# Om Prakash Singh v. Kalawati Devi & Ors

- **Citation:** (2025) 11 ILRA 1418
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-06
- **Case number:** Matters Under Article 227 No. 11806 of 2025
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-singh-v-kalawati-devi-ors-54847
- **Pages:** 9

## Headnote

Whether Section 34 of the Gram Nyayalayas
Act, 2008 prohibits an appeal where the
valuation is less than Rs. 1,000/-

Head Notes
The Constitution of India, 1950-Article
227; The Gram Nyayalayas Act, 2008Section 23, 34(2) (b)- The suit was filed in
the year 2000 which was transferred to
the Gram Nyayalaya in the year 2023 by
order of the District Judge and was
decided by Gram Nyayalaya by judgment
and decree passed on 07.05.2025- Right
of appeal will be governed by the law
prevailing at the time of institution of suit
and not the law prevailing at the time of
decision of the suit unless the provisions
of Gram Nyayalayas Act, 2008 are held to
be
retrospective-
Sub-Section
(c)
of
Section 34(2) of Gram Nyayalayas Act,
2008 provides an exception that an appeal
can be filed on a question of law where
the amount or the value of the subject
matter of such suit, claim or dispute does
not exceed Rs. 500/- Petition fails and is
dismissed.

Held- No illegality has been committed by the
appellate court in rejecting the objections filed
by the petitioner.(Para 24, 25 & 28)
Petition fails and is dismissed. (E-15)

Case Law Cited
Smt Siya Dulari Vs. Awadh Naresh reported in
2024 (4) ADJ 210; Mukund Deo (Dead)
represented by his legal representatives Kasibai
and others vs. Mahadeo and others reported in
AIR1965 SC 703; Garikapatti Veeraya vs N.
Subbiah
Choudhury;
1957
AIR
540;
MANU/SC/0008/1957; Bala Prasad v. Shyam
Behari Lal; [(1928) 26 A.L.J 406].; Daivanayaga
Reddiar v. Renukamba, Ammal; [(1927) I.L.R.
50 Mad. 857]; Delhi Cloth and General Mills Co.
Ltd. v. Income Tax Commissioner; [(1927)
I.L.R. 9 Lah. 284]; am Singha Vs. Shankar Dayal
(1928) I.L.R. 50 All. 965 (F.B.); Colonial Sugar
Refining Company Ltd. Vs. Irving (1905) A.C.
369; M. Ramanarain Pvt. Ltd. Vs. State of
Trading Corporation of India Ltd.; (1983) 3 SCC
75,; Nagendra Nath Vs. Suresh Chandra; AIR
1932 PC 165: 59 IA 283;

List of Acts
The Constitution of India, 1950; The Gram
Nyayalayas Act, 2008

List of Keywords
The Gram Nyayalayas Act, 2008; Right of
appeal; Appeal can be filed on a question of
law; Section 34(2)

Case Arising From
Judgment and order dated 13.08.2025 passed
by District Judge, Varanasi in Civil Appeal No. 80
11 All. Om Prakash Singh Vs. Kalawati Devi & Ors.
1419
of 2025 (Kalawati Devi and others Vs. Dhanpati
Devi and others).

Appearances for Parties
Counsel for Petitioner : Arvind Pandey, Satish
Kumar Pandey
Counsel for Respondent :

## Text

1418 INDIAN LAW REPORTS ALLAHABAD SERIES
writ petition lacks merit and is dismissed.
No order as to costs.

25. Since the execution of a decree
passed in year 1965 is pending, the
executing court is directed to consider and
decide the execution case, in accordance
with law, expeditiously, preferably within a
period of six months from the date of
production of a certified copy of this order
after giving opportunity of hearing to the
parties concerned and without granting
unnecessary adjournments to either of the
parties provided that there is no other legal
impediment.
----------
(2025) 11 ILRA 1418
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 11806 of
2025

Om Prakash Singh ...Petitioner
Versus
Kalawati Devi & Ors. ...Respondent

Counsel for the Petitioner:
Arvind Pandey, Satish Kumar Pandey

Counsel for the Respondent:

Issue for Consideration
Whether Section 34 of the Gram Nyayalayas
Act, 2008 prohibits an appeal where the
valuation is less than Rs. 1,000/-

