Narmada Devi v. Ram Nandan Singh

S.S. SANDHAWALIA, J.

(1.) The salient and meaningful questions which arise for determination in this reference to the Full Bench may well be formulated in the terms following : 1. Whether an appeal is still maintainable against an order (other than an interlocutory one) under S.47 of the Code of Civil Procedure despite the amendment of S.2(2) thereof, and other statutory changes wrought therein by the Code of Civil Procedure (Amendment) Act, 1976

(2.) Whether the abolition of a right of appeal by the competent legislature would attract the equality clause of Art.14 of the Constitution and involve any consequential discrimination in this field

(3.) Whether Parshava Properties Ltd. v. A.K. Bose, AIR 1979 Pat 308 [LQ/PatHC/1979/109] lays down the law correctly in the aforesaid twin context

(4.) If the answer to question No. 1 is in the negative, would S.97(2)(a) of the amending Act preserve the right of appeal only in respect of the pending appeals or would extend also to cases where the right to file the appeal had already accrued prior to the 1st of February, 1977 against an order passed under S.47 of the Code

(5.) If it is held under question No. 4 that S.97(2)(a) saves the right of appeal even where it had already accrued prior to the enforcement of the amending Act, when does such a right to file appeal accrue 2. In view of the pristinely legal issues involved, the briefest reference to the facts suffices. Opposite Parties Nos. 5 and 6 had instituted Title Suit No. 112 of 1973 in the Court of the Sub Judge, Bhagalpur, for partition of the properties mentioned in the plaint claiming 1/3rd share for themselves. On behalf of the petitioners it is averred that ultimately the parties settled the differences and filed a compromise petition and a compromise decree was recorded by the learned Sub Judge on the 18th of August, 1973 with the direction that the compromise petition shall form part of the decree. The petitioners claimed that they had paid the entire amount of Rs. 9169/- barring the marginal figure of Rs. 272/- under the said compromise. Yet opposite party No. 1 put the compromise decree in execution for realisation of the entire amount and kept the execution process suppressed and ultimately got sold 22 bighas out of 33 bighas of valuable lands representing the share of the petitioners in the papers as well. The petitioners on getting knowledge of the execution proceeding filed an objection under S.47 of the Code of Civil Procedure (hereinafter to be referred to as the Code) which was registered as Miscellaneous Case No. 64 of 1977. After contest, the learned Subordinate Judge passed a detailed order dated the 8th of August, 1978 dismissing the same. 3. Against the aforesaid order, the petitioners originally preferred a Miscellaneous First Appeal No. 196 of 1978 in this Court but an objection was taken by the Registry that after the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter to be referred to as the amending Act) no appeal was maintainable and by an order dated 29th of June, 1979 the appeal was permitted to be converted into the present civil revision. It would appear that subsequently the Division Bench judgement in Parshava Properties Ltd. v. A.K. Bose, AIR 1979 Pat 308 [LQ/PatHC/1979/109] was rendered and on behalf of the petitioners the stand was taken that the impugned order of the Sub Judge was appealable and in the circumstances the revision petition should be allowed to be reconverted into a miscellaneous appeal. This was objected to by the learned counsel for the opposite party and the learned single Judge by his order dated the 17th of September, 1981 referred the matter to a Division Bench to determine whether the case should be heard as a revision application or an appeal. Before the Division Bench the ratio of Parshava Properties Ltd.s case (supra) was strenuously pressed on behalf of the petitioners in support of the stand that an appeal would still lie against the dismissal of the objection petition by the Sub Judge. However, the learned Judges constituting the Division Bench entertained doubts about the correctness of the ratio in Parshava Properties Ltd.s case and referred the same for a decision by the Full Bench on the question as to whether an appeal against any order passed under S.47 of the Code after its amendment on any point whatsoever would still lie. That is how the matter is before us now. 4. Mr. Shreenath Singh, the learned counsel for the petitioners, rested himself squarely on Parshava Properties Ltd.s case (AIR 1979 Pat 308 [LQ/PatHC/1979/109] ). Taking his cue from the reasoning and ratio thereof, he forcefully contended that despite the amending Act of 1976 an appeal would still be maintainable against an order passed under S.47 of the Code if such an order satisfies the essential characteristics of a decree. It was fairly conceded that after the amendment an appeal against such an order, which is purely interlocutory in nature, would no longer be competent. However, where such an order substantially and conclusively adjudicated on the valuable rights of the parties with regard to all or any of the matters in controversy, an appeal against the same would still be maintainable. Faced with the hurdle that an execution proceeding is not a suit, it was contended that determination in a proceeding which in continuation of a suit must be taken as a determination in the suit so as to amount to a decree within the meaning of S.2(2) of the Code. It was further argued that in every developed jurisprudence there is at least one right of appeal on substantial questions and, therefore, an interpretation which would tend to take away such a right should be avoided. In sum the learned counsel canvassed for the acceptance and affirmance of Parshava Properties Ltd.s case and, indeed, what he termed as its impeccable reasoning even though he fairly conceded that the weight of precedent in other Courts was now decisively against the same. 5. At the very outset, it must be admitted that the issue herein is not entirely free from difficulty and there is a sharp cleavage of judicial opinion. Ere one inevitably adverts to precedent, the issue deserves examination on principle and language of the statute. In essence, it turns on the true intendment of the changes brought in the Code by the amending Act and the true import of the same. In interpreting the existing provisions now, the hallowed rule in Heydons case (1584-76 Er 637) is at once attracted. One must inquire into the state of the law as it stood earlier, the mischief which was sought to be corrected and the remedy therefore provided by Parliament. In order to truly appreciate the rival contentions and to perceive the matter in a correct perspective, the legislative history is not only relevant but, indeed, a dominant factor here.

(6.) It is common ground that prior to the amending Act the determination of any question by an order under S.47 was appealable. This was so by virtue of a legal fiction which provided that the determination of any question within S.47 would deemed to be a decree and, consequently, under S.96 of the Code an appeal would lie against the same. The existing state of the law had led to the well-acclaimed dictum that in India the trouble of a litigant began after he had secured a decree.

(7.) In the 27th Report the Law Commission considered at length some aspects of the revision of the Civil Procedure Code, 1908 including the expeditious execution of Court decrees. In pursuance of the recommendation of the said Report, a Bill to implement the same was introduced in Parliament which, however, lapsed later. The Government of India, when considering the question of reintroduction of the Bill, requested the Commission to examine the Code afresh "from the basic angle of minimising cost and avoiding delays in litigation". The Law Commission submitted the 54th Report suggesting certain amendments in the Civil Procedure Code. This Report did not suggest any change in the definition of the word decree so as to affect the right of appeal against an order passed on objection petition under S.47. However, in order to avoid delays in execution the Law Commission suggested the insertion of a new provision as S.99A to provide 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.

(8.) On the basis of the recommendations in the 54th Report of the Law Commission a Bill was drafted which was thereafter referred to a Joint Committee. To pointedly expedite the execution of decrees the Joint Committee suggested a change in the very definition of the word decree. While making this suggestion, the Committee unequivocally observed : "The Committee note that according to the definition of the expression decree in the Code, the determination of any question under S.47 amounts to a decree, and as such an appeal and second appeal would lie against such determination. The Committee are of the view that this provision of the Code is mainly responsible for the delay in the execution of decrees. The Committee, therefore, feel that the definition of the term decree should be amended so that the determination of question open under S.47 may not amount to a decree.

