Ramesh Kumar Swarupchand Sancheti v. Rameshwar Vallabhram Bhatwal*

C.S. DHARAMADHIKARI, J.

The present petitioners-plaintiffs filed ejectment suit in the year 1967 and the decree came to be passed in the said suit on 30th October, 1968. In appeal to District Court the said decree was reversed and therefore, the original plaintiffs filed writ petition before this Court bearing Special Civil Application No. 1991 of 1975 which came to be decided on 21st February, 1981. The High Court reversed the order passed by the Appellate Court and confirmed the judgment and decree passed by the trail Court. It then appears that thereafter a Special Leave Petition bearing No. 6041 of 1980 was filed before the Supreme Court which came to be rejected on 29th October, 1980. During the pendency of the Special Leave Petition before the Supreme Court a Darkhast for execution of the decree was filed by the plaintiffs-decree holders on 10th of July, 1980. The Supreme Court while rejecting the said Special Leave Petition on 29th of October, 1980 granted time to respondents to deliver possession of the premises by 29th April, 1981. In the execution proceedings the plaintiffs filed three applications i.e. Exhibits 54, 55 and 57. Exhibits 55 and 57 came to be dismissed by the learned Civil Judge, (Junior Division) Chalisgoan by this order dated 18th September, 1981. Against this decision Civil Revision Application No. 1007 of 1981 is filed. Exhibit 54 was partly allowed by the trail Court i.e. the learned Civil Judge (Junior Division), Chalisgoan on 18th September, 1981. This application was filed for issuance of possession warrant qua certain articles. The prayer made therein was partly allowed and was partly rejected. The plaintiff had filed the Civil Revision Application No. 1008 of 1981 against the partial rejection of his application Exhibit 54. When both these matters were placed before the learned Single Judge of this Court (Masodkar, J.) a contention was raised before him that these revision petition are not maintainable and the plaintiffs should have filed appeals against the impugned orders. In support of this contention reliance was placed upon the decision of the Single Judge of this Court i.e. Tulpule, J., which is reported in Notes of cases (Note No. 1) in 1979 Mh.L.J. (Ibrahim Khan v Kasaipura Bunch Bungla Trust)1. On the other hand the petitioners plaintiffs relied upon another single Judge decision in (Civil Revision Application No. 104 of 1971 decided on 9th of April, 1979 by Parekh, J.)2. Since Masodkar J found that there is apparent conflict in these two decisions as well as the view taken by different High Courts with regard to the tenability of the appeal, he referred the matter to the Division Bench. Therefore, these two Civil Revision Applications are placed before us, for deciding the said question.

2. Shri Jhaveri, the learned Counsel appearing for the petitioners plaintiffs contended that in view of the amendment to section 2(2) of the Code of Civil Procedure by Amending Act 104 of 1976 which came into force on 1st of February, 1977 an appeal against the impugned order is not maintainable and therefore, the plaintiffs have rightly filed these civil revision applications. In support of this contentions he has placed reliance upon the Full Bench decisions of the Allahabad High Courts in A.I.R. 1980. All. 42 (Pratap Naraian Aggarwal v. Ram Naraian Agarwal and others)3, decision of Rajasthan High Court in A.I.R, 1978 Raj. 127, [LQ/RajHC/1977/261] (Mohan Das and others v Kamla Devi)4, decision of the Kerala High Court in A.I.R. 1978 Kerala 201, (Mohammad Khan v. State Bank of Travancore)5 and A.I.R. 1981 Kerala 18 (Kuriakose v. P.S. Narayanan Nair)6, decision of the High Court in A.I.R. 1980 Gauhati 3, (Tapan Chandra Deb Barma and others v. Dulal Chandra Deb Barma and others)7, decision of Punjab High Court in A.I.R. 1979 Punjab 262 (Ram Niwas v. Mithan Lal and others)8, decision of Andhra Pradesh High Court in A.I.R. 1980 A.P. 209. (Marriddi Janikamma and others v. Hanumantha Vajjual Paradesi Sarma and others)9, decision of the Orissa High Court in A.I.R. 1982 Orissa 9, (Mst. Sarabai Agarwalla and others v. Haradhan Mohapatra and others)10, and a decision of Gujarat High Court in A.I.R. 1982 Gujarat 324 (Hasumatiben v. Ambalal Krishnalal Parikh)11 as well as decision of Parekh, J., referred to above.