Head Notes
The Constitution of India, 1950-Article
227; The Gram Nyayalayas Act, 2008Section 23, 34(2) (b)- The suit was filed in
the year 2000 which was transferred to
the Gram Nyayalaya in the year 2023 by
order of the District Judge and was
decided by Gram Nyayalaya by judgment
and decree passed on 07.05.2025- Right
of appeal will be governed by the law
prevailing at the time of institution of suit
and not the law prevailing at the time of
decision of the suit unless the provisions
of Gram Nyayalayas Act, 2008 are held to
be
retrospective-
Sub-Section
(c)
of
Section 34(2) of Gram Nyayalayas Act,
2008 provides an exception that an appeal
can be filed on a question of law where
the amount or the value of the subject
matter of such suit, claim or dispute does
not exceed Rs. 500/- Petition fails and is
dismissed.

Held- No illegality has been committed by the
appellate court in rejecting the objections filed
by the petitioner.(Para 24, 25 & 28)
Petition fails and is dismissed. (E-15)

Case Law Cited
Smt Siya Dulari Vs. Awadh Naresh reported in
2024 (4) ADJ 210; Mukund Deo (Dead)
represented by his legal representatives Kasibai
and others vs. Mahadeo and others reported in
AIR1965 SC 703; Garikapatti Veeraya vs N.
Subbiah
Choudhury;
1957
AIR
540;
MANU/SC/0008/1957; Bala Prasad v. Shyam
Behari Lal; [(1928) 26 A.L.J 406].; Daivanayaga
Reddiar v. Renukamba, Ammal; [(1927) I.L.R.
50 Mad. 857]; Delhi Cloth and General Mills Co.
Ltd. v. Income Tax Commissioner; [(1927)
I.L.R. 9 Lah. 284]; am Singha Vs. Shankar Dayal
(1928) I.L.R. 50 All. 965 (F.B.); Colonial Sugar
Refining Company Ltd. Vs. Irving (1905) A.C.
369; M. Ramanarain Pvt. Ltd. Vs. State of
Trading Corporation of India Ltd.; (1983) 3 SCC
75,; Nagendra Nath Vs. Suresh Chandra; AIR
1932 PC 165: 59 IA 283;

List of Acts
The Constitution of India, 1950; The Gram
Nyayalayas Act, 2008

List of Keywords
The Gram Nyayalayas Act, 2008; Right of
appeal; Appeal can be filed on a question of
law; Section 34(2)

Case Arising From
Judgment and order dated 13.08.2025 passed
by District Judge, Varanasi in Civil Appeal No. 80
11 All. Om Prakash Singh Vs. Kalawati Devi & Ors.
1419
of 2025 (Kalawati Devi and others Vs. Dhanpati
Devi and others).

Appearances for Parties
Counsel for Petitioner : Arvind Pandey, Satish
Kumar Pandey
Counsel for Respondent :

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard learned counsel for the
petitioner and perused the record.

2. This petition has been filed
challenging the judgment and order dated
13.08.2025 passed by District Judge,
Varanasi in Civil Appeal No. 80 of 2025
(Kalawati Devi and others Vs. Dhanpati
Devi and others).

3. Brief facts of the case are that
predecessor in interest (Mantora wife of
Mannar) of respondent No. 11, Dhanpatti
Devi
daughter
of
Mannar
instituted
Original Suit No. 843 of 2000 for
cancellation of will deed executed by
Mannar in favour of defendants in the suit.
During pendency of the suit, The Gram
Nyayalayas Act, 2008 was passed by the
Parliament which came in force on
02.10.2009
vide
notification
dated
11.09.2009. The District Judge by order
dated 05.09.2023 transferred the Original
Suit No. 843 of 2000 to Gram Nyayalaya
Village
Pindara,
Varanasi
(hereinafter
referred as "Gram Nyayalaya"). The Gram
Nyayalaya vide judgment and decree dated
07.05.2025 declared the will deed dated
29.05.2000 to be null and void. Being
aggrieved with the judgment and decree
dated
07.05.2025
passed
by
Gram
Nyayalaya, Appeal No. 80 of 2025 was filed
by the defendant Nos. 1/1 to 1/3, 2/1, 2/2, 3/1,
3/2, 4 and defendant Nos. 6/1 and 6/2 in the
suit. Defendant Nos. 5, 7 and 8 were arrayed
as respondents in the appeal. The petitioner,
who was the defendant No. 8 in the suit and
supported the plaintiff in the suit filed an
application/ objection before the District
Judge, Varanasi regarding maintainability of
the appeal filed by the other defendants on
the ground that in view of Section 34 (2) (b)
of Gram Nyayalayas Act, 2008, an appeal
will not lie where the amount or value of
subject matter of the suit, claim or dispute
does not exceed Rs. 1,000/-. According to the
petitioner, the valuation of the suit was Rs.
200/- as valued by the plaintiff and the
appellants have also filed appeal valuing the
same to be Rs. 200/- and therefore, the appeal
is not maintainable. The District Judge by
order dated 13.08.2025 rejected the objection
filed by the petitioner on the ground that
though, the valuation of the suit is less than
Rs. 500/- but as the appeal involves the
question of law, the same is maintainable.
Hence the present writ petition.