(9.) The recommendation of the Joint Committee on the amendment of S.2(2) was accepted and a Bill was introduced incorporating the same. In the Bill S.99A as recommended by the Law Commission was also included. However, as appeals against orders under S.47 had been abolished, the words in appeal as originally proposed by the Commission were pointedly dropped. The Bill was passed by Parliament and thereafter it became the and was enforced from the 1st of February, 1977.

(10.) The stage is now set to notice the relevant meaningful changes brought about by the amending Act by juxtaposing the corresponding provisions : Before amendment After amendment "2(2) decree means the formal expressions of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include- "2(2) decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (a) Any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default." (b) any order of dismissal for default." "47. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. "47. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this Section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees. (2) Omitted by C.P.C. (Amend.) Act, 1976, S.20 (w.e.f. 1-2-1977). (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section, be determined by the Court." (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section be determined by the Court." "99A. Without prejudice to the generality of the provisions of S.99, no order under Section 47, shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case."

(11.) Before one adverts to the larger scheme of the amendment of the Civil Procedure Code in regard to the execution proceedings by the amending Act, it would call for pointed notice that even prior thereto an order under S.47 was treated as a decree only by sufferance due to an express deeming legal fiction. It is plain that an order under the said Section is not passed in a suit nor is it drawn up in the formal form of an adjudication in the style of a decree. In many cases such an order may not at all be a conclusive determination of the rights of the parties with regard to the real matter in controversy, as for example, in the context of interlocutory orders. Thus, at the pre-amendment stage, an order under S.47 had been clothed as a decree purely by a deeming legal fiction apparently to give a right of appeal against it by virtue of S.96.

(12.) Now, with the above background, one may turn to the real intent and the scheme of the amendment of Civil Procedure Code by Parliament in this context. Firstly, S.2(2) of the Code was amended and the deeming provision with regard to orders under S.47 was expressly deleted. The inevitable result is that thereafter orders passed under S.47 could not be considered as a decree by any legal fiction. To make the intent clear the Parliament then repealed Sub-Sec. (2) of S.47 as well. Thus, the somewhat analogous power of converting a proceeding into a suit or a suit into a proceeding was clearly taken off the Statute Book. All that thus remains now is a simple definition of the word decree in S.2(2) without the deeming provision which included an order under S.47 and equally the removal of the power of conversion under Sub-Sec. (2) thereof. The intent is further made clear by the insertion of S.99A. It bears repetition that originally such a provision was suggested by the Law Commission for restricting any interference with orders under S.47 unless they prejudicially affected the decision of the case. The dropping of the words in appeal in the enacted provision, in contrast to what was proposed, would again be a pointer to the fact that Parliament clearly conceived the intent of abrogating of appeals against orders under S.47 which, as already noticed, were hamstringing the expeditious execution of decrees. Further it calls for notice that wherever any order is to be made appealable, the Code expressly confers such a right and even when by amendment the deeming fiction of orders under S.47 being decrees was taken away, no consequential provision was made anywhere for making some orders there under appealable. This again is indicative of the legislatures earnestness to take away the right of appeal in this context to which the whole exercise of amendments of the aforequoted provisions seems to be directed. To put it forthrightly, the simple position emerging after the amending Act is that prior to the same orders under S.47 were by a deeming fiction decrees and were consequently appealable and subsequent to the amendment all the orders under S.47 are no longer appealable, such a right having been expressly abolished by the legislature. To suggest that though, admittedly, certain orders under S.47 have now been rendered unappealable, yet some still retain the original attribute of being appealable is a mere legal hair-splitting, which runs counter to the main grist of the legislative mandate sought to be enforced by the amendment.

(13.) In fairness to Mr. Shreenath Singh, one must notice his contention that the insertion and location of S.99A suggested that certain orders under S.47 would still be appealable. He submitted that S.99A fell in Part VII of the Code pertaining to appeals from original decrees and not in Part VIII including reference, review and revision. On this premise, it was contended that S.99A still visualised an appeal against an order under S.47. It was also submitted that S.99A would be rendered redundant if the interpretation placed on behalf of the opposite party was accepted.

(14.) The somewhat superficial plausibility of the submission aforesaid with regard to the location of S.99A in Part VII falls to the ground when it is noticed that the same is inextricably connected with the preceding S.99 and is, indeed, in the nature of a proviso thereto. That being so, by sheer force of logic and good draftsmanship it had necessarily to be located in immediate succession to S.99 and hence in Part VII of the Code. Therefore, nothing at all turns either on the accident or the necessity of locating S.99A immediately after S.99 with which it is closely allied. Again by way of contrast, it is manifest that the word appeal has been employed and retained in S.99 yet scrupulously excluded in S.99A. Yet again it has to be noticed that whilst S.99 explicitly pertains to decrees, S.99A expressly talks of only an order under S.47 and not at all about any decree. Plainly enough Ss.96 and 97 make only decrees appealable and not orders unless they expressly come within another provision making such orders expressly appealable. It is common ground that no provision of the Code now makes an order passed under S.47 expressly appealable.

(15.) Equally it would bear repetition that the incorporation of the proposed S.99A had been recommended by the Law Commission earlier when, as yet, there was no intention of making any amendment, in S.2(2). Subsequently when the Joint Committee amended S.2(2) and deleted the legal fiction of making the orders decrees, the words in appeal used in the proposed S.99A were dropped. As a result, S.99A as well applies to proceedings other than appeals, i.e., revisions. Hence it is not correct to argue that S.99A would be redundant if the stand of the opposite party was to be accepted. For all the aforesaid reasons, the tenuous submission rested on the location, language and content of S.99A raised on behalf of the petitioners must be rejected.

(16.) Mr. Shreenath Singh, the learned counsel for the petitioners, had then made a tenuous attempt to bring an order under S.47 within the basic definition of a decree under S.2(2) of the Code by contending that execution proceedings being subsequent to a suit are, in essence, a suit and the issues therein must be deemed as matters in controversy in the suit itself.

(17.) The contention aforesaid might well bring some credit to the ingenuity of the learned counsel for the petitioners but is nevertheless fallacious. It seems somewhat plain that orders under S.47 cannot come within the basic definition of a decree and it was therefore that these had to be included therein by a deeming fiction prior to the amending Act. Plainly enough an order under S.47 is not the formal expression of an adjudication and its form has no similarity or identity with that of a decree. Equally it would be doing great violence to the language to hold that the questions arising in the course of the execution of a decree are matters in controversy in the suit as spelt out in S.2(2). Merely because execution proceedings follow a decree in the suit, it cannot be said that these proceedings can also be fictionally termed as a suit stricto sensu. The analogy of an appeal in this context does not appear to be apt to my mind. Apart from the above, a conclusive answer to the contention on behalf of the petitioners is rendered in the following observations of the Division Bench in Hansumatiben v. Ambalal Krishnalal Parikh, AIR 1982 Guj 324 [LQ/GujHC/1981/181] : "Therefore, an effort was made to argue that an execution proceeding, being a continuation of a suit and if the rights of the parties are conclusively determined in any of the matters in controversy, the order passed under S.47 of the Civil P.C. must be construed as a decree though the deeming provision is taken away. If we accept such a proposition, an absurd result would follow. The Civil Procedure Code contemplates one decree and there cannot be two decrees passed under the provisions contained in the Civil Procedure Code. An appeal is a continuation of a suit. In appeal the appellate Court passes an appellate decree but that merges with the original decree. Therefore, what is done in appeal is that either original decree is modified, confirmed or varied or reversed and the result thereafter follows is that there remains one decree which could be executed. Now that, therefore, in appeal a decree could be passed and that decree changes the original decree and as a result so far as the executing Court is concerned, there is only one decree which could be executed. Now if the executing Court which has no power under the Civil Procedure Code to go behind the decree, passes a decree which can neither affirm, vary, modify or reverse the original decree, it could pass only a new decree and the result would be that there would be two decrees and such an absurdity was never contemplated when the Code of Civil Procedure, was amended in 1976." To the same tenor are the observations in Pratap Narain Agarwal v. Ram Narain Agarwal, AIR 1980 All 42 [LQ/AllHC/1979/461] (FB), para 15 and Mohammad Khan v. State Bank of Travancore, AIR 1978 Ker 201 [LQ/KerHC/1978/1] (FB). Consequently, both on principle and precedent, it must be held that orders under S.47 cannot be equated with matters, in controversy in the original suit itself. The contention of the learned counsel for the petitioners, therefore, must fail.

