Kuriakose v. Narayanan Nair

1. The principal question that falls to be decided is whether the lower appellate court was wrong in dismissing the appeal out of which the revision arises, as not maintainable. On January 5, 1977 the respondent decree holder filed an execution petition for recovery of the amount due to him. The petitioner who is the judgment-debtor raised objections to the execution claiming the benefits of Ordinance 1 of 1977 and later made an application E. A. 660 of 1977 for relief under Act 17 of 1977, which had, in the meanwhile replaced Ordinance 1 of 1977. After enquiry the execution court by its order dated October JO, 1977 overruled the objections of the petitioner and dismissed E A. 660 of 1977 and allowed the respondent to proceed with the execution. From this order the petitioner preferred an appeal in the Additional District Court, Parur. The learned Additional District Judge dismissed the appeal as not maintainable on the ground that the order was "not a decree by virtue of the Amendment Act (Act 104 of 1976)". The petitioner challenges this decision in the revision.

2. Before it was amended by Act 104 of 1976 the Code of Civil Procedure by S.2(2) defined -decree" to include, so far as material, "the determination of any question within S 47." Act 104 of 1976 omitted the words "within S.47" from the definition of decree The result of this omission was that determination of any question under S.47 ceased to be a decree and thereby lost its appealability as a decree under S.96. Act 104 of 1976 came into effect on February 1, 1977 and therefore the order of the executing court which is dated October 10,1977 did not possess the force of a decree to sustain the appeal before the lower appellate court. Counsel for the petitioner however contended that he had acquired a vested right of appeal as the execution petition was filed in January 1977 when orders under S.47 were appealable and that this right has not been destroyed by Act 104 of 1976. He also contended that despite the change in the definition of "decree" with its impact on the appeal-ability of orders, S.97 (2) (a) of the Act preserves the right of appeal from an order under S.47 and that the appeal to the court below was therefore competent for that reason. The short point in the revision is whether this contention is right.

3. Now as pointed out in Subbiah Choudhury (A1R.1957 S. C 540) which has been followed in several subsequent cases) the right of appeal is a substantive right and not a mere matter of procedure and the institution of a suit carries with it the implication that all rights of appeal then in force are preserved till the rest of the career of the suit. That decision also laid down that the right of appeal is a vested right and that it can be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. That principle applies here whether we reckon the commencement of the lis either with reference to the suit or the execution petition (irrespective of the question whether the execution petition is a continuation of the suit or is independent of it), for the execution petition was filed on January 5, 1977, before the commencement of Act 104 of 1976.

4. What next falls to be considered is whether this right has been taken away either expressly or by necessary intendment by Act 104 of 1976, for if this has not happened the appeal was competent. Going back a little, the Joint Parliamentary Committee which considered the Bill that led to Act 104 of 1976 pointed out in its report that the definition of decree, which took in determinations of questions under S.47 giving rise to appeals and second appeals, was mainly responsible for the delay in the execution of decrees. The Committee therefore recommended "that the definition of the term "decree" should be amended so that the determination of questions open under S.47 may not amount to a decree." This recommendation was accepted and we have the amended definition of "decree" with the words "S. 47 or" omitted. In order to avoid delays in execution, the Law Commission had suggested the insertion of a new provision as S.99A in the Code providing that no order made on an objection under S.47 shall be reversed or substantially varied, nor shall any case be remanded, in appeal, on account of any error, defect or irregularity in any proceeding not affecting the merits of the case or the jurisdiction of the court. In the Bill S.99A was included, but the words "in appeal" contained in the Section as recommended by the Law Commission were dropped. S.99A as it stands now does not contain those words.

5. It is obvious that the definition of decree in S.2 (2) was amended to exclude appeals from determinations of questions under S.47, as such appeals were found to clog execution proceedings and that in line with this object, the words "in appeal" were deleted from what has become S.99A. From the manner in which S.2 (2) was amended and the object with which it was done, it is fairly clear that the legislative intent was to affect the vested rights and not to retain them. The amendment was deliberately introduced to deprive, retrospectively as well as of course prospectively, the parties of the right of appeals.

6. Turning to the argument based on S.97 of Act 104 of 1976 it deals with repeals and savings. Sub-section (2) and clause (a) reads as follows:

"(2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of S.6 of the General Clauses Act, 1897.

(a) the amendment made to clause (2) of S.2 of the principal Act by S.3 of this Act shall not affect any appeal against the determination of any such question as is referred to in S.47 and every such appeal shall be dealt with as if the said S.3 had not come into force."

7. This clause, it was contended, saves appeals from orders on execution petitions pending at the commencement of Act 104 of 1976 even where the orders were subsequent to such commencement In order to meet the objection that clause (a) covers only pending appeals or appeals from orders passed before such commencement, counsel for the petitioner referred to clauses (f), (j), (k), (m), (n), (o) and (2) of S.97 (2), emphasising the absence in clause (a) of words like "pending immediately before the commencement of" occurring in clauses (f) and (z). I find it unable to accept this contention. The language of clause (a) shows that it is meant to save only appeals which were pending at the date of commencement of Act 104 of 1976 and also appeals from orders under" S.47 which had been passed before that date. In those cases the amendment to S.2 (2) has no application as decrees have already come into existence and in the former case even an appeal had been filed. The clause cannot reasonably or fairly be construed as preserving the right of appeal from orders on execution petitions which had been filed before the date of commencement of Act 104 of 1976, even where those orders are subsequent to that date. As the object of clause (a) was to cover the two classes of cases where the appeal was pending and where a decree in terms of the unamended S.2 (2) had already come into existence it did not understandably use the expression "pending" which would have limited it to one class and excluded the other.

8. I cannot agree that the other clauses in S.97 (2), as clauses (f) and (z) which use the words "pending immediately before the commencement" would assist the petitioners contention about clause (a). A glance at these clauses and clauses (I), (k), (m), (n) and (o) will show that the same method has not been used in respect of the words in all of them. In clause (a) the word "pending" was not used obviously because the right to file appeal had accrued before the relevant date, as a decree had already come into existence. That is not true of clauses (j), (k), (m), (n) and (o) which provide for different contingencies. I reject the petitioners contentions.

9. This conclusion is supported by Pratap Narain Agarwal v. Ram Narain Agarwal, AIR. 1980 Allahabad 42 (F. B ), Tapan Chandra v. Dulal Chandra, AIR. 1980 Gauhati 3 and Mohan Das v. Kamala Devi A1R. 1978 Rajasthan 127.

10. Counsel lastly submitted that in case I hold that the appeal to the lower appellate court was not maintainable I might treat this revision as directed against the order of the execution court and deal with it on the merits. I find no good reason to accede to this request, considering the nature of the revision and the prayers therein and the long passage of time after the order of the execution court.

I dismiss the revision but without costs. Dismissed.