A right of appeal is a vested or substantive right and cannot be taken away except by an express enactment or necessary intendment.

( 1 ) THIS matter has been referred to a larger Bench by the Division Bench consisting of Pradyot Banerjee and G. N. Ray, JJ. by an order made on the 23rd Nov. , 1977. The question is whether the Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act being Act XXVI of 1969 is retrospective in operation. In an unreported decision of a Division Bench of this Court it was held that the amendment Act was not retrospective. This decision was pronounced on the 3rd Dec. , 1976 but certain earlier Division Bench decisions were not considered. In the earlier decisions similar amendment Acts were held to be retrospective. Banerjee and Ray JJ. were inclined to agree with the earlier decisions. That is why, the present reference has been made.

( 2 ) LET us first discuss the relevant facts. The Bengal, Agra and Assam Civil Courts Act was passed in 1887. Before 1957, Section 21 (1) of this Act ran thus :"section 21. Appeals from Subordinate Judges and Munsiffs.-- (1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie- (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees, and (b) to the High Court in any other case. "

( 3 ) IN 1957 by the West Bengal Act No. XVI of 1957, Section 21 (1) (a) was amended. For the words "five thousand rupees" in Section 21 (1) (a) the words "ten thousand rupees" were substituted. The Act came into force on the 4th Jan. , 1958. The effect of the amendment was that an appeal from a decree or order of a subordinate Judge lay to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed ten thousand rupees.

( 4 ) WHEN this amendment Act was in force Sudhinda Mohan Guha Neogy, since deceased, filed in the subordinate Judge's Court at Alipore on the 14th Sept. , 1964 a title suit being T. S. 89 of 1964 for, inter alia, declaration of title, possession and mesne profits against Renuka Pachal the petitioner before us. The suit was valued at Rs. 10,635/ -.

( 5 ) WHEN this suit was pending the Bengal, Agra and Assam Civil Courts Act, 1887 was again amended by the West Bengal Act XXVI of 1969. Section 21 (1) (a) as amended by the 1957 Act was changed. In the new amendment for the words "ten thousand rupees" the words "fifteen thousand rupees" were substituted. In other words, the District Judges' jurisdiction to entertain appeals was raised from ten thousand rupees to fifteen thousand rupees. The West Bengal Act XXVI of 1969 came into force on the 21st Nov. , 1969.

( 6 ) ON May 27, 1973, a decree was passed in Title Suit No. 89 of 1964 against the petitioner. The petitioner preferred an appeal not to the High Court but to the District Judge being Appeal No. 660 of 1973. On the 22nd Nov. 1976, the hearing of the appeal before the District Judge was concluded and judgment was reserved.

( 7 ) ON the 3rd Dec. , 1976, a Division Bench of this Court in an unreported judgment in Taramoni Dasi v. Kalidasi Maji held that the 1969 amendment Act was not retrospective in operation.

( 8 ) ON the 23rd Dec. , 1976 the District Judge at Alipore delivered his judgment against the petitioner before us. On the 18th May, 1977, the petitioner moved this Court under Article 227 of the Constitution challenging the validity of the judgment of the District Judge on the ground that he had no jurisdiction to entertain the appeal.

( 9 ) MR. Nirmal Chakraburtty appearing on behalf of the petitioner, has drawn our attention to the Supreme Court's judgment in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, AIR 1963 SC 221. In this judgment the Supreme Court has said that a right of appeal is not merely a matter of procedure. It is a matter of substantive right. The right of appeal from the decision of an inferior tribunal to a superior tribunal become