(18.) Lastly, in this context, one must also notice the contention of Mr. Shreenath Singh that the right of appeal is a substantive right which vests in the litigant from the date the lis commences and his specific reliance on Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 [LQ/SC/1957/10] . On that basis it was contended that the appellate right in the petitioners which accrued to them because of the filing of the execution petition and the objection prior to the date of enforcement of the amending Act, cannot be taken away.

(19.) There cannot possibly be any quarrel with the legal proposition that the right of appeal once conferred is a substantive right and would accrue to the litigant from the time when he enters the portals of the Court. This has been authoritatively laid down in Garikapati Veeraya v. N. Subbiah Choudhry (supra) by their Lordships and has thereafter not been deviated from. However, in this very judgement it has been laid down in categoric terms that this vested right of appeal can be taken away by the competent legislature by a subsequent enactment if it is so provided expressly or even by necessary intendment. That being so, the primal question herein is whether by the amending Act the earlier right of appeal against the orders under S.47 has been expressly or by necessary intendment abrogated retrospectively. It is unnecessary to tread afresh the ground already covered in the earlier part of the judgement with regard to the changes brought about in the relevant provisions of the Code by the amending Act. These changes, in my view, raise an irresistible conclusion that the intention of the Parliament was to affect the vested right of appeal against orders in execution proceedings under S.47. As noticed earlier, the whole purpose was to cut down the litigative process and to advance the expeditious execution of the decrees. This intention of the Parliament has been manifested by express words as has been shown earlier. Even otherwise the necessary implication of the amendment in S.2(2) and S.47 as also the insertion of S.99A appears that the right of appeal was being taken away with retrospective operation. Once that finding is arrived at, the submission that the right is a substantive right and accrues to the litigant from the commencement of the lis does not in any way-advance or further the case of the petitioners.

(20.) Lastly I am inclined to take the view that the stand taken on behalf of the petitioners would tend to frustrate the very object of the amendment in this context. The very purpose of the deletion of the deeming provision from S.2(2) of the Code was to make orders passed under S.47 non-appealable. If the contention raised on behalf of the petitioners were to be accepted, then such orders would still continue to be appealable despite such deletion and the abolition of the legal fiction. It is true that on the argument advanced by the learned counsel and every order under S.47 and in particular the purely interlocutory ones may not be appealable, yet, according to him, every such order, which determines the substantial rights of the parties with regard to all or any of the matters in controversy, would continue to be so. Such a stand would indeed create another hornets nest as to when an order determines the rights of the parties and whether those rights are to be construed as substantial and further whether all or any of them arise in the suit or the proceeding. It is axiomatic that to the jaundiced eye of cantankerous litigant that every order would fall in such a category. As has been noticed, the evil which the Parliament sought to remedy by the amendment was to prevent the filing of frivolous appeals from orders in execution proceedings even after the parties to the dispute had been through the mill of the suit and its consequent appeals. The construction advocated on behalf of the petitioners would again revive the hierarchy of appeals against order under S.47 supposedly determining substantial rights of the parties. The larger purpose of the amendment was the expeditious execution of decrees and there is no gainsaying the fact that if appeals are allowed to be carried against orders in execution proceeding itself, the final execution of decree would necessarily be held up. The old adage that problems of the litigant in India begin, perhaps, only after he has secured the decree would again be resuscitated. For all these reasons, I am inclined to the view that the stand taken on behalf of the petitioners herein runs against the very grist of the object and purpose of the amendment.



(21.) As has been noticed earlier, the view I am inclined to take is buttressed by a massive weight of authority in the other High Courts. It is unnecessary to individually advert to these judgements and it suffices to mention that the same view has been taken in express terms or by necessary implication in Mohammad Khan v. State Bank of Travancore, AIR 1978 Ker 201 [LQ/KerHC/1978/1] (FB), Mohan Das v. Kamla Devi, AIR 1978 Raj 127 [LQ/RajHC/1977/261] , Ram Niwas v. Mithan Lal, AIR 1979 Punj and Har 262, Jagat Ram v. Jagjit Singh, AIR 1984 Punj and Har 281, Pratap Narain Agarwal v. Ram Narain Agarwal, AIR 1980 All 42 [LQ/AllHC/1979/461] (FB), Tapan Chandra v. Dulal Chandra. AIR 1980 Gau 3, Kuriakose v. P.K. Narayanan Nair, AIR 1981 Ker 18 [LQ/KerHC/1980/270] , Hansumatiben v. Ambalal Krishnalal Parikh, AIR 1982 Guj 324 [LQ/GujHC/1981/181] , Rameshkumar Swarupchand Sancheti v. Rameshwar Vallabhram Bhatwal, AIR 1983 Bom 378 [LQ/BomHC/1983/108] and Challa Ramamurty v. Pasumarti Adinarayana Sons Regd. Firm, AIR 1985 Andh Pra 42.

(22.) To conclude on this aspect, it must be held that after the amending Act of 1976, no appeal is now maintainable against any order whatsoever passed under S.47 of the Code of Civil Procedure.

(23.) Adverting now to the second question, the argument on behalf of the petitioners is again rested on Parshava Properties Ltd.s case (AIR 1979 Pat 308 [LQ/PatHC/1979/109] ). Learned counsel for the petitioners contended that if the amending Act may be taken as abolishing the right of appeal, even where a final determination of rights takes place in an order under S.47 there will be a violation of the principles of equality as embodied in Art.14 of the Constitution. As a necessary consequence, the relevant amending provisions would become unconstitutional. We were, therefore, invited to either strike down the amending provisions or to read them down in order to bring them within the bounds of constitutionality by retaining the right of appeal against orders under S.47 which determine substantial rights of the parties.

(24.) To counter the aforesaid contention, Mr. Ghose, the learned counsel for the opposite party took a twin stand on the issue. It was forthrightly contended that Art.14 can in no way be attracted or applicable to the question of the repeal of a procedural provision of appeal by a competent legislature. In the alternative, it was argued that even on the assumption that it was attracted, there was a patently reasonable classification in abolishing the right of appeal in one field and retaining it in the other and thus no hostile discrimination would arise.

