A fresh suit cannot be instituted on the basis of a decree passed in a suit pending on the 'appointed day', as it is barred by Article 4(3) of the Indian Independence (Legal Proceedings) Order, 1947, and Section 9 of the Civil Procedure Code.

( 1 ) THIS is an appeal against an order passed under Section 47, Civil P. C. The decree-holders are the appellants before us. By the said order it was held that the decree which was passed was without jurisdiction.

( 2 ) THE facts leading up to this appeal are as follows: Originally a suit was brought in the court of the Munsif at Chandpur by the appellants on the allegation that out of 51 bundles of tobacco booked from Shampur station on the A. B. Railway to Chandpur station on the same Railway only 14 bundles were delivered. The claim was made against the then Governor-General in Council of India. The said suit was filed before August 1947, before the date on which partition of India took place. While the said suit was pending the partition of India was effected and thereafter a decree was obtained from the said court by the appeilanta on 18-5-1948. By the said decree the defendant was given three months' time to pay all the decretal dues. The payment of the decretal amount not having been made a notice under Section 80, Civil P. C. was served on the Union of India and thereafter a suit being Money Suit No. 10 of 1949 was brought in the court of the Sixth Subordinate Judge, Alipore. The said suit was filed on 3-5-1949 and an ex) parte decree was passed in the said suit on 22-8-1949. I should have mentioned that the decree in question was obtained on the judgment which had been delivered by the First Court of the Munsif at Chandpur in the previous suit. Thereafter an execution proceeding was started for the realisation of the said decretal amount. An objection under Section 47, Civil P. C. was filed by the Union of India in the said execution proceedings. The application under Section 47 of the Code was dismissed by the Subordinate Judge, 1st Court, Alipore. There was an appeal against the said order and the lower Appellate Court held that the court which passed the decree in Money Suit No. 10 of 1949 had no jurisdiction to pass the same and therefore the execution proceedings cannot proceed and he allowed the application made under Section 47, Civil P. C. It is against that order that the present appeal has been preferred.

( 3 ) THE learned Advocate for the appellants contended before us that the view taken by the learned Additional District Judge was entirely wrong. In order to determine whether or not the view taken by the lower court is correct it would be necessary to refer to certain provisions of the Indian Independence (Legal Proceedings) Order, 1947 and of the Indian Independence (Rights, Property and Liabilities) Order, 1947. The relevant article of the Indian Independence (Legal Proceedings) Order, 1947 is Article 4 which runs as follows:"4. Notwithstanding the creation of certain, new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947,-- (1) all proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in the Province of Bengal, the Punjab or Assam shall be continued in that court as if the said Act had not been passed, and that court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day; (2) any appeal or application for revision in respect of any proceedings so pending in any such, court shall lie in the court which would have appellate, or as the case may be revisional jurisdiction over that if the proceeding were instituted in that court after the appointed day; and (3) effect shall be given within the territories of either of the two Dominions to any judgment, decree, order or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction within that Dominion". The material provisions of the Indian independence (Rights, Property and Liabilities) Order, 1947 are contained in Articles 8 and 12 of the