MODI, J. -
(1.)THE question for determination in this appeal is whether this appeal alone must stand abated under sec. 5 (2) (i) of the Rajasthan Zamindari and Biswedari Aboliton Act, 1959 (Act. No. 8 of 1959) (hereinafter called the Act of 1959) read with the Rajasthan Zamindari and Biswedari Abolition Rules, 1959 (hereinafter called the Rules), or the entire suit out of which this appeal has arisen must abate.
(2.)THE appellants before me were the defendants in the suit. THE plaintiffs instituted this suit for specific performance of an agreement to transfer certain land to them which, as alleged, had been entered into between the parties on the 10th June, 1955. Both courts below have decreed the suit. THE decree of the lower court of appeal is dated the 14th August, 1959-THE present appeal was filed in this court on the 19th Nov. 1959. In the meantime the Act of 1959 came into force on the 1st Nov. , 1959. It is no; disputed before me that the land with reference to which this litigation has arisen being situated in the Gang Canal Area falls within the mischief of the Act of 1959. It is also conceded that under cl. (1) of sec. 5 (2) of the Act of 1959, the present appeal was rightly stayed by an order of this Court dated the 12th May, 1960. THE further question which has been strenuously canvassed at the bar of this Court is whether this appeal was competent at all and, therefore, should be dismissed as in-fructuous, or whether the entire suit out of which this appeal has arisen must be ordered to have abated.
Cl. (1) of Sec. 5 (2) of the Act of 1959 is in these terms: - "subject to any rules made in this behalf, all suits and proceedings relating to such estate pending in any court, civil or revenue, at the date of vesting, and all proceedings consequent upon any decree or order passed in any such suit or proceeding before such date, shall be stayed. " The argument of learned counsel for the respondents is that sec. 5 (2) (i) of the Act pertains to suits and proceedings pending in any civil court at the date of the vesting of the land in the Government and to all proceedings consequent upon any decree or order passed in any suit or proceeding before such date, and that the expression "all proceedings consequent upon any decree or order passed in any such suits or proceeding" refers only to execution and not to appeals or revision or the like. It is, therefore, contended that the present appeal which was not pending in any court at the date of the vesting orders cannot be governed by this cl. and that the real position is that this appeal could not have been filed at all as a consequence of the abolition of all Zamindari and Biswedari estates in Raj. by the Act of 1959, this Act having come into force before the present appeal was filed on the 19th Nov. , 1959, and the vesting order by which the land in suit stood transferred to the Government free from all encumbrances have been passed earlier on the 15th Nov. , 1959.
On a careful consideration of the whole matter, I have come to the conclusion that the contention of learned counsel for the respondents is without any substance. Let me in this connection refer to my own decision in Sheo Narain Vs. Shankar (1) where I had occasion to consider the combined effect of cl. (1) of sec. 5 (2) of the Act of 1959 and rule 5 of the Rules. What I held there was this: - "what therefore, abates is not merely the appeal or the revision in a suit or proceeding when the same may have been pending and stayed, but the entire suit or proceeding itself at whatever stage it may be, that is, whether it may be pending in the court of first instance or it may be at the stage of an appeal or a revision. " I had earlier stated in the course of the same judgment that the suit (or proceeding) and appeal or revision had not been used in alternation in the rule. I, therefore, concluded that - "the intention of the Legislature, therefore, manifestly is that the entire suit or proceeding must be abated and not merely the appeal or the revision which may be pending at the relevant time, that is, at the time of the vesting of the estate in the Government, and the parties are relegated to the original position which they occupied at the time of the institution of the suit or the proceeding as the case may be. I have no doubt that if the Legislature meant otherwise, there was nothing to prevent it from saying so clearly and this Court can only interpret what it has said. I should also like to add that I can see no justification for putting any other meaning on the rule in view of its plain language, the more so as it is perfectly intelligible and I see no ambiguity or obscurity about it. I, therefore, hold that it is the suit which should be held to have abated and not merely the appeal which is at present, pending, on a proper interpretation of R. 5 of the Rules. " At this stage, I may quote rule 5 of the Rules also: "every suit or proceeding, whether pending in the court of first instance or in appeal or on revision, stayed under cl. (1) of sub-sec. (2) of sec. 5 of the Act shall be abated by the court or the authority before which it may be pending after giving notice to the parties and giving them an opportunity of being heard. " On my conveying to learned counsel that I was bound by the principle of my aforesaid decision in deciding the present case, he sought to distinguish it on two grounds. The first was that in Sheo Narain's case (1), the appeal was actually pending in this Court at the time the Government issued the, vesting order where as in present case the appeal has been filed after the vesting order was made. The second contention is that R. 5 of the Rules in so far as it contemplates the abatement of the entire suit goes beyond the Act, and is, therefore, invalid and must be struck down. I shall deal with both these points in order.
