JUDGMENT 1. THIS is an application for a declaration of fitness for appeal under Clause 15 of the Letters patent. 2. THIS appeal against the appellate decree was allowed by me by a judgment and decree dated 28th February, 1978. Against this decision the present application has been made on March 21, 1978, asking for the declaration of fitness as aforesaid, for appeal to a Division Bench. Under Clause 15 of the Letters patent an appeal against a decree passed in the exercise of appellate jurisdiction in respect of a decree made in exercise of Appellate Jurisdiction by a Court subject to the superintendence of this court lies where the Judge who passed the judgment declares that the case is a fit one for appeal. Normally this application would, therefore, be maintainable and it had been the practice of this Court to apply for certificate by an oral application immediately after the judgment is delivered by a single Judge, which opportunity unfortunately was not availed of by the petitioner, leading to the instant application. 3. THE difficulty in respect of the maintainability of this application has been created by the insertion of Section 100 A in the Code of Civil procedure by section 38 of Code of Civil procedure (Amendment) Act, 1976 which is as follows : "section 100a. Notwithstanding anything contained in any Letters patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal. " Section 97 of the Amending Act provides as follows :- "97 (1) Any amendment made, or any provision inserted in the principal Act by a state Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repeated. (2) Notwithstanding that the provisions of the Act have come into force or the repeal under sub-section (i) has taken effect, and without prejudice to the generality of the provisions of section 6 of the general Clauses Act, 1897. (a.) . (n) Section 100a as inserted in the principal Act by section 38 of this act, shall not apply to or affect any appeal against the decision of a single Judge of a High Court under any Letters Patent which had been admitted before the commencement of the said section 38; and every such admitted appeal shall be disposed of as if the said section 38 had not come into force." 4. MR. Ghose, appearing for the applicant, has drawn my attention to the decision in the case of The Colonial sugar Refining Company Limited vs. Irving 1905 A. C. 369, where the Court was considering an application for dismissal of an application for appeal to the Privy Council from the decision of the Supreme Court of Queens land. This right of appeal was taken away by the Australian Common-wealth judiciary Act, 1903 which came into force on August 25. 1903 whereby the appeal lay only to the High Court of australia, the Act however was not made retrospective. The Privy council held that if the matter in question was a matter of procedure only then the petition for dismissal of the appeal against judgment of September 4, 1903 as not being maintainable was well-founded. On the other hand, if it was more than a matter of procedure, if it touched 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. It was held that the Judiciary Act was not retrospective by express enactment or by necessary intendment. The only question, therefore, 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 seemed to their Lordship that the question did 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, the Court found 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. This decision was followed in the Full Bench Case of this Court in the case of Shaikh Sadat Ali vs. Shaikh dalumuddin, 32 C. W. N. 1130. The court was dealing with an amendment of clause 15 of the letters Patent made in 1927. The amended clause 15 of the letters Patent of this Court came into force on 14th January, 1928 and provided that no appeal shall lie from a judgment of one Judge of the High court in the exercise of Appellate jurisdiction unless such Judge declares that the case is a fit one for appeal. It was held that the Act had no retrospective operation and it did not apply to appeals in respect of suits instituted before the 14th January, 1928 and did not narrow down, in those cases, the right of appeal given by the old clause 15 which did not provide for any declaration of fitness for appeal by the trying Judge though such declaration of the trying Judge was made a requirement by the amendment. 5. STRONGLY relying on these decisions, Mr. Ghose submitted that a right of appeal was vested in a litigant at the time the suit was filed and it continued till the right of appeal was finally exhausted. In this view of the matter it was contended that the present application for declaration of fitness for appeal to a Division Bench was maintainable in law. 6. IT would appear that after the judgment of the Full Bench, referred to above, clause 15 of the Letters Patent was again amended by inserting the words "on or after the 1st day of February, 1929" therein. As a result the clause 15 of the Letters Patent stood as follows : "15. . . . . . . . . . As a result the clause 15 of the Letters Patent stood as follows : "15. . . . . . . . . . notwithstanding anything hereinbefore provided an appeal shall lie to the said High court from a judgment of one judge of the said High Court made on or after the first day of February 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the judge who passed the judgment declares that the case is a fit one for appeal. . . . . . . . . . . . " The resultant position after this second amendment is that in respect of any decision made on or after the 1st day of February, 1929, in view of the express provision of the Letters Patent, a declaration of fitness for appeal of the trying Judge was made an essential requisite for an appeal, commonly known as 'letters Patent Appeal,' though under the decision of the Full bench in the absence of the words fixing the date as aforesaid, such certificate was not necessary in respect of suits instituted before the first amendment to clause 15 of the Letters Patent was brought into force. 