JUDGMENT

Bennett, J - This is a second civil appeal under Section 45(2a), Encumbered Estates Act, against the judgment and decree passed by the learned District Judge of Bara Banki in first appeal on 16th December 1939, and the first question which arises is whether a second appeal lies. It was held by a Full Bench of the Allahabad High Court in Ram Singha v. Shankar Dayal, AIR1928All437 , that a right of appeal in a suit is governed by the law prevailing at the date of the institution of the suit, and not by the law prevailing at the date of the decision of the suit or at the date of the filing of the appeal. There can be no doubt that if this decision is followed, no second appeal lies in the present case. The decree of the Special Judge before whom the proceedings came originally under the Encumbered Estates Act was dated 23rd December 1938.

2. The question whether the provision in Sub-section (2a) of Section 45, U.P. Encumbered Estates Act, which provides for a second appeal is retrospective or not was considered by a Full Bench of this Court in Ali Mohammad v. Khalil Ahmad, A.I.R. 1940 Oudh 335. It was held that the provision for a second appeal has no retrospective effect. In that case, however, the order of the District Judge against which it was desired to prefer a second appeal Hi it was held that no application in revision lay) was passed on 19th March 1938, and the revision application was filed on 16th July 1988. It has been contended, therefore, that the decision of the Full Bench in this case does not show that a second appeal does not lie where the date of the order of the District Judge is subsequent to the amendment in the Encumbered Estates Act. The amending Act came into force on 80th September 1939. The ruling of the Allahabad High Court in Ram Singha v. Shankar Dayal, A.I.R. 1928 All. 437 was recently followed by a learned Single Judge of this Court (Anand Behari Lal v. Mathura Prasad reported in, A.I.R. 1942 Oudh. 29 (1), but the case has not been reported. The Full Bench of this Court which decided the case in Ali Mohammad v. Khalil AhmadA.I.R. 1940 Oudh 335 did not refer to the Allahabad case, A.I.R. 1925 All. 437.

3. It is contended that there is no conclusive decision of this Court on the point, and this appears to be correct. All that was held in Ali Mohammad v. Khalil Ahmad, A.I.R. 1940 Oudh 335 was that the provision for a second appeal has no retrospective effect in view of the principle that the right of having an order treated as final vested in a party cannot be taken away by a subsequent enactment in the absence of express words to that effect. As in the present case the order of the District Judge was not passed till after the amending Act came into force it is possible to argue that the ruling in Ali Mohammad v. Khalil Ahmad, A.I.R. 1940 Oudh 335 is irrelevant.

4. I am, however, of opinion that there is no good reason for not following the principle laid down by the Allahabad High Court, namely, that a right of appeal is governed by the law prevailing at the date of the institution of the suit. It is argued that the provision for a second appeal is merely a matter of procedure, but I do not think that this view is sound. When the suit was brought there was provision for one appeal only, and it would be, I think, a distinct interference with a vested right to hold that a second appeal lies, though it did not lie when the suit was brought. In the present case the order of the trial Court was passed. in 1938 and the appeal to the District Judge was preferred early the following year. The 9 appeal might very well have been heard and decided by him before the amending Act which introduced a second appeal was enacted. It might quite possibly happen, there, fore, if a second appeal were held to lie in the present case that an appeal to a District Judge filed after the appeal to the District Judge in the present case might have been heard and decided before any question of a second appeal could have