4. It has been contended by counsel
for the petitioner that in view of Section
23 of the Gram Nyayalayas Act, 2008,
the provisions of the Gram Nyayalayas
Act, 2008 will have overriding affect in
civil proceedings. It has been further
contended that Section 34 of the Gram
Nyayalayas Act, 2008 prohibits an appeal
where the valuation is less than Rs.
1,000/-. According to the petitioner,
because of the provisions of Section
34(2)(b), the appeal was not cognizable
by the District Judge and District Judge
has wrongly rejected the objections filed
by the petitioner holding that the appeal
involves a question of law.

5.
Before
considering
the
submissions of learned counsel for the
petitioner, it would be appropriate to look
into the relevant provisions of Gram
Nyaylayas Act, 2008.
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
6.
Section 11
of
the
Gram
Nyaylayas
Act,
2008
defines
the
jurisdiction of Gram Nyaylayas as under:-

 "11.
Jurisdiction
of
Gram
Nyayalaya.
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974) or the Code of
Civil Procedure, 1908 (5 of 1908) or any
other law for the time being in force, the
Gram Nyayalaya shall exercise both civil
and criminal jurisdiction in the manner and
to the extent provided under this Act."

7.
Section 13
of
the
Gram
Nyaylayas Act, 2008 deals with civil
jurisdiction and the same is quoted as
under:-

 "13. Civil jurisdiction. (1)
Notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908)
or any other law for the time being in force,
and subject to sub-section (2), the Gram
Nyayalaya shall have jurisdiction to

 (a) try all suits or proceedings of
a civil nature falling under the classes of
disputes specified in Part I of the Second
Schedule;

 (b) try all classes of claims and
disputes which may be notified by the
Central Government under sub-section (1)
of section 14 and by the State Government
under sub-section (3) of the said section.

 (2) The pecuniary limits of the
Gram Nyayalaya shall be such as may be
specified by the High Court, in consultation
with the State Government, by notification,
from time to time."

8.
Section 16
of
the
Gram
Nyaylayas Act, 2008 provides for transfer
of pending proceedings and the same is
quoted as under:-

 "16.
Transfer
of
pending
proceedings. (1) The District Court or
the Court of Session, as the case may be,
with effect from such date as may be
notified by the High Court, may transfer all
the civil or criminal cases, pending before
the courts subordinate to it, to the Gram
Nyayalaya competent to try or dispose of
such cases.

 (2) The Gram Nyayalaya may, in
its discretion, either retry the cases or
proceed from the stage at which it was
transferred to it."

9.
Chapter
V
of
the
Gram
Nyaylayas
Act,
2008
provides
for
procedure in civil cases and Section 23 of
the Gram Nyaylayas Act, 2008 provides
overriding effect of the Act in civil
proceedings. Section 23 of the Gram
Nyaylayas Act, 2008 is quoted as under:-

 "23. Overriding effect of Act in
civil proceedings. The provisions of this
Act shall have effect notwithstanding
anything contained in the Code of Civil
Procedure, 1908 (5 of 1908) or any other
law, but save as expressly provided in this
Act, the provisions of the Code shall, in so
far as they are not inconsistent with the
provisions of this Act, apply to the
proceedings before a Gram Nyayalaya;
and for the purpose of the said provisions
of the Code, the Gram Nyayalaya shall be
deemed to be a civil court."