(25.) The twin question herein has to be examined on the anvil of two foundational premises. The first one turns on the very nature of the procedural provisions of appeal. It seems now settled beyond cavil that this right of appeal is a mere creature of the statute. No one can claim any inherent or fundamental right to appeal to a higher forum unless such a right is conferred by law. It seems unnecessary to delve deeply into this question on principle because it is well settled by authority and no judgement holding to the contrary could be cited. Reference in this connection may be made to the observation of Chandrachud, J., (as the learned Chief Justice then was) in highlighting the basic distinction between the right of a suit and a right of appeal in Smt. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126 [LQ/SC/1974/144] at page 1129 :

"On this question the position seems to us well-established. There is a basic distinction between the right of a suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at ones peril, bring a suit of ones choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute."

Even more categoric are the observations of Khanna J., in Anant Mills v. State of Gujarat, AIR 1975 SC 1234 [LQ/SC/1975/26] . Therein, whilst repelling a similar attack under Art.14 of Constitution against an appellate provision which required a deposit of tax before the entertainment of appeal, it was observed: "The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment to tax unless the tax had been paid. Such a provision was on the statute book in S.30 of the Income-tax Act, 1922. The proviso to that Section provided that........ no appeal shall lie against an order under Sub-Sec. (1) of S.46 unless the tax had been paid. Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant part and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation, and we can discern to contravention of Art.14 in it. It is unnecessary to multiply precedents because even on a larger principle it is manifest that the right of appeal is not a guaranteed or a constitutional right. There is nothing whatsoever in the Constitution which may even remotely vest any such unalienable right in the citizen. It is axiomatic that such a right is not a fundamental right nor a constitutional one. That being so, it is equally evident that there is no inherent claim or right to appeal from an original forum. It is, therefore, that it has been repeatedly asserted that the right of appeal is a mere creature of the statute. If that be so, it is plain that the creator, which confers such a right, namely, the legislature can within its plenary power equally take away the same. If a competent legislature exercises this plenary power, no issue of the infraction of the right of equality before the law under Art.14 can possibly arise.

(26.) The other equally fundamental premise is epitomised in the adage that no one has any inherent or fundamental right in a particular procedure. Now there is no manner of doubt that in the light of the above the right of appeal is a right which is either conferred, modified or abrogated by the competent legislature. No one can, therefore, claim any inherent right to be governed by a particular procedure. If the legislature were not to choose to grant a right of appeal, no mandamus would lie that the same must be granted against an original forum. Since there is no inherent or fundamental right in the citizen to claim an appellate forum, it follows that such a right may be either conferred or taken away by the competent Legislature in its wisdom. It is true as authoritatively held in AIR 1957 SC 540 [LQ/SC/1957/10] (supra), once a right of appeal has been conferred then the same is a substantive right which accrues from the commencement of the lis. However, equally well settled it is by the very same judgement that such a right may be taken away by the Legislature prospectively or retrospectively either in the express terms or even by necessary intendment. It must, therefore, follow that there is no inherent or fundamental right to a particular procedure and the right of appeal being a creature of the legislature, there is equally no inherent or fundamental right to an appellate forum. Consequently, it must be held that within the narrow and constructed issue of conferment, modification, or the total repeal of a right of appeal would, in no way, attract the application or infraction of Art.14.

(27.) In the alternative, one may now proceed to examine the question on the assumption (entirely for the sake of argument) that Art.14 might well be attracted. In this context, Mr. Shreenath Singh again commended the reasoning of the Bench in Parshava Properties Ltd.s case (AIR 1979 Pat 308 [LQ/PatHC/1979/109] ) by reference to O.21, R.58(4). Thereby any order adjudicating on the claim or objection to the attachment of property under the said Rule has been made appealable as if it were a decree. It was, therefore, contended that it would not only be incongruous but even unconstitutional that where in a somewhat similar situation a stranger would have the right of appeal, the parties to the decree, who, according to counsel, should be at a better footing, have been denied that right. This, according to the learned counsel, would be violative of Art.14.

(28.) The submission aforesaid proceeds on an inherent fallacy. It was rightly argued by Mr. Ghose for the opposite party that different classes of litigants cannot be labeled as identical owing to some similarity. The well-known maxim that similarity is not identity has thus to be kept in sharp focus. Therefore, no question of one class of litigants being identical and mathematically equal to another can strictly arise. Hence, the absolute identity of the litigant, in fact, would be a myth. This apart, Mr. Ghose highlighted the fact that persons who were parties to the suit and may thereafter have been equally parties to a protracted litigation by way of appeal and second appeal are a class distinct and separate from those who are strangers to the decree. Whereas in the case of parties to the suit, the legislature might rightly curtail the litigation and deny them any further forum of appeal in execution proceedings, a stranger who had no opportunity to present his case through a hierarchy of forums may well be granted an appellate right. Consequently, to classify a party to the suit or a proceeding and a rank stranger thereto as being either wholly similar or identical is thus fundamentally fallacious. Now once it is held that such a class of litigants are not identical then any differentiation betwixt them cannot possibly attract the equality clause or the concept of hostile discrimination. Article 14, as is too well known, permits reasonable classification and no quarrel can be raised against the legislatures wisdom in classifying the parties to the suit as a category different from strangers thereto. Indeed, Mr. Shreenath Singh, with illimitable fairness, conceded that if the two were distinct and separate or could be reasonably classified then on larger principle the conferment of the right of appeal on one and denial to the other would not attract the equality clause.

(29.) In essence, the rightful submission on behalf of the opposite party is that it does not lie in the mouth of a differently situated litigant that if the legislature has given a right to appeal to X, it must also give such a right to Y though he is not on an identical footing. As has been noticed earlier, the whole thrust of the amendment herein was to expedite the execution proceedings, whose tardiness, as experience has shown, would lead to a virtual failure of justice. Therefore, after full consideration of the matter Parliament has ruled that parties to the suit, who have been through the mill of litigation culminating in the original and appellate decrees, must have all further disputes decided in the execution forum alone and not by way of a further suit or a second spiral of appellate litigation from the execution stage as well. For the advancement of this object, the parties to the suit and the decrees were denied the right of appeal against orders under S.47 whilst strangers to the decree were given such a right in the context of claim or objection to the attachment of property. Far from there being any discrimination, the provision in essence seems to be rested on a reasonable classification and is otherwise equitable and meritorious. It was pointed out that the amending Act whilst taking away the appellate forum against orders under S.47 conferred such a right where necessary as, indeed, in the added R.46A of O.21 which made orders under RR.46B, 46C and 46E appealable, and similarly the substituted present R.103 of O.21 in place of the earlier one for conferring the right of appeal in the context of the peculiarity of those circumstances. As an example of the legislatures power to reasonably classify the forums of appeal, Mr. Ghose pinpointed S.25 of the Small Cause Courts Act which bars any further appeal thereby. It was submitted that in cases where matters of identical valuation were either tried in a Court other than the Small Cause Court or where the valuation varies marginally by a rupee, the bar of the right of appeal does not in any way make the said Section discriminatory. Therefore, it would follow that even on the anvil of Art.14, the amending Act would conform to the test of reasonable classification.

(30.) To sum up, it must be held that the abolition of a right of appeal by the competent legislature does not attract the equality clause of Art.14 and in any case the amending Act in taking away the right of appeal proceeds on a reasonable classification.

