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Judgment
Ramakrishnan, J.—This writ petition is directed against the order of the learned District Judge of Ramanathapuram in O.P. No 25 of 1964
filed under S. 96 of the Co-operative Societies Act of 1961. The prior facts necessary for the disposal of the writ petition are briefly the following.
Radha Bai, the second respondent herein, was one of the several persons who had claims against the Sivaganga Co-operative Urban Bank for
moneys due to her. The Bank went into liquidation. The Special Officer in charge of the Bank filed suits before the deputy Registrar purporting to
be under S. 42 as well as S. 51 (1) (o) of the 1932 Act, for declaring the amounts to Radha Bai and other persons. A decision was given on the
prior occasion and that came up for consideration before this court in V. Sundaram Iyer Vs. Deputy Registrar of Co-operative Societies and
Others, . The learned Judges of the Bench held that matter required fresh enquiry and remanded the matter. They also clearly stated at page 619 of
the report that though the suits were filed under S. 49 and S. 51 of the Act, they had been filed under S. 49 and the Registrar should proceed with
them as plaints filed under S. 51 of the Act. The case of Radha Bai was also one of the cases, thus included in the Judgment of the Bench. The
matter came again before the Deputy Registrar and he passed an order on 27th July 1963 settling the claim of Radha Bai at Rs. 2472. Radha Bai
was arrived against the quantum of the amount, and wanted a higher amount of Rs. 4182 and odd. The new Co-operative Societies Act of 1961
came into force with effect from a subsequent date as notified, namely, 2nd October, 1963. Radha Bai treated the order of the Deputy Registrar
as one under S. 49 of the old Act, within corresponds to Sec. 71 of the new Act, for which a right of appeal is provided in the new Act to the Co-
operative Tribunal (District Judge) under S. 96 of the new Act, and filed an appeal before the District Judge. The District Judge took this appeal of
Radha Bai on file in the original petition mentioned. Before him a preliminary objection was raised by the special Officer, the petitioner herein, that
the petition was not maintainable for two reasons. One was that under the old Act of 1932, which was the Act applicable, when the proceedings
were initiated, there was no right of appeal to the District Court in the case of orders passed under S. 51 of the old Act. Only in the case of orders
passed under S. 49 of the old Act, there was a tight of appeal provided to the District Court. Secondly at the time when the order of the Deputy
Registrar was passed on 27th July 1963, the new Act had not come into force and therefore, Radha Bai could have no remedy by way of appeal
under S. 96 of the new Act, against an order passed before the new Act came into force.
The District Judge in his order unfortunately has committed two errors of fact. The first error is in his assumption that the suit was filed under S.
40 of the old Act ignoring the clear direction of the Bench of this court in the judgment above mentioned. The second error was the assumption
that the order of the Deputy Registrar was passed at a time when the new Act had come into force and that therefore an appeal lay to the District
Judge under S. 96 of the new Act.
As against these findings of the learned District Judge, it is pointed out first of all by the learned Counsel for the petitioner that the new Act came
into force on 2nd October, 1963, and this fact is not denied by the opposite party. The second point urged by him is the well-known principle laid
down in Garikapati Veeraya v. Subbiah Choudry (1957) 2 M.L.J. 1 that for the purpose of the right of appeal that one has to look to is the law
that is in force at the time when the proceedings are initiated and the aggrieved party has a vested right in such right of appeal according to the law
prevalent at the time of the (sic) situation. This vested right cannot be taken away by any subsequent enactment. Another valid principle in this
connection, is the one laid down by the Privy Council in its decision in the Delhi Cloth and General Mills Co. Ltd. v. income tax Commissioner,
Delhi 53 M.L.J 819 that the opposite party can claim finality in such matters, if an aggrieved party has not filed an appeal within the prescribed time
under the law in force at the time when the proceedings were initiated, and that such right of the opposite party to claim finality in regard to matters
decided under an earlier Act cannot be reopened by the aggrieved party by seeking support under the provisions of a later enactment. At page
823 of the report, the Privy Council has expressed its view thus:--
The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar
Refining Co. v. Irving 1905 A.C. 369 where it is in effect laid down, that, while provisions of a statute dealing merely with matters of procedure
may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in
existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their
Lordships can have no doubt that provisions, which if applied retrospectively would deprive of their existing finality orders which, when the statute
came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the
date when it came into force, it must be clearly so provided.
Applying the above principles to this case, it is clear that Radha Bai is net entitled to rely upon the provisions of the 1961 Act for moving the
District Judge under S. 96 of that Act, in regard to a matter which had become final before the new Act came into force on 2nd October, 1963.
Under the old Act in force at the time both when the proceedings were initiated and when the Deputy Registrar passed his award, there was no
right to a party to approach the District Court for relief in appeal, where as in this case the matter had been decided under S. 51 of the old Act.
The opposite party could therefore claim finality for the decision, when the new Act came into force.
Learned Counsel Sri Sundara Iyer appearing for the respondent has referred to the fact that when the special officer initiated the proceeding by
a suit before the Deputy Registrar, be had referred to both Ss. 49 and 51 of the old Act and in such a case it is not the substance of the matter that
is material, but the form of the order should be looked into, for deciding the right of an aggrieved party in matters of appeal. He referred to a
decision of a Bench of this court in Roman Nambiar v. Raviram Namam 57 Mad. 777 of Jackson and Butler, JJ. The learned Judges observed:
......it would be a very dangerous analogy to deny a party the right of appeal on the ground that only the substance and not the form can be looked.
As against this argument, it has to be pointed out that there is no room at all for entertaining a doubt in regard to the substance or the form of the
order of the Deputy Registrar in this case. Assuming that at the time when the suit was filed, the special officer had a doubt as to whether he had
seek relief under S. 49 or S. 51, that doubt was clearly set at rest by the Bench of this court in the decision in Sundar Iyer v. Dy. Registrar of Co-
operative Societies 57 Mad. 777 where the learned Judges examined at length the scope of both Ss. 49 and 51, applied the principles of the law
to the facts of the present case, and expressed their view that the claim of Radha Bai against the Bank under liquidation was to be adjudged under
S. 51 and not under S. 49. In the subsequent order of the Deputy Registrar which was brought before the District Judge in the appeal, now under
consideration that officer had clearly referred to the direction of the High Court in the Bench decision above mentioned in the preamble. He has
made it clear that ha was acting under the directions of the High Court and was dealing with the matter under S. 51 of the Act. Therefore, there is
no scope at all for applying the principles laid down in the decision in Roman Nambiar v. Raviram Namam 57 Mad. 777 . It will thus appear from
the foregoing discussion that the view of the District Judge about the maintainability of the petition before him under S. 96 of the 1961 Act is clearly
wrong and opposed to law. The writ petition is allowed as prayed for. No order as to costs.