10. Chapter VII of the Gram
Nyaylayas Act, 2008 provides for appeal.
Section 34 of the Gram Nyaylayas Act,
2008 provides for appeal in civil cases and
the same is quoted as under:-
11 All. Om Prakash Singh Vs. Kalawati Devi & Ors.
1421
 "34. Appeal in civil cases. (1)
Notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908)
or any other law, and subject to sub-section
(2), an appeal shall lie from every
judgment
or
order,
not
being
an
interlocutory order, of a Gram Nyayalaya
to the District Court.

 (2) No appeal shall lie from any
judgment or order passed by the Gram
Nyayalaya

 (a) with the consent of the
parties;

 (b) where the amount or value of
the subject matter of a suit, claim or
dispute does not exceed rupees one
thousand;

 (c) except on a question of law,
where the amount or value of the subject
matter of such suit, claim or dispute does
not exceed rupees five thousand.

 (3) Every appeal under this
section shall be preferred within a period
of thirty days from the date of the judgment
or order of a Gram Nyayalaya:

 Provided that the District Court
may entertain an appeal after the expiry of
the said period of thirty days if it is
satisfied that the appellant had sufficient
cause for not preferring the appeal within
the said period.

 (4) An appeal preferred under
sub-section (1) shall be heard and disposed
of by the District Court within six months
from the date of filing of the appeal.

 (5) The District Court may,
pending disposal of the appeal, stay
execution of the judgment or order
appealed against.

 (6) The decision of the District
Court under sub-section (4) shall be final
and no appeal or revision shall lie from the
decision of the District Court:

 Provided that nothing in this subsection shall preclude any person from
availing of the judicial remedies available
under articles
32 and 226 of
the
Constitution."

11. Second Schedule of the Gram
Nyaylayas
Act,
2008
provides
for
jurisdiction of civil suits before the Gram
Nyaylaya. Second Schedule of Gram
Nyaylayas Act, 2008 is quoted as under:-

 "SUITS OF A CIVIL NATURE
WITHIN THE JURISDICTION OF GRAM
NYAYALAYAS

(i) Civil Disputes:

 (a) right to purchase of property;

 (b) use of common pasture;

 (c) regulation and timing of
taking water from irrigation channel.

 (ii) Property Disputes:

 (a) village and farm houses
(Possession);

 (b) water channels;

 (c) right to draw water from a
well or tube well.

 (iii) Other Disputes:
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
 (a) claims under the Payment of
Wages Act, 1936 (4 of 1936);

 (b) claims under the Minimum
Wages Act, 1948 (11 of 1948);

 (c) money suits either arising
from trade transaction or money lending;

 (d) disputes arising out of the
partnership in cultivation of land;

 (e) disputes as to the use of forest
produce
by
inhabitants
of
Gram
Panchayats."

12. Before considering question as to
whether an appeal will lie in the facts of the
present case before the District Judge, it
would be appropriate to consider right of
appeal of a litigant.

13. The expression of 'appeal' has not
been defined in the Code. According to
dictionary meaning, however, 'appeal' is an
application or petition to a higher authority or a
court of law for reconsideration of decision of a
lower authority or an inferior court of law.
(Chambers 21st Century Dictionary, (1997))

14. In Nagendra Nath Vs. Suresh
Chandra; AIR 1932 PC 165: 59 IA 283,
speaking for the Judicial Committee of the
Privy Council, Sir Dinshaw Mulla stated:

 "There is no definition of appeal in
the Code of Civil Procedure, but their
Lordships have no doubt that any application
by a party to an appellate Court, asking it to
set aside or revise a decision of a subordinate
Court, is an appeal within the ordinary
acceptation of the term....

15. M. Ramanarain Pvt. Ltd. Vs.
State of Trading Corporation of India
Ltd.; (1983) 3 SCC 75, the Supreme Court
stated:-

 The right to prefer an appeal is
a right created by Statute. No party can file
an appeal against any judgment, decree or
order as a matter of course in the absence
of a suitable provisions of some law
conferring on the party concerned the right
to file an appeal against any judgment,
decree or order.