So far as the first point is concerned, it is true that the present appeal was filed after the vesting order dated the 15th Nov. , 1959, Was made by the State Government. That, however, in my considered opinion, does not and cannot lead to the conclusion that the present appeal was incompetent. A right of appeal, it is well settled, is a vested right and accrues to a litigant at the commencement of the suit and this right cannot be taken away save by an express command of the Legislature or by necessary implication. That save for the present Act the appellants would have had a right of appeal to this Court is not denied even by the respondents. The question, therefore, is whether there is anything in the Act of 1959 which takes away the defendants' vested right of appeal. The Act contains no express provision in the matter, and there is hardly anything therein to lead one to the conclusion that the right of appeal has been taken away by necessary implication. This appeal, therefore, is competent and cannot be thrown out as infructuous.
The question still remains to consider is whether an appeal like this falls within the four walls of sec. s (2) (i) of the Act of 1959. The language of this cl. is by no means feli-citous,but at the same time it seems to me to clearly apply not only to all suits and proceedings which expressions also include any appeal or revision pending in any civil or revenue court at the date of vesting but also to any appeals or revisions which may have arisen out of a suit or proceeding which may have been decided before the order of vesting but in which an appeal or revision may come to be filed after the date of vesting. The expression "all proceedings consequent upon any decree or order passed in any such suit or proceeding or proceedings is very comprehensive indeed, and, on a balance of all relevant considerations, seems to me to embrace not merely executions of decrees as proceedings consequent upon a decree or order but also covers appeals or revisions, as the case may be, instituted against decree or orders which may have been passed before this Act was brought into force or the vesting order was made but which may happen to be filed afterwards. Any other interpretation of the clause under consideration would lead to a very anomalous result inasmuch as there is no separate provision in the Act for the staying of such appeals or revisions and therefore, these may have to be proceeded with for a decision on the merits. I further think that this interpretation is the right ore to adopt having regard to the language of R. 5 also. It is important to remember in the present case that the Act of 1959 and the rules were brought into force simultaneously, and that being so, the proper interpretation 10 adopt should be one which would harmonise the relevant provisions of the Act and the Rules and not the one which would lead to a conflict between the two in so far as such conflict can be avoided. As 1 have pointed out in Sheo Narain's case (1), what has to be abated where a litigation falls within the mischief of the Act of 1959 is a suit or proceeding whether pending in the court of first instance or in appeal or revision. The language of the rule is explicit. It speaks not merely of a suit or proceeding in the original court, but it also speaks of it as pending in appeal or revision. This language clearly connotes, to my mind, that the Legislature wished to treat the appeal or revision as a continuation of the suit and, therefore, I feel strongly disposed to put a wider meaning on the expression "all proceedings consequent upon any decree or order passed in any such suit or proceeding" as used in clause (1) of sec. 5 (2) as discussed above. It is well-known in our system of administration of justice that an appeal is nothing but a continuation of the suit and not an independent proceeding. Viewed in this perspective, the combined effect of cl. (1) of sec. 5 (2) of the Act of 1959 and R. 5 of the Rules inevitably is that it is the entire suit which must stand abated and not merely the appeal or revision, and I hold accordingly.
As for the argument that rule 5 goes beyond the provision contained in sec. 5 of the Act of 1959 and is therefore invalid, I need only say this much that on the interpretation of this section which I have felt persuaded to accept above, the section and the rule will stand in perfect harmony with each other and present no difficulty whatever. I, therefore, see no force in this contention either and hereby overrule it.
In conclusion I should like to add that any other interpretation of these provisions would not, to my mind, lead to any fruitful result. Thus, if I were to accept the legal position propounded by learned counsel for the respondents and were to hold that it is only the appeal which either becomes infructuous or must be held to have abated and not the suit and that the latter still remains alive, then the question at once arises, would the decree of the court below remain in tact and effective. The only sensible answer to this question that can be returned on the relevant provisions of the Act of 1959 is that the decree is of no difficulty or legal force whatever. That being so, I do not understand what real objective can be gained by upholding the interpretation that in the type of case which is before me here or in the type of Sheo Narain's case (1) which I had occasion to decide earlier, what abates really is the appeal and not the entire suit.
For the reasons mentioned above, I come to the conclusion that this appeal having been stayed under clause (1) of sec. 5 (2) of the Act of 1959, the entire suit out of which it arises must stand abated. This appeal accordingly fails and is hereby dismissed. As this position has arisen owing to a supervening act of the Legislature, I would leave parties to bear their own costs throughout. .