An impairment of the right of appeal by imposing a more stringent or onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.

Judgment

S. K. DAS, J. : These two consolidated appeals arise out of the judgment and order of the High Court of Bombay dated 24-11-1954*, passed on two applications in two appeals disposed of by the said High Court. The facts are similar and the question of law arising therefrom is one and the same, namely, whether in the absence of provisions giving retrospective effect to certain amendments made in the Court-fees Act 1870 as applied to Bombay by the Court-fees (Bombay Amendment) Act, 1954 (Bombay Act No. 12 of 1954) which amendments came into force on 1-4-1954, hereinafter called the relevant date, the court-fees payable on two memoranda of appeal were payable according to the law in force at the date of filling of the suits which was prior to the relevant date, or according to the law in force at the date of the filing of the memoranda of appeal which was after the relevant date.

* Reported in (S) AIR 1955 Bom 332.

2. The facts are simple and may be very shortly stated. On 16-4-1953, Messrs. Sawaldas Madhavdas brought a suit against the Arati Cotton Mills, Ltd., praying for a decree for rupees two lacs and odd. The suit was decreed on 22-7-1954. The Arati Cotton Mills, Ltd., filed a memorandum of appeal against the said decree on 4-9-1954, and paid court-fees of Rs. 3,193-12-0 on the said memorandum. On or about 5-10-1954, a settlement was arrived at between the parties and on 9-10-1954, a prayer was made for dismissal of the appeal for want of prosecution. On 18-11-1954, an application was made under S. 151 C. P. C., by the Arati Cotton Mills, Ltd., for refund of excess court-fees paid on the memorandum of appeal. In the application it was stated:

"The appellants say that the appeal having arisen out of a suit which had been instituted on or about 16th April, 1953, long prior to the coming into force of the Court Fees (Bombay Amendment) Act XII of 1954 no court-fees were payable on the memorandum of appeal herein except as provided in the Table of fees hereinafter mentioned and that it was due to a mistake that the appellants were called upon to pay the said institution fee amounting to Rs. 3,193-12-0 and the said sum was paid by the appellants under a bona fide mistake and/or inadvertence and/or oversight. The appellants say that the only fee payable for the filing of the said memorandum of appeal was the fee of Rs. 32 under item No. 58 of the table of fees set out at page 396 of the Rules of this Court. The appellants say that they were not legally bound to pay anything more than the said sum of Rs. 32 and that sum of Rs. 3,161-12-0 paid by them in excess of the said sum of Rs. 32 was paid by mistake and ignorance of the appellants legal rights and/or through inadvertence or oversight. The appellants submit that it is necessary for the ends of justice that the said sum of Rs. 3,161-12-0 should be ordered to be refunded to them."

3. Similarly, on December 17, 1953, Messrs. Rasiklal and Company, Limited brought a suit against Messrs. Supreme General Films Exchange Limited and two other defendants in which a decree was passed on May 11, 1954, for a sum of Rs. 44,876-12-0 against Messrs. Supreme General Films Exchange Limited. The latter filed a memorandum of appeal on July 31, 1954, and paid court-fees of Rs. 1,958 on it. The appeal was, however, withdrawn with the leave of the High Court on September 27, 1954. Messrs. Supreme General Films Exchange Limited then applied for refund of the excess court-fees paid on a ground similar to that mentioned earlier in connexion with the application of the Arati Cotton Mills, Limited.

4. Both the applications were heard together after issue of notice to the Advocate General. Bombay who appeared for the State of Bombay and opposed the applications. By its judgment and order dated November 24, 1954*, the High Court allowed the applications. The State of Bombay then asked for and obtained a certificate in the two cases which were consolidated to the effect that they were fit for appeal to th