16. The right of appeal is a
substantive right and not merely a matter of
procedure. It is a vested right and accrues
in favour of the litigant on the date lis
commences and although, it may be
actually
exercised
when
an
adverse
judgment is pronounced, such a right is
governed by the law prevailing at the date
of institution of the suit or proceeding and
not by the law that prevails at the date of its
decision or at the date of filing of appeal. It
is well settled that right of appeal arises
when a proceeding is commenced and
cannot be taken away by a subsequent
legislation except by express provision or
by necessary intendment to the contrary.

17. The leading case of the subject
i.e. whether right of appeal is a substantive
right or is only a matter or procedure and
further whether the right of appeal could be
curtailed by a subsequent legislation or not
was considered in leading judgment in case
of Colonial Sugar Refining Company
Ltd. Vs. Irving (1905) A.C. 369. In
Colonial Sugar Refining Company (supra)
an action was brought in Supreme Court of
Queensland in October, 1902. At that time,
the Order in Council of 1860, gave right of
appeal to his Majesty in Council from the
judgment of Supreme Court. The judgment
in the case was delivered by the Supreme
Court on September 4, 1903. About ten
11 All. Om Prakash Singh Vs. Kalawati Devi & Ors.
1423
days before this judgment the Judiciary
Act, 1903 came in force, the affect of
which was that his Majesty in Council
cease to be a court of appeal from decisions
of Supreme Court and the only appeal
under this Act lay to the High Court of
Australia. Despite of this fact an appeal
was taken to the Privy Counsel against the
judgment of the Supreme Court and the
question, therefore, arose whether the
Judiciary Act, 1903 was retrospective so as
to take away the right of appeal to the Privy
Council in an action brought before coming
into force of this Act. Their Lordships of
the
Privy
Council
dismissed
the
respondent's petition praying that the
appeal might be dismissed on the ground
that the right of appeal to his Majesty in
Council given by the Order in Council of
June 30, 1860, under which the leave had
been granted, had been taken away by the
Judiciary Act, 1903 and that the only
appeal from a decision of the Supreme
Court of Queensland lay to the High Court
of Australia and observed as follows:-

 " As regards the general principles
applicable to the case there was no
controversy. On the one hand, it was not
disputed that if the matter in question be a
matter of procedure only, the petition is well
founded, 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. In principle
their Lordships see no difference between
abolishing
an
appeal
altogether
and
transferring the appeal to a new tribunal. In
either case there is an interference with
existing rights contrary to the well known
general principle that statutes are not to be
held to act retrospectively unless a clear
intention to that effect is manifested."

18. The Full Bench judgment of this
Court in case of Ram Singha Vs. Shankar
Dayal (1928) I.L.R. 50 All. 965 (F.B.) is
very important. In Ram Singha (supra) suit
for rent was filed on 12 July, 1926. At that
time the North-Western Provinces Tenancy
Act, 1901 (U.P. Act II of 1901) was in force.
Section 177 of that Act gave a right of
appeal from the decision of the Assistant
Collector to the District Judge when the
amount or value of the subject matter of
suit exceeded Rs. 100. On September 7,
1926, Agra Tenancy Act (U. P. Act III of
1926) came into force. It repealed the old
Act of 1901. Section 240 of the new Act
reproduced s. 175 of the old Act providing
that no appeal would lie from any decree'
or order passed by any court under this
Act except as provided in this Act. The
material
portion
of
s.
242,
which
corresponded to s. 177 of the old Act
provided as follows:-

 "242 (1). An appeal shall lie to
the 'district judge from the decree of an
assistant collector of the first class or of a
collector in any of the suits included in
group A of the Fourth Schedule in which-

 (a) the amount or value of the
subject-matter exceeds rupees two hundred;
or
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
 (b)..................................................
.........

19. On December 23, 1926 i.e.,
after the new Act came into force, the suit
was decreed by the assistant collector. The
defendant presented an appeal to the
district judge. The district judge returned
the memorandum of appeal. The defendant
presented the memorandum before the
Collector of Etawah and that officer was of
opinion that he had no jurisdiction to
entertain the appeal and referred the case to
the High Court under s. 207 of the Agra
Tenancy Act. The reference came up before
a Bench of the Allahabad High Court
which referred the following question to a
Full Bench:

 " Whether the filing of an appeal
is governed by the law prevailing at the
date of the institution of a suit or by the law
that may prevail at the date of the decision
of it, or at the date of the filing of the
appeal ?"

