Loftus Richard Tottenham and Banerjee, JJ.

1. The question in this appeal is purely one of law, andthat law relates, we think, simply to procedure.

2. We think that the Court below has made a mistake indealing with that question. The appellants before us were in a former suitrespondents in this Court in an appeal from an original decree. In that appealthe appellant was required by this Court to furnish security for costs. Thepresent respondent became surety. That appeal was ultimately dismissed withcosts; and the respondents, who are now before us as appellants, seek torecover their costs from the surety. They applied to the lower Court forexecution of the decree for costs against the surety. On the 9th June last thelower Court rejected their application, holding that, under the law as thenlaid down by the Civil Procedure Code, the security bond could not be enforcedby means of execution of the decree, and that the judgment-creditors must haverecourse to a fresh suit against the surety. The judgment-creditors did notappeal against that decision, nor have they brought a fresh suit to recover theamount of the security. In the meantime, on the 1st July 1888, Act VII of 1888came into force. By Section 46 of that Act, Section 549 of the Code receivedthe following addition: "If such security be furnished, any costs for whicha surety may have rendered himself liable may be recovered from him inexecution of the decree of the Appellate Court in the same manner as if he werethe appellant." The judgment-creditors, taking advantage of this provisionof the new Act, made a fresh application on the 28th July for execution againstthe surety. On the 24th November last this application was likewise rejected bythe lower Court. The lower Court referred to Section 6 of the General ClausesAct which enacts: "The repeal of any Statute, Act or Regulation shall notaffect anything done, or any offence committed, or any fine or penaltyincurred, or any proceedings commenced, before the repealing Act shall havecome into operation." And the Subordinate Judge goes on to say that"the question whether the decree-holders can enforce the security bond wasraised and decided before the amending Act came into operation, and theproceedings against the surety had been commenced before that time."

3. It seems to us that the lower Court was mistaken in itsapplication of this section of the General Clauses Act. By Act VII of 1888 theprevious Statute was not repealed, and we think that the decision of the lowerCourt of the 9th June decided no more than that the existing law did not permitthe decree-holders to recover from the surety in execution of the decree. Theamending Act, which came into force a few days afterwards, expressly providesfor such recovery from the surety in execution. The lower Court did not, on the9th June, decide any question of right between the parties. It merely decidedthat, by the law as it stood then, the decree-holders must have recourse to aseparate suit. The new provision of Act VII of 1888 is one of procedure, andnot one which deals with any right. The right of the decree-holders to recovertheir money is not affected, nor is the liability of the surety to pay themoney. The only alteration is as to the mode in which to recover.

4. We think, therefore, that the judgment-creditors wereentitled to bring this fresh application under the new Act, and the Court belowought to have, granted it. That being so, we decree this appeal with costs.

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Abdul Wahed and Ors.vs. Fareedoonnissa (01.03.1889 -CALHC)