(31.) Coming now to the third question, it is common ground that the corner-stone of the petitioners stand is rested on the case of Parshava Properties v. A.K. Bose, (AIR 1979 Pat 308 [LQ/PatHC/1979/109] ) (supra) with regard to both questions 1 and 2 discussed above. A perusal of the judgement would indicate that the issue was not adequately debated before the Bench. The legislative history was not brought into focus nor the clear intendment of Parliament in amending the relevant provisions. The earlier Reports of the Law Commission and the specific recommendation of the Joint Committee seem to have missed notice. The changes brought about in S.47 by deletion of Sub-Sec. (2) thereof were equally not adverted to. The real import of the proposed S.99A by the Law Commission and its later modification and insertion as now enacted do not seem to have been adequately canvassed and well projected. The conclusion that execution proceedings should virtually be deemed to be a suit for purposes of S.2 of the Code does not seem to be well merited. The observation that the view taken would not frustrate the object of the legislature, with respect, does not seem to be entirely tenable. The contrary view in AIR 1978 Rajasthan 127 and AIR 1978 Ker 201 [LQ/KerHC/1978/1] (FB) (supra) was brushed aside and dissented from without any in-depth discussion. As has been shown earlier, later precedents in Ram Niwas v. Mithan Lal, AIR 1979 Punj and Har 262, Jagat Ram v. Jagjit Singh, AIR 1984 Punj and Har 281, Pratap Narain Agarwal v. Ram. Narain Agarwal, AIR 1980 All 42 [LQ/AllHC/1979/461] (FB), Tapan Chandra v. Dulal Chandra, AIR 1980 Gau 3, Kuriakose v. P.K. Narayanan Nair, AIR 1981 Ker 18 [LQ/KerHC/1980/270] , Hansumatiben v. Ambalal Krishnalal Parikh, AIR 1982 Guj 324 [LQ/GujHC/1981/181] , Mst. Sarabai Agarwalla v. Haradhan Mohapatra, AIR 1982 Orissa 9 and Ramesh Kumar Swarupchand Sancheti v. Rameshwar Vallabhram Bhatwal, AIR 1983 Bom 378 [LQ/BomHC/1983/108] , have now all taken a contrary view and, indeed, AIR 1982 Guj 324 [LQ/GujHC/1981/181] , AIR 1984 Punj and Har 281, AIR 1982 Orissa 9 and AIR 1985 Andh Pra 42 have, after express notice, dissented from this case.

(32.) Equally in arriving at the conclusion that certain orders under S.47 were still appealable despite the amending Act, the Bench was largely influenced by its view that Art.14 was attracted and taking away the right of appeal would be violative of the same. As has been discussed in detail under question No. 2, the abolition of the right of appeal by Parliament would not attract the equality clause at all and even on the assumption that it would, there appears to be a patent reasonable classification in the amending Act. It is unnecessary to traverse the same ground again and it would suffice to say with great respect that the conclusion arrived at in this context by the Division Bench is not correct. Indeed, even though pressed, learned counsel for the petitioners could cite no other precedent wherein any change in the procedure had been held to be violative of Art.14. An identical or in any case somewhat similar submission in the context of the amendment of S.115 of the Code by S.6 of the U. P. Act was summarily repelled by the Full Bench in Parsidh Narain Pandey v. Kalapnath, AIR 1973 All 523 [LQ/AllHC/1973/212] . To the same tenor is the observation in Sri Chand v. State of Haryana, AIR 1979 Punj and Har 19. As noticed earlier, later precedents have, with virtual unanimity, taken a contrary view or have expressly dissented from Parshava Properties Ltd.s case (AIR 1979 Pat 308 [LQ/PatHC/1979/109] ).

(33.) It is unnecessary to specifically advert to the observation and somewhat similar reasoning in Chuluram v. Bhagatram, AIR 1980 Madh Pra 16 and with the deepest respect I would wish to record my dissent there from.

(34.) For the aforementioned detailed reasons as also in the light of the exhaustive discussion under questions 1 and 2 (supra) I am constrained to hold with the deepest deference that on both the points Parshava Properties Ltd. v. A.K. Bose (AIR 1979 Pat 308 [LQ/PatHC/1979/109] ) does not lay down the law correctly and is hereby overruled. For identical reasons, Rai Mathura Prasad v. Special Officer, Bihar Hindu Religious Trust Board, AIR 1984 Pat 227 [LQ/PatHC/1984/42] which has equally followed the earlier Division Bench has also to be overruled.

(35.) To conclude on this aspect, for the detailed reasons given above, the answer to question No. 3 is rendered in the negative.

(36.) Coming now to question No. 4, it is obvious that it turns primarily on the language and import of the relevant provisions of S.97 of the amending Act. It is, therefore, apt to read the relevant provision at the outset : "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 repealed. (2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-Sec. (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 Cl.(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; (b) the provisions of S.20 of the principal Act, as amended by S.7 of this Act, shall not apply to or affect any suit ending immediately before the commencement of the said S.7; x x x x (j) the provisions of S.91 of the principal Act, as amended by S.30 of this Act, shall not apply to or affect any suit, appeal or proceeding instituted or filed before the commencement of the said S.30; and every such suit, appeal or proceeding shall be disposed of as if the said S.30 had not come into force; x x x x (m) the provisions of S.100 of the principal Act, as amended by S.37 of this Act, shall not apply to or affect any appeal from an appellate decree or order which had been admitted before the commencement of the sad S.37, after hearing under R.11 of O.XLI; and every such admitted appeal shall be dealt with as if the said S.37 had not come into force; x x x x (z) the provisions of O.XLI of the First Schedule, as amended by S.87 of this Act, shall not apply to or affect an appeal pending immediately before the commencement of the said S.87; and every such appeal shall be disposed of as if the said S.87 had not come into force; x x x x (zb) the provisions of O.XLIII of the First Schedule, as amended by S.89 of this Act, shall not apply to any appeal against any order pending immediately before the commencement of the said S.89; and every such appeal shall be disposed of as if the said S.89 had not come into force."

(37.) Relying on the language employed in S.97(2)(a), Mr. Shreenath Singh had contended that where the right to prefer an appeal had accrued to a party before the amendment came into force, the same still stood preserved under this provision. According to the learned counsel, the right to file the appeal had accrued to his clients with effect from the date of the filing of the objections under S.47 of the Code and the same was sought to be maintained intact by S.97(2)(a). Counsel highlighted the expressly different phraseology employed in Cls. (b) to (zb) of Sub-Sec. (2) in contrast with that employed in Cl.(a). It was submitted that the latter clause was not intended to preserve pending appeals alone but equally every right of appeal from the very inception of its accrual.