20. A Full Bench of three Judges
presided over by Mr. Justice Sulaiman,
then Acting Chief Justice of Allahabad,
expressed the following opinion:

 " In our opinion the point is
concluded by the pronouncement of their
Lordships of the Privy Council in the case
of Colonial Sugar Refining Company Ltd.
v. Irving [(1905) A.C. 369]. In that case,
ordinarily an appeal lay to their Lordships
of the Privy Council from an order of the
Supreme Court. While the matter was
pending in that court, the law was amended
so as to allow an appeal to the High Court.
Their Lordships of the Privy Council held
that the new Act could not deprive the party
of his right to appeal to the Privy Council.
Lord Macnaghten remarked at page 372: '
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'."

 "That principle was reaffirmed by
their Lordships it the case of Delhi Cloth
and General Mills Co. Ltd. v. Income
Tax Commissioner; [(1927) I.L.R. 9 Lah.
284]. The principle has been followed by a
Full Bench of the Madras High Court in the
case
of
Daivanayaga
Reddiar
v.
Renukamba, Ammal; [(1927) I.L.R. 50
Mad. 857]. Dalal J. has taken the
same view in the case of Bala Prasad v.
Shyam Behari Lal; [(1928) 26 A.L.J 406].
"

21. The Full Bench answered the
question as follows:

 " Our answer to the reference is
that the right to appeal to the court of the
District Judge was governed by the law
prevailing at the date of the institution of
the suit, and not by the law that prevailed at
the date of its decision, or at the date of the
filing of the appeal."

22.
After
considering
various
judgments of Privy Council, this Court and
various other High Courts and of the
Supreme Court, the five Judges Bench of
the Supreme Court in case of Garikapatti
Veeraya vs N. Subbiah Choudhury; 1957
AIR
540;
MANU/SC/0008/1957
in
paragraph No. 28 has laid down as under:-

 "28. From the decisions cited
above the following principles clearly
emerge:

 (i) That the legal pursuit of a
remedy, suit, appeal and second appeal are
really but steps in a series of proceedings
11 All. Om Prakash Singh Vs. Kalawati Devi & Ors.
1425
all connected by an intrinsic unity and are
to be regarded as one legal proceeding.

 (ii) The right of appeal is not a
mere matter of procedure but is a
substantive right.

 (iii) The institution of the suit
carries with it the implication that all rights
of appeal then in force are preserved, to the
parties thereto till the rest of the career of
the suit.
 (iv) The right of appeal is a
vested right and such a right to enter the
superior court accrues to the litigant and
exists as on and from the date the lis
commences and although it may be actually
exercised when the adverse judgment is
pronounced such right is to be governed by
the law prevailing at the date of the
institution of the suit or proceeding and not
by the law that prevails at the date of its
decision or at the date of the filing of the
appeal.

 (v) This vested right of appeal
can be taken away only by a subsequent
enactment, if it so provides expressly or by
necessary intendment and not otherwise."

23. Hon'ble Supreme Court in case
of Mukund Deo (Dead) represented by
his legal representatives Kasibai and
others vs. Mahadeo and others reported
in AIR1965 SC 703 held that it is true that
as a general rule, alteration in the law of
procedure are retrospective, but a right of
appeal to a particular forum is a substantive
right and is not lost by alteration in the law
unless, provision is made expressly in that
behalf, or a necessary implication arises.

24. In the present case, the suit was
filed in the year 2000 which was transferred
to the Gram Nyayalaya in the year 2023 by
order of the District Judge and was decided
by Gram Nyayalaya by judgment and decree
passed on 07.05.2025. In view of the law
discussed above, the right of appeal will be
governed by the law prevailing at the time of
institution of suit and not the law prevailing
at the time of decision of the suit unless the
provisions of Gram Nyayalayas Act, 2008 are
held to be retrospective. From the provisions
of Gram Nyayalaya Act, 2008 as quoted by
me, especially Section 34 of the Act which
provides for an appeal, it cannot be held that
either expressly or by necessary intendment
that the provisions of Gram Nyayalayas Act,
2008 are retrospective.

