procedure Amendment Act, 2002 came into force, it was held that the second appeal was not maintainable.       

^[1] AIR 1957 SC 540 

^[2] (1984 KLT 377)

^[3] (1996 (2) KLT 106)