S.D. JHA, J.

(1.) This order will dispose of the appellants application for exemption from depositing the amount of Rs. 25000/- (I.A. No.241 /90) and respondents objection under proviso to S.173(1) of the Motor Vehicles Act, 1988, as to deposit of Rupees 25000/- or 50% of the amount so awarded, whichever is less, in the manner directed by this Court.

(2.) At the hearing of applications Shri N.S. Purohit, for the appellant and Shri R.C. Kochatta, for the respondents-objectors, were heard.

(3.) Shri Purohit mainly relying on the decisions of this Court in Lakhmichand v. Mitthu, AIR 1984 Madh Pra 112; Chuluram v. Bhagatram, AIR 1980 Madh Pra 16; Sitaram v. Chaturao, 1981 Jab LJ 171 and Dattatray v. Mangal, AIR 1983 Madh Pra 82 submitted that the appeal under the old Motor Vehicles Act, 1939, did not require any such deposit being made and S.217 of the Motor Vehicles Act, 1988, providing for repeal and savings does not show that the new provision is to apply to appeal against award in respect of which claim was presented before the present Act was brought into force. On the other hand sub-sec. (4) shows that mention of particular matter in the section shall not be held to prejudice or affect the general application of S.6 of the General Clauses Act, 1987, with regard to the effect of appeals. Shri Purohit, therefore, submitted that predeposit of amount under the proviso to S.173(1) of the Motor Vehicles Act, 1988 may not be insisted upon and appeal rejected on that count.

(4.) Shri Kochatta, however, strongly relying on a Division Bench decision of Allahabad High Court in Oriental Insurance Co. Ltd., Haldwani v. Dhanram Singh, AIR 1990 All 30 [LQ/AllHC/1989/442] , submitted that this decision was a complete answer to Shri Purohits contention. Allahabad High Court relying on decisions referred to therein in the judgment in paras 14 and 15 held as under:-

"From the above decision two things are clear i.e. only substantive rights possessed by a party is of a right to appeal and secondly the forum where the appeal will lie and the limitation to do so are all matters of procedure which are not saved by the repealing Act."

"A look at S.217 of the new Act in the light of the decision referred to earlier it will be noticed that there is no specific provision to save the right of the appellant under the old Act but in view of S.6 of the General Clauses Act which have been made applicable it would be proper to assume that in cases decided before the repealing Act came into force the right of appeal will survive and can be enforced by lodging an appeal but this right of filing of appeal must be availed only in the manner provided under the repealing Act i.e. as required by S.173 of the new Act."

Before dealing with merits of the arguments of the parties material portions of S.217 of the Motor Vehicles Act, 1988 may be reproduced S.217. Repeal and savings.-

(1) The Motor Vehicles Act, 1939 (4 of 1939) and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this section referred to as the repealed enactments) are hereby repealed. (4) The mention of particular matters in this case shall not be held to prejudice or affect the general application of S.6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals. (Sub-secs. (2) and (3) are not material for the present order). From the foregoing it would be seen that the repealing provision does not prejudice or affect the right of appeal which a party may have had under the repealed Act.

(5.) Under S.110-D of the repealed Act a person aggrieved by an award of Claims Tribunal subject to amount in dispute in the appeal being not less than Rs. 2000/- had an unrestricted right of appeal without any condition as to pre-deposit of the awarded amount. In Lakhmichand v. Mitthu (AIR 1984 Madh Pra 112) (supra) this Court was dealing with S.96(4) of C.P.C. inserted by S. 33 of Code of Civil Procedure (Amendment Act, 1976). Newly inserted provision barred appeal except on question of law from a decree in any suit of the nature cognizable by Court of Small Causes when the amount or value of the subject-matter of the original suit did not exceed Rs. 3,000/-. Relying on four Division Bench cases of this Court in Chuluram v. Bhagatram (AIR 1980 Madh Pra 16) (supra); Shesh Kumar v. Kesheo Narayan, 1980 MPLJ 335 [LQ/MPHC/1980/23] ; Sitaram v. Chaturao, (1981 Jab LJ 171) (supra) and Dattatray v. Mangal (AIR 1983 Madh Pra 82) (supra) as also Kashibai v. Mahadu, AIR 1965 SC 703 [LQ/SC/1964/221] Shri G. P. Singh, C.J. observed as follows:- " It is well settled that the right of appeal accrues to the parties to the suit on the date of the institution of the suit.

(6.) In order to see whether rights or liability under the repealed law have been put to an end by the new enactment, the proper approach is not to enquire if the new enactment has by its new provision kept alive rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. Absence of saving clause in a new enactment preserving the right of liabilities under the repealed law is neither material nor decisive of the question. Jayantilal Amratlal v. Union of India, AIR 1971 SC 1193 [LQ/SC/1971/148] relied on.

(7.) In State of Bombay v. Supreme General Films Exchange Ltd., AIR 1960 SC 980 [LQ/SC/1960/135] relying on a series of earlier decisions on the point it has been held :-

"It is thus clear that in a long line of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment."

(8.) In Collector of Customs and Excise, Cochin v. A.S. Bava, AIR 1968 SC 13 [LQ/SC/1967/216] the Supreme Court reiterated its earlier observations in Hossein Kasam Dada (India) Ltd. v. State of M.P. (AIR 1953 SC 221 [LQ/SC/1953/19] ) (supra) in the following terms :

"There can be no doubt that the new requirement touches the substantive right of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alterration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellants pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure."

From the foregoing it would appear that the requirement as to pre-deposit of awarded amount as a condition of appeal would not appear to be a matter of mere procedure. 8A. Section 217 of 1988 Act reproduced above or S.173(1) ibid does not show that old rights available to a party under S.110-D are taken away.

(9.) As already observed under S.110-D of the Motor Vehicles Act, 1939 a party unless the case fell under sub-clause (2) i.e. the amount in dispute was less than Rs. 2000/- had an unfettered right of appeal to High Court without any condition as to pre-deposit of the awarded amount. This right has not been taken away by S.217 or 173(1) of the Motor Vehicles Act, 1988. On the other hand sub-sec. (4) of S.217 shows that application of S.6 of General Clauses Act, 1897 to the situation is saved. Having regard, therefore, to the ratio of M. P. High Court decision in Lakhmichand v. Mitthu, AIR 1984 Madh Pra 112 and Supreme Court decisions referred to above, requirement as to payment of Rupees 25,000/- or 50% of the amount awarded whichever is less required under proviso to S.173(1) of the 1988 Act cannot be insisted upon when the claim for compensation was presented before coming into force of the 1988 Act.

(10.) Respondents objection for rejecting the appeal for non-compliance with proviso to S.173(1) (I.A. No.241/90) is, therefore, rejected. The appeal even without compliance of the proviso is held maintainable. In view of this order I.A. No.241/90 appellants application for exemption from depositing the amount of Rs.25000/- is dismissed as infructuous.

(11.) Appellants application for stay of I.A. No.2399/90 shall now be set down for hearing. Petition allowed.