( 1. ) THIS Letters Patent Appeal is filed against the judgment and decree passed in First Appeal No. 10 of 1982 arising out of the judgment and decree dated 19-6-82 passed by Third Additional Judge to the Court of District Judge, Gwalior.

( 2. ) OBJECTION is raised by the respondents as to maintainability. The appeal was finally heard and decided on 4-9-96 [1997 (1) Vidhi Bhasvar 255]. After its decision an application for restoration was filed as some of the respondents were not served and appeal came up for hearing. After restoration of appeal the case was listed again and objection is raised that in view of amendment in Section 100-A of Code of Civil Procedure this appeal is not maintainable. This appeal is filed against that order.

( 3. ) IT is to be examined whether the appeal is now maintainable in view of amended Section 100-A of Code of Civil Procedure came into force w. e. f. 1st July, 2002. Section 100-A is reproduced below:-

"100-A. No further appeal in certain cases.-- Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge. "

( 4. ) THIS section provides that notwithstanding anything contained in any Letters Patent for any High Court in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of High Court, no further appeal shall lie from the judgment and decree of such Single Judge. Section 16 of the Amending Act, 2002 relates to repeal and savings which is reproduced below:-

"16. Repeal and savings.-- (1) Any amendment made, or any provision inserted in the Principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the Principal Act as amended by this Act, stand repealed. (2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (a) the provisions of Section 102 of the Principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force; (b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;

(c) the provisions of Rule 1 of Order XX of the First Schedule as amended by Section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of Section 13 of this Act. "

( 5. ) COUNSEL for appellant submitted that appeal is a vested right. If appellant has acquired right to file appeal at the time of institution of suit, it can not be withdrawn. Repeal and saving of the amended CPC will be applicable to those cases, which have been instituted on 1st July or afterwards. Second contention of Counsel for appellant is that the repeal is without prejudice to the generality of the provisions of Section 6 of General Clauses Act, 1897. Counsel for appellant submitted that provisions of Section 100-A is not procedural and it will not have retrospective operation. In support of his contention Counsel for appellant has referred to the judgment in the case of Garikapat