7. THE right of appeal is at once a substantive as well as a procedural right and there can be no dispute that the legislature has unfettered power to take away such right whether procedural or substantive vested in any litigant. For true import of such amending legislation we have to look into the provisions of the particular amending act which are brought into force during the pendency of ligitigation and to construe the provisions of the section to find cut the real intention. If we now consider the provisions of section 100a which has been inserted by the amending Act, it appears therefrom that no appeal shall lie where any appeal from an appellate decree or order is heard and decided by the Judge of a High Court. If we now consider the provisions of section 100a which has been inserted by the amending Act, it appears therefrom that no appeal shall lie where any appeal from an appellate decree or order is heard and decided by the Judge of a High Court. Tike words to be noted are ''is heard and decided" which, therefore, clearly and expressly indicate that the provisions of the Act will be applicable where the appeal is heard and decided by the learned Judge after the provisions of the Amending Act comes into force which is February 1, 1977 in respect of both Sections 38 and 97. In view of this express provision, it appears that there is no escape from the position that no appeal shall lie under clause 15 of the Letters Patent after a case is heard and decided by a single judge after the provisions of section 100a come into force that is after February 1, 1977. In the Colonial sugar Refining Company's case cited by mr. Ghose, the observation was expressly made that if there is such provision, express or implied, the position of vested rights would be altered or amended accordingly. 8. MR. Ghose has drawn my attention to certain provisions of the amendment which I have quoted above. Under section 97 (2) (n) the amended provisions of section 100a shall not apply or effect any appeal against the decision of a single Judge of a High court under any Letters Patent which has been admitted before the commencement of section 38 and such admitted appeal shall be disposed of as if section 38 has not come into force. Mr. Ghose put emphasis on the word "admitted" which in accordance with the practice of this Court is applicable, according to him, in respect of Appeals when heard under the provisions of order 41 rule 11 of the Code of Civil procedure. Accordingly, he submits, if before the amendment comes into force a Second Appeal has been admitted and heard the judgment wherein is the subject-matter of challenge, it will come under the protection of clause (n) of Section 97 (2). In my opinion, the word "admission" has to be read and understood consistently with the natural meaning and import of the word against the background of the existing law, practice and procedure. In my opinion, the word "admission" has to be read and understood consistently with the natural meaning and import of the word against the background of the existing law, practice and procedure. The word 'admission' refers to an appeal against the judgment of a single Judge and means the making of the necessary declaration of fitness for appeal by the trying Judge and the filing of the memorandum of appeal itself in such appeal on that basis. Only the appeal, in which such declaration is made or what is commonly known as "leave to appeal" under clause 15 of the Letters Patent is granted and the memorandum of appeal is filed therein on the basis of such declaration which may be pending in this Court on the day the amendment come into force, will not be touched by the amending provisions of section 100a of the Code of Civil Procedure. The view I have taken is supported by the decisions in the case of state of West Bengal v. Mir Fakir mohammed, A. I. R. 1977 Cal., 285, as also the decision in the case Anusua dhirajlal Kanakia v. Promode Kumar banerjee and others 82 C. W. N. 313. There is another aspect to be taken into consideration. Supposing a judgment is passed prior to February 1, 1977, but the limitation for filing an appeal there from which under Article 117 is thirty days from the date of the order or decree is yet to expire before the said date, so that there may be no question of or occasion for admission of such appeal before the commencement of Section 38. Such appeal notwithstanding its non-admission before the date of commencement of the provisions of Section 100a by Section 38 of the Amending Act, will be protected and will also be unaffected by the amendment if filed within limitation in accordance with the earlier provisions of law. This will be so in view of subsection (2) of Section 97 of the amending Act which provide that its clause (n) amongst others, will be effective without prejudice to the generality of the provisions of section 6 of the general Clauses Act 1897 which protects the previous operation of law unless a different intention appears. 9. IN the premises this application fails and is dismissed. There will be no order as to costs.