(38.) The submission aforesaid must be decided on the anvil of the larger scheme of S.97, the context in which Cl.(a) of Sub-Sec. (2) has been laid and, in particular, the language employed therein in contradistinction to other clauses. Sub-Section (1) of S.97 first repeals all those amendments in the Code by the State Legislatures or the High Courts which would be inconsistent with the provisions of the Code as amended. Sub-Section (3) then mandates that the amended Code shall apply to every suit, proceeding, appeal or application pending at the commencement of the or filed after such commencement irrespective of the fact that, the right or cause of action therefore had been acquired or had accrued before the enforcement of the amending Act. What, however, is significant is the fact that by virtue of the non obstante clause of Sub-Sec. (2) and the saving clause of Sub-Sec. (3) all matters enumerated in Cls. (a) to (zb) of Sub-Sec. (2) are expressly saved from the application of the amending provisions of the in the terms provided therein. The core question, therefore, in this context is as to what exactly is saved by Cl.(a) of Sub-Sec. (2). Is it the appeal already filed and pending or does it also preserve the right of appeal already accrued against an order passed under S.47 prior to the 1st of February, 1977

(39.) Plainly enough, S.97(2)(a) can be categorised into two distinct classes : firstly where the right of instituting appeals had been exercised by the parties before the enforcement of the and, secondly, where the right to file the appeal had accrued against an order already passed under S.47 of the Code but had not been exercised before the time the amendment came into force. There is indeed no difficulty whatsoever with regard to the first category. It is common ground that the pending appeals on the date of the enforcement of the amending Act are fully protected and are in no way affected by the abolition of the right of appeal consequent on the amendment of S.2(2) of the Code. However, with regard to the second category it is not possible to go to the length of holding that in all cases where objections had been filed before 1st of February, 1977 the right to appeal would continue to be preserved whenever any order under S.47 is passed in such an application. The language of S.97(2)(a) does not permit such an interpretation and, in particular, in the context in which it is laid. The expression "shall not affect any appeal", in my opinion, would not take within its sweep even the cases where execution applications were merely pending before the executing Court and the order under S.47 may yet come to be passed in the future. This expression is capable of explanation that where the right to appeal had accrued expressly because of the passing of an order under S.47 (which was earlier deemed to be a decree) prior to the amendment, the same would not be affected by the amendment inasmuch as in such a case by a fiction a decree had already come into being. Since such a decree had already come into existence, the law intended to leave the right protected and untouched by the amendment made in S.2(2). The express amendment in Sub-Sec. (2) was that hereafter an order would not amount to a decree and inevitably such an order would cease to be appealable. However, where such a decree had already come into being, the amendment of S.2(2) was not to apply. Consequently, the plain intendment of the Legislature was firstly to leave untouched the appeals which had already been filed on the date of the enforcement of the amending Act and, secondly, to protect the right to file an appeal in all those cases where it had already accrued by the passing of an order under S.47. Mr. Shreenath Singh, learned counsel for the petitioners, had, however, contended that the scope of S.97(2)(a) should not be narrowed down to include only the aforesaid two categories. He sought its Extension to cover unreservedly all cases where the right of appeal may be deemed to have accrued from the date of the filing of the application so as not to defeat the general proposition that statute which affects the existing right of appeal is not rightly construed to affect the adjudication of pending proceedings.

(40.) The aforesaid argument of Mr. Shreenath Singh, in essence, would mean that the petitioners would continue to have a right of appeal despite the amendment in S.2(2). Such an interpretation would defeat the very object and purpose of the which, as already noticed, was to abolish such a right against orders in execution proceedings. It is a sound canon of interpretation to avoid a construction which frustrates the very object and purpose of a statue. An equally settled rule of interpretation is that the words in a statute draw their color from the context as a whole. What was sought to be preserved by Sub-Sec. (2) was only limited to the enumerated Cls. (a) to (zb) thereof. The preceding Sub-Sec. (1) expressly repealed all State Legislatures or High Courts amendments which were inconsistent with the amended provisions. The succeeding Sub-Sec. (3) would show that the Legislature expressly intended the amended law to apply to every suit, proceeding, appeal or application pending at its commencement or instituted thereafter notwithstanding the fact that the right or cause of action thereof had been acquired or accrued before such commencement. By a saving clause it only saved what was expressly enumerated in Sub-Sec. (2). The legislature could not have expressed its intention in a more unequivocal language than one employed in Sub-Sec. (3). The intent of retrospectivity and to affect even the rights which had accrued before the enforcement of the amending Act is thus writ large with the limited exception of what was saved by Sub-Sec. (2). Therefore, in the context in which Cl.(a) of Sub-Sec. (2) is laid, it is not possible to extend it to an unqualified protection of all rights of appeal which may have accrued prior to the enforcement of the amending Act. To repeat, it is limited only to the two categories enumerated above.

(41.) In fairness to the learned counsel for the opposite party, one must also notice the firm stand of the learned counsel for the opposite party that S.97(2)(a) saves only the pending appeals and no other. Reliance was placed on the erudite Division Bench judgement in Ram Niwas v. Mithan Lal, AIR 1979 Punj and Har 262. This argument has to be appreciated against the background of the hallowed rule that the right of appeal once conferred is a substantive right which can be taken away by a subsequent enactment if it so expressly provides or by necessary intendment and not otherwise. Following a long line of precedent, this rule has been authoritatively laid out in Garikapati v. Subbiah Choudhry, AIR 1957 SC 540 [LQ/SC/1957/10] wherein five clear-cut propositions have been enunciated, and has been re-affirmed later in Jose Da Costa v. Bascora Sadashiva Sinai Narcornin, AIR 1975 SC 1843 [LQ/SC/1975/254] . Therefore, the Courts have to lean strongly against the snatching away of an accrued right of appeal which can be done only by either express or an unequivocally necessary intendment. With the aforesaid rule in mind, what appears to be conclusive is the designed and deliberate use of different phraseology employed in Cl.(a) in contradistinction to the remaining Cls. (b) to (zb). Wherever the legislature intended to confine the saving only to the pending appeals or suits, it has said so in no uncertain term in the remaining clauses. Reference may first 10, made to Cl.(z) which again is confined only to appeals and the phraseology used is "shall not apply to or affect any appeal pending immediately before the commencement of the said Section". Turning to Cl.(b), the language is "shall not apply to or affect any suit pending immediately before the commencement of the said Section". Again, Cl.(j) uses the similar expression "shall not apply to or affect any suit, appeal or proceeding instituted or filed before the commencement of the said Section". The relevant part of Cl.(m) is worded as "shall not apply to or affect any appeal from an appellate decree or order which had been admitted before the commencement of the said Section". Clause (y) again says "shall not apply to or affect any injunction subsisting immediately before the commencement of the said Section". Why does Cl.(a) designedly and deliberately refrain from using the identical phraseology If the intendment was to confine Cl.(a) to only pending appeals, why was the identical language used in Cl.(z) with regard appeals not similarly employed The answer seems to be the only one that the legislature was not confining Cl.(a) to pending appeals alone but also the appeals where the right had accrued already against an order passed under S.47. It is a well-known adage of interpretation that the legislature does not waste its words nor does it employ a different terminology to convey an identical meaning. In the context in which Cl.(a) is laid, to say that it is confined only to pending appeals alone when the succeeding clauses use expressly different phraseology to convey the same result would, in my view, be deviating from the sound canons of contextual construction. Because of the different and distinct phraseology used in the remaining clauses by the legislature wherever they wish to save only pending appeals, suits or other proceedings, it cannot be said that Cl.(a) is also confined to pending appeals alone. The phraseology used - "shall not affect any appeal against the determination of any question as is referred to S.47" is different and, consequently, wide enough to include both a pending appeal and an accrued, right of appeal against an order passed under S.47 and has been designedly so employed.

(42.) It appears to me that because the legislature intended to cover two types of cases mentioned above, it deliberately did not employ the word pending in Cl.(a) to S.97(2). If it had used that expression then alone the scope of the same would have been narrowed down to cases where the appeals were pending on the date of the enforcement of the amending Act. Where it wanted to do so, the legislature in terms has done so, as for instance in Cl.(z). Advisedly the legislature did not use the same in Cl.(a). Patently it did not intend to take away the right of appeal which had already accrued against an order passed on the objection before the commencement of the amending Act because the status of a decree had already been obtained on the date of the disposal of such objection.