25. Further sub-Section (c) of Section
34(2) of Gram Nyayalayas Act, 2008 provides
an exception that an appeal can be filed on a
question of law where the amount or the value
of the subject matter of such suit, claim or
dispute does not exceed Rs. 500/-. The District
Judge relied upon judgment passed by this
Court in case of Smt Siya Dulari Vs. Awadh
Naresh reported in 2024 (4) ADJ 210 and
held that present appeal involves the question of
law. In case of Smt. Siya Dulari (supra) this
court held that a suit for cancellation of a sale
deed will not lie before the Gram Nyayalaya.

26. In the present case, the suit has
been filed for cancellation of Will and
prima facie considering the Second Schedule
of Gram Nyayalayas Act, 2008, I am also of
the view that such suits are not maintainable
before Gram Nyayalaya but however, I am
not deciding this issue in the present petition
and the same is left to be decided by the
appellate court which is seized of the matter
to consider and decide whether the suit for
cancellation of Will was maintainable before
the Gram Nyayalayas or not.

27. In my view, no illegality has
been committed by the appellate court in
1426 INDIAN LAW REPORTS ALLAHABAD SERIES
rejecting the objections filed by the
petitioner. Hence the present writ petition
fails and is dismissed.
----------
(2025) 11 ILRA 1426
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Civil Revision No. 77 of 2025

Deepak Prasad & Ors. ...Revisionists
Versus
Ajay Prasad ...Opposite Party

Counsel for the Revisionists:
Vishnu Kumar Nagaich

Counsel for the Opposite Party:

Issue for Consideration
Whether the court below erred in law in
allowing the application for substitution as the
delay
condonation
application
was
filed
subsequently and not along with substitution
application.

Head Notes
The Code of Civil Procedure, 1908Section 115, Order VI Rule 17, Order
XXII Rule 4, Order XLI Rule 3-A; The
Limitation Act-1963-Article 120, Section
3- While interpreting the provisions of
Sub-Rule (1) of Rule 3A of Order XLI
C.P.C. where the statute required for
filing an application for condonation of
delay,
the
Supreme
Court
has
interpreted the same not to be fatal.
Neither Order XXII C.P.C. nor Limitation
Act provides that application under
Section 5 of Limitation Act must be filed
along with application for substitution-
The limitation for filing an application
for setting aside the abatement is 60
days from the date of abatement which
has not expired in the present case. Not
filing the separate application for setting
aside abatement will not be fatal and
prayer for setting aside abatement is
implicit
in
the
application
for
substitution- Revision dismissed.

Held-
Substitution
application
has
been
correctly allowed and the delay has correctly
been condoned by the trial court.(Para 16,
20 & 26)
Revision allowed. (E-15)

Case Law Cited
Ishwari and others v. D.D.C and others
reported in 1990 RD 175; Dr. Sakeel Ahmed
v. Smt. Sabiha Khatoon reported in 1990 RD
37; Mithailal Dalsangar Singh and Others v.
Annabai Devram Kini and Ors. reported in
(2003) 10 SCC 691; Shakuntala Devi v.
Banwari Lal and Ors. reported in AIR 1977 All
551; State of Madhya Pradesh and another
Vs. Pradeep Kumar and another; reported in
(2000) 7 SCC 372; Surendra Mani v. State of
U.P. and 5 others reported in 2025 (1) ADJ
780

List of Acts
The Code of Civil Procedure, 1908-; The
Limitation Act-1963

List of Keywords
Order XXII Rule 4; Order XLI Rule 3-A;
Statute requires for filing an application for
condonation of delay; Not to be fatal; Prayer
for setting aside abatement is implicit; Section
5 Limitation Act.

Case Arising From
Order dated 12.12.2024 passed by the trial
court i.e. Civil Judge (Senior Division), F.T.C.,
District Bareilly in O.S. No. 348 of 2019 allowing
the application filed by the plaintiff in the suit
for substitution for substituting the heirs of
deceased defendant and for amendment in the
plaint which necessitated because of the death
of sole defendant.

Appearances for Parties
Counsel for Petitioner : Vishnu Kumar Nagaich
Counsel for Respondent :

(Delivered by Hon'ble Manish Kumar
Nigam, J.)