Rao, J.

1. Balaram Jana and Babaji Netrananda Das Defendants Nos. 1 and 12 in the trial Court and the Appellants Nos. 1 and 3 in the lower appellate Court are the Appellants in this Second Appeal. This appeal is filed against a concurrent judgment of the Additional Subordinate Judge, Cut tack confirming that of the Additional Munsif, Kendrapara decreeing the Plaintiffs suit for a declaration of their title to the disputed property, for confirmation of their possession with regard to lot No. 1 and for recovery of possession of lots 1 to 9. The dispute relates to a house and 13.7 acres of land.

2. The Plaintiffs case is that the suit properties are their ancestral properties which belonged to Maguni Charan Sahani their grandfather that this Maguni Charan Sahani borrowed some money from the Jalkana Co-operative Society that as he could not pay the money, Defendant No. 12 who was the Sripanch of that Society passed an award against him for his dues that in execution of the award in Execution Case No. 148 of 1936 the decree-holder brought the properties to sale in execution of the decree and purchased the same on behalf of the Society on 17-11-1936 that Maguni died on 10-11-36 before the date of sale that the sale was nun and void as the Court had no jurisdiction to sell the property that subsequent to the execution sale Defendant No. 12 sold the properties to Defendants 1 to 3 who, in their turn, sold the properties to Defendants 4 to 9 that inspite of the sale the Plaintiffs continued to be in possession of those properties until they were forcibly dispossessed from lots 1 to 6 by Defendants 1 to 3 on or about the year 1946 that the Plaintiffs are still in possession of the homestead in lot No. 1 and that therefore the Plaintiffs are entitled to a declaration and the other reliefs.

3. The Defendants contended that Maguni was alive at the time of the sale and that the sale was valid.

4. Both the Courts found that the execution proceedings were carried on after the death of Maguni without impleading the Plaintiffs father as legal representative and hence the sale is void and a nullity, and consequently the Defendant could not acquire any title under such a sale and therefore decreed the suit.

5. The two points argued in this appeal by the learned Counsel for the Appellants are - (1) that Maguni died after the sale, and (2) that the said execution sale is valid even on the footing that Maguni died before the date of the sale.

6. With regard to the first point about the date of death of Maguni, the learned Counsel for the Appellant contended that the death register filed-on his side should have been found to be genuine and that the lower courts should have relied upon the evidence of the Defendants with regard to the date of death of Maguni. Both the lower courts discussed the evidence with regard to the date of death of Maguni in great detail and came to the conclusion that Ext. 2 filed by Plaintiffs is a genuine entry which cannot be disbelieved. This being a concurrent finding of fact of both the courts, it is binding upon us and therefore the contention of the Appellant that Maguni died subsequent to the sale cannot be accepted.

7. The second point raised by the learned Counsel for the Appellants, namely, that the sale is valid even though Maguni died before the date of sale is a new contention taken up in Second Appeal and was not raised before the two lower courts. This contention is based upon the amendments to Order 21, Rule 22 made by the Patna High Court on 14-5-47. The amendments are as follows

(a) For Sub-rule (1) of Rule 22 substitute the following sub-rule

Where an application for execution is made in writing under Rule 11(2) the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed why the decree should not be executed against him.

(b) Add as Sub-rule (3) the following

(3) Proceedings held in execution of a decree shall not be invalid solely by reason of any omission to issue or failure to serve .a notice under Sub-rule (1) or to record the reasons where such notice is dispensed with under Sub-rule (2) unless the judgment-debtor has sustained substantial injury thereby.

(c) Add as Rule 22-A the following-

22-A Where any property is sold in execution of a ,decree the sale shall not be set aside by reason only of the death of the judgment-debtor between the date of issue of the sale proclamation and date of sale, notwithstanding the failure to substitute his legal representative in his place, but in case of such failure the Court may set aside the sale if satisfied that the legal representative of the judgment-debtor has been prejudiced thereby.

8. The learned Counsel for the Appellants contends that by virtue of the amended Rule 22-A which came into force on 14-5-47 the sale is a valid sale inasmuch as the concerned amendment is a procdural amendment and has retrospective effect. In support of his contention the learned Counsel relies upon a decision of this Court reported in the case of Mobarak Ali v. Dinabandhu Sahu and Ors. 19 C.L.T. 484. In the said case it was held by their Lordships Panigrahi C.J. and Mohapatra J. that procedural laws are retrospective unless there is a contrary intention in the amendment itself and that no person can have a vested right in a course of procedure and it is an elementary principle that the Plaintiff or the Defendant has the right to prosecute or defend in the manner prescribed for the time being by or in the Court he sues and if there is an Act which alters the mode of procedure he has no other right than to proceed under the new law, and that oft a perusal of the language of the new provisions under Order 21, Rule 22-A the Court is satisfied that it applies to sales that had taken place prior to the coming into force of the amendment. By virtue of this decision, it is contended by the Appellants that it applies to the present case though the sale took place sometime in 1936. In my opinion, the present case in appeal is not covered by the decision in 19 CLT 484.