(43.) I am not unmindful of the fact that a Division Bench in Ram Niwas v. Mithan Lal, AIR 1979 Punj and Har 262 has taken a contrary view. With the deepest deference, I am constrained to dissent there from. The Achilles heel of the said judgement appears to be its attempt to water down Sub-Sec. (2)(a) of S.97 to harmonise it with Sub-Sec. (3). It seems to have been missed that with regard to the matters enumerated in the various clauses of Sub-Sec. (2) the same is the dominant provision and is expressly saved from the operation of Sub-Sec. (3). Clearly enough the provisions of Sub-Sec. (3) cannot affect or override those of Sub-Sec. (2) which had been expressly saved in the very opening part thereof Sub-Section (2), therefore, had to be construed independently with its pristine force. It bears repetition that in its very opening part Sub-Sec. (3) expressly saved Sub-Sec. (2) where it provided otherwise. Equally Sub-Sec. (2) begins with the non obstante clause. With deep respect, I am also unable to agree with the inference drawn by the Bench with regard to the reference to S.6 of the General Clauses Act in Sub-Sec. (2). Equally it appears to me that the true import of the employment of expressly different phraseology in Cl.(a) from that in others has been missed. The later Full Bench in Pratap Narain Agarwal v. Ram Narain Agarwal, AIR 1980 All 42 [LQ/AllHC/1979/461] has expressly taken a view contrary to that in AIR 1979 Punj and Har 262. With respect I would agree with the Allahabad view.

(44.) It must, therefore, be held that S.97(2)(a) of the amending Act protects both the appeals already pending as also the right to file the appeal which had already accrued against an order under S.47 of the Code passed prior to the enforcement of the amending Act.

(45.) Adverting now to question No. 5, the same stands covered by the preceding discussion under S.4. As already discussed, the issue must be construed in the context in which Cl.(a) of S.97(2) is laid. When viewed in that context, it must be held in the light of the aforesaid discussion that the right to file the appeal accrues only on the passing of the actual order under S.47 of the Code and not earlier.

(46.) To finally conclude on the primal questions formulated at the outset, the answer to question No. 1 is rendered in the negative and it is held that no appeal is now maintainable against an order under S.47 of the Code - whether interlocutory or otherwise - after the enforcement of the amending Act.

(47.) The answer to question No. 2 is rendered in the negative and it is held that the abolition of the right of appeal by the competent legislature would not attract the applicability of Art.14 of the Constitution. In any case, in the present context such repeal is rested on reasonable classification.

(48.) The answer to question No. 3 is rendered in the negative and Parshava Properties Ltd. v. A.K. Bose, AIR 1979 Pat 308 [LQ/PatHC/1979/109] and the judgements of this Court following the same are hereby overruled.

(49.) In answer to question No. 4, it is held that S.97(2)(a) of the amending Act protected the right of appeal with respect to pending appeals as also the said right where it had already accrued prior to 1st of February, 1977 by the passing of an order under S.47 of the Code.

(50.) On question No. 5, it is held that in the context of S.97(2)(a) the right to file an appeal accrues only on the passing of the actual order under S.47 of the Code and not earlier.

(51.) Now, in the light of the above, it is common ground that the order under S.47 herein was passed by the learned Subordinate Judge, Bhagalpur, on the 8th of August, 1978. This obviously was long after the enforcement of the amending Act on the 1st of February, 1977. Consequently, no appeal against the said order would now be maintainable. The right to move against the order also would accrue on the 8th of August, 1978 and, therefore, cannot even remotely be brought within the ambit of S.97(2)(a) of the amending Act. Therefore, the claim of the petitioners to a right of appeal must be rejected and they must rest content with the revisional forum. The case would now go back to the learned single Judge for a decision on merits.

(52.) S.K. JHA, J. :- I entirely agree with the learned Chief Justice and find nothing to be usefully added thereto.

(53.) S.K. CHOUDHURI, J. :- I had the advantage of going through the judgement prepared by my Lord the Chief Justice.

(54.) As it was argued vehemently at the Bar that some of the important relevant statutory provisions of the Code of Civil Procedure, 1908 as amended by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976) hereinafter referred to as the Amending Act, were not placed when the decision in Parshava Properties Limited v. A.K. Bose, AIR 1979 Pat 308 [LQ/PatHC/1979/109] was given, the said decision requires reconsideration. I have, therefore, very carefully gone through the aforesaid reported decision and also several important amended statutory provisions relied upon at the time of argument. On perusal of the Parshava Properties Limited case (supra), it appears that Mr. Lal Narain Sinha, an eminent Counsel of fame, who by his able and persuasive argument could persuade us to accept the view canvassed by him on the basis of the decision in Dokku Bhushayya v. Katrayadda Ramakrishnayya, AIR 1962 SC 1886 [LQ/SC/1962/199] , that the expression with regard to the matters in suit occurring in S.2(2) of the Code of Civil Procedure and the expression with reference to the suit occurring under O.XXXII, R.7 are practically the same and in regard to the final determination, according to the Supreme Court, O.XXXII, R.7 applied, while it would not apply to interlocutory matters. This led us to the conclusion that the expression suit is capable of being interpreted in a proper context, as including an execution proceeding.

(55.) However, in this case we also noticed the well known principle that while interpreting the statute, anomalies and patent injustice should be avoided unless compelled by express language of the statute and also quoted the relevant portion from the judgement of Lord Simon in Rugby Joint Water Board v. Foottit, (1972) 1 All ER 1057. On closer examination of the arguments advanced, now it appears that some of the important provisions as inserted by the Amending Act, were not considered then. These provisions are S.97(2)(a) and other clauses of this Sub-Section and S.97(3) of the Amending Act. Reference was also made at the Bar to S.99A and O.XXI, R.46-Hxand R.58(4) and R.103, which have been inserted at their proper place in the Code of Civil Procedure by the Amending Act. The other important provision referred to was S.47 itself and particular attention was drawn to the omission of Sub-Sec. (2) of S.47 of the Code of Civil Procedure, as it stood before the amendment. The definition of order, as defined in S.2(14) was also referred. I shall read only a few of the aforesaid provisions, namely, S.97(2)(a) and S.97(3) of the Amending Act and S.99A, which has been inserted in the Code of Civil Procedure by the Amending Act. They read as follows :- "97. Repeal and savings.- (2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-Sec. (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 Cl.(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; (3) Save, as otherwise provided in Sub-Sec. (2), the provisions of the principal Act as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement." "99-A. No order under S.47 to be reversed or modified unless decision of the case is prejudicially affected.- Without prejudice to the generality of the provisions of S.99, no order under S.47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error defect or irregularity has prejudicially affected the decision of the case."