9. In the above case reported in 19 Cuttack Law Times, p. 484, two Miscellaneous Appeals were the subject matter of the said decision. One arose out of execution proceedings in execution of a decree obtained by the Cuttack Bank Ltd, against Kashinath Das and others for a sum of Rs. 5000/- and odd, the decree being dated 27th July, 1939. In Miscellaneous case No. 116 of 1941 out of which Miscellaneous Appeal No. 93 of 1948 arose, one Rabindranath Das filed a petition under Section 47 Code of Civil Procedure that the sale which took place on 5th May, 1947 was void against the interest of the deceased Golak Chandra Das, who died on 15th November, 1946, In Miscellaneous Case Nos, 137 and 138 of 1947 out of which Miscellaneous Appeal No. 92 of 1948 arose, purchasers of a portion of the mortgaged property on 8th March, 1941 made an application under Section 47, Code of Civil Procedure and also under Order 21, Rule 90 Code of Civil Procedure alleging the sale to be void and also applied for setting aside the sale on the allegation that in the execution proceedings on the application of the judgment-debtor under the provisions of the Orissa Money Lenders Act, an order was passed on 15th January, 1943 allowing the judgment-debtors to pay in instalments and setting aside the sale on certain allegations, The executing court dismissed the petition under Order 21, Rule 90, Code of Civil Procedure as it was filed long after the period prescribed for limitation without noticing the new amendment of the Patna High Court of Order 21, Rule 22-A dated 14th May, 1947, It is on these facts that the learned Judges in the above case allowed the appeals and held that the new amendment has got a retrospective effect. It is clear from the decision that the proceedings before their Lordships arose out of a proceeding in execution, namely, in an application under Order 21, Rule 90, Code of Civil Procedure and it is perfectly correct to say that the new amendment has a retrospective effect inasmuch as they are dealing with a petition under Order 21, Rule 90, Code of Civil Procedure to set aside a sale. Rule 22-A says that a sale shall not be set aside by reason only of the death of the judgment-debtor between the date of issue of the sale proclamation and date of the sale notwithstanding the failure to substitute his legal representative in his place. The amendment is in terms applicable to the facts of that case and on the facts of that case the retrospective effect of the amendment applies.

10. But the present case does not arise out of an application by the party to set aside a sale he Plaintiffs filed the suit for a declaration of their title and for confirmation and recovery of possession. According to the allegations in the plaint the Plaintiffs allege that the properties in suit are their ancestral properties. The Plaintiffs on that account are entitled to a share in the properties and entitled to be in possession of the properties as coparceners. After the alleged execution sale in 1936 there is a cloud cast upon their title and they were dispossessed from certain properties by Defendants 1 to 3. It is on these allegations that they come to Court for a declaration and other reliefs. When the sale in execution of the decree against Maguni was held on 17-11-36 though prior to that date he died on 10-11-36 without his legal representatives being brought on record, the Plaintiffs had a vested right from that date to sue for the declaration of their title. A vested right of suit cannot be affected by subsequent-amendment of Order 21, Rule 22, Code of Civil Procedure.

11. In the case of Colonial Sugar Refining Co. Limited v. Irving 1905 App Cas 369 it was held that an Act regulating procedure though retrospective cannot be construed so as to effect a right in existence at the time of the passing of the Act.

Their Lordships observed

On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the Appellants would be entitled to succeed. The judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His" Majesty in Council a right vested in the Appellants at the date of the passing of the Act, or was it a mere matter of procedure It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.

12. In the case of Jackson v. Woolly 1858 LJR 448 it was held that a vested right of suit cannot be taken away by a procedural amendment. Williams J. said,-

It would require words .of no ordinary strength in the statutes to induce us to say that it takes away such a vested right.

The same principle was followed in the case of Gopeswar v. Jiban Chandra : A.I.R. 1914 Cal. 806 [LQ/CalHC/1914/136] . In the cases of K. Dada Ltd. v. The State of Madhya Pradesh and Ors. : A.I.R. 1953 S.C. 221 and Promotha Nath Pal Chowdhury v. Souray Dasi Chowdhurani and Anr. A.I.R. 1920 Cal 435 and in other cases cited at the Bar, the same principle has been clearly laid down. I am, therefore, of opinion that the amendment of 1947 cannot affect the Plaintiffs vested right of suit.

13. Further there is a clear difference between the amended Rule 22(S) which says that proceedings held in execution of a decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under Sub-rule (1), whereas Rule 22-A says "where any property is sold in execution of a decree, the sale shall not be set aside by reason only of the death of the judgment-debtor". In the first amendment it is stated that the sale shall not be invalid, whereas in the second the express wroding is that the sale shall not best aside, Therefore, it is clear that Rule 22-A applies only to cases where an application is filed to set aside a sale on the ground that the judgment-debtor died at the time of the sale and no legal representatives were brought on record.

14. For the reasons stated above, I would confirm the judgment and decree of the lower appellate Court-and dismiss the appeal with costs.

Panigrahi, C.J.

15. I agree.