(56.) It is not necessary to quote the definition of decree in S.2(2) as it stood before the amendment and as it stands, now, as also S.47 because they have already been quoted in the main judgement. The definition of term "Order" has been defined under S.2(14) in the following language :- " Order means the formal expression of any decision of a Civil Court which is not a decree." It is then to be noticed the change which has been brought about in S.47 by the Amending Act. By this amendment, Sub-Sec. (2) of S.47, which reads as, "The Court may, subject to any objection as to limitation of jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding and may, if necessary, order payment of any additional court-fees" has now been dropped. In view of the several changes brought about by the Amending Act in the principal Act, namely, the Code of Civil Procedure, 1908, the legislature thought it proper to introduce a new section, namely, S.99A already quoted above under Chap. VII headed by "APPEALS". It was argued that in view of the insertion of S.99A in Chap. VII after S.99, an appeal would lie from such order, if it attracts the first part of the definition of "Decree" as defined in S.2(2). It was argued that in spite of dropping of the deeming provision, which gave any order passed under S.47 the force of a decree, if an order under S.47 comes within the first part of the definition of decree an appeal would certainly life. While elaborating the argument, it was pointed out that the definition says that "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy......" This argument in the first instance appeared to me to be very attractive, but on closer scrutiny of the relevant provisions of the, which were not noticed in the Parshava Properties Limited case (AIR 1979 Pat 308 [LQ/PatHC/1979/109] ) (supra), the argument advanced appears to have no substance.

(57.) Section 99A became necessary to be inserted by the Amending Act to save such appeals filed against orders passed under S.47, which were pending before the commencement of the Amending Act and also such appeals which may be filed against the orders passed under S.47 before the amendment came into force and by virtue of the deeming fiction of the definition of "decree as it stood before the amendment, such orders were deemed to be decree.

(58.) It may be pointed out here that S.99A has not used the word pending and it had positive purpose behind such omission, because the legislature contemplated to save not only the pending appeals, but also save appeals from orders passed before the Amending Act came into force. This word pending before the word appeal has also purposely not been used by the legislature, in S.97(2)(a) of the Amending Act, though the word pending has been used in several other clauses of this Sub-Section. These two Sections read together conforms the view in favour of negation of the argument that by insertion of S.99A under Chap. VII, appeals would lie from such orders under S.47 which falls within the first part of the definition of decree even after the deletion of "S.47 or" from it.

(59.) The appeals from orders which had the force of a decree by virtue of the deeming fiction in S.47 to be a decree, under S.2(2) and dropping Sub-Sec. (2) of S.47, which gave right to a Court to treat a proceeding under S.47 as a suit or a suit as a proceeding and to realise Court-fee, if necessary and insertion of S.99A and S.97(2)(a) read with S.97(3) clearly show that after the amendment of the definition of Decree in S.2(2), it was never the intention of the Legislature to keep alive a right of appeal from an order passed under S.47. That right has been expressly taken away by amending the definition of the "decree". It will also be apposite to notice that the decree in the suit has already been passed which is under execution and a controversy has been raised in the execution stage by filing an application under S.47 in relation to execution, discharge and satisfaction of the decree. An order passed on such an application cannot again be considered to be another decree passed in the same suit and thereby giving a right to appeal to a suitor. The deeming provision in S.2(2) which now stands deleted saved that right of appeal previously. The word suit to include execution proceeding has been interpreted in Dokku Bhushayyas case (AIR 1962 SC 1886 [LQ/SC/1962/199] ) (supra) in a different context. The said principle cannot therefore apply in the present case.

(60.) Section 97(3) of the Amending Act quoted above if read with Sub-Sec. (2) carefully, the only interpretation that can be given to Sub-Sec. (3) is that whatever has not been saved in Sub-Sec. (2), the principal Act as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of this Act, or instituted or filed after such commencement notwithstanding the fact that the right or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, has been acquired or accrued before such commencement. It will not be out of place to mention here that various clauses of Sub-Sec. (2) of S.97, if carefully read and properly scrutinised, it would be found that different clauses use different expressions for saving some litigations. The expressions life, pending immediately before the commencement of shall not apply to or affect any suit; appeal or proceeding instituted or filed before the commencement of....., shall not apply to or affect any appeal from an appellate decree or order which have been admitted before the commencement of,.... ; shall not apply to or affect any appeal pending immediately before the commencement of,....., have been used by the legislature, so as not to affect those litigations by the Amending Act. The injunction order as also the abatement order passed before the commencement of the Amending Act have also been saved. Pending suits have also been saved and it has been said that the amended S.20 of the principal Act shall not affect such pending suits.

(61.) Thus it would appear that Sub-Sec. (2) of S.97 has saved various litigations which the legislature thought proper to save them. Sub-Sec. (3) of S.97 has covered all other litigations not covered by S.97(2).

(62.) Now in order to strengthen my conclusion, I will also refer to three of the amended provisions of Order XXI of the Code of Civil Procedure. One has to read these provisions keeping in view that the deeming provisions which gave all orders passed under S.47 the force of a decree, has been dropped from the definition of decree. The legislature, therefore, in view of dropping of such right of appeal which was given to the litigants against any order passed under S.47, thought it proper in the circumstances of the case to give right of appeal against some orders passed in the execution stage by inclusion of deeming provision in some of the Rules thereof. Reference may be made to Order XII, Rule 46H, Rule 58(4) and R.103. Orders passed under these provisions in the execution proceedings by virtue of the deeming provisions, have been inserted in the Amending Act giving the force of a decree thereby giving right of appeal which were not there previously. Order XII, Rule 46H reads thus : "46H. Appeals. - An order made under R.46B, R.46C or R.46E shall be appealable as a decree." Rule 58(4) of O.XXI, C.P.C. reads thus :- "Where any claim of objection has been adjudicated upon under this rule, the order made thereon, shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree." Lastly reference is made to R.103, which may be read as :- "103. Orders to be treated as decrees - Where any application has been adjudicated upon under R.98 or R.100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree." Lastly notice of the following provisions may be taken which give express right of appeal against some type of orders passed in the execution stage. Those provisions are O.XLIII, R.1(i), (j) and (ja) and we read here as follows :- "(1) An appeal shall lie from the following orders under the provisions of S.104, namely, (i) an order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; (j) an order under R.72 or R.92 of O.XXI setting aside or refusing to set aside a sale; (ja) an order rejecting an application under sub-rule (1) of R.106 of O.XXI, Provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of R.105 of that Order is appealable."

(63.) Thus it appears that the legislature took special care to give right of appeal against matters in the execution stage as the general right of appeal from any order passed under S.47 has been taken away under the amended Act.

(64.) In view of the discussions made above and after giving my anxious consideration on the question posed I cannot but agree with the main judgement given by my Lord the Chief Justice.

(65.) B.P. JHA, J. :- This civil revision petition has been filed by the petitioners against an order dated 8-8-1978.

(66.) The present revision petition arises out of an execution proceeding. In the execution proceeding, objection under S.47 of the Code of Civil Procedure was filed by the petitioners. Two petitions were filed before the execution Court - one was in respect of the preliminary hearing on the point of law, and the second petition was in respect of the objection raised under S.47 of the Code of Civil Procedure.

(67.) The Court below ought to have decided both the matters in one judgement. In the present case, however, the Court below decided only the preliminary point of law, and not the other objection raised in the second petition. I am setting aside the whole order and direct the Court below to decide the preliminary point of law as well as the objection under S.47 of the Code of Civil Procedure in accordance with law, after hearing the parties. The Court below is directed to dispose of these matters within a period of three months from the date of receipt of a copy of this order.

(68.) In the result, the civil revision petition is allowed, the order dated 8-8-1978 passed by the Court below is set aside and the Court below is directed to decide the preliminary point of law as well as the objection under S.47 of the Code of Civil Procedure in accordance with law as directed above. The parties shall bear their own costs.

(69.) Let the records may be sent immediately to the Court below. Order accordingly.