3. On the other hand it is contended by Shri Abhyankar that a right to file an appeal has been recognised by the judicial decisions as right which vests in suit or at the time of institution of the original proceedings and any change in law which adversely touches this vested right is presumed not to be retrospective. Such a vested right is saved by section 97(2)(a) of the Amending Act itself. According to Shri Abhyankar the provisions of section 97(3) of the Amending Act are subject to the provisions of section 97(2)(a). Various clauses of section 97 clearly indicate that the rights which are vested in the litigant are wholly saved and the Amending Act has no retrospective effect. In support of this contention Shri Abhyankar has placed reliance upon the decision of Madhya Pradesh High Court in A.I.R. 1981 M.P. 16. (Chuluram v. Bhagatram)12, decision of Delhi High Court in A.I.R. 1979 Delhi 40, (Syndicate Bank New Delhi v. M/s. Rallies India Ltd. New Delhi)11, decision of Orissa High Court in A.I.R. 1978 Orissa 129 (Nanda Kishore Moharana v. Mahabir Prasad Lath)14, decision of the Supreme Court in A.I.R. 1957 S.C. 540, (Garikapati Veeraya v. N. Subiah Choudhry and others)15, and the decision of Tulpule, J., referred to herein above.

4. The term decree is defined by section 2(2) of the Code of Civil Procedure. The definition as it stood before amendment of 1976 read as under :

"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 47 or section 144, but shall not include---

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation...................."

In our opinion there is much substance in the contention raised by Shri Jhaveri, the learned Counsel for petitioners-plaintiffs. By the Amending Act No. 104 of 1976 the words section 47 or are omitted. The omission of words section 47 or from section 2(2) of the Code is not accidental but is deliberate and intentional. From the report of the Joint Committee it is clear that the Committee took note of the fact, that since the definition of decree included determination of any question under section 47, an appeal and second appeal would lie against such a determination. Therefore, in its report the Committee expressed the view that this provision of the Code was mainly responsible for the delay in execution of the decrees. This was the reason why Committee recommended that these words should be omitted so that the determination of any question under section 47 may not amount to a decree. Even under unamended definition a status of decree was given to such determination, by creating a deeming fiction. Therefore, as a result of omission of words section 47 or and section 97(3) of the Amending Act 104 of 1976, the said status is no more available to the order passed under section 47 of the Code, hence no appeal is maintainable against such a determination. Any other construction will defeat the very object and intention of the Legislature. Then comes section 97 of the Act No. 104 of 1976 which is repealing and saving clause, and on which reliance is placed by Shri Abhyankar. The relevant provisions of the said sections read as under :

"97(1) Repeal and savings.---(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.

97(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 section 6 of the General Clauses Act, 1987 (10 to 1897).

97(2)(a) the amendment made to Clause (2) of section 2 of the principal Act by section 3 of this Act shall not affect any appeal against the determination of any such question as is referred to in section 47 and every such appeal shall be dealt with as if the said section 3 had not come into force :

Then comes section 97(3) which reads as under :

"97(3) Save as otherwise provided in sub-section (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, cause of action, in pursuance of which such suit, proceedings appeal or application is instituted or filed, had been acquired or had accrued before such commencement".

5. It appears that Tupule, J., took a view that since the right to file an appeal is substantive right which vests in a litigant on the date of the filing of the suit itself, the said right is wholly saved by section 97(2)(a) and is not taken away by section 97(3). In support of his findings Tulpule, J., placed reliance upon the decision of Delhi High Court in A.I.R. 1979 Delhi 40 Syndicate Bank New Delhi v. M/s. Rallies India Ltd., New Delhi, and did not follow Allahabad decision reported in A.I.R. 1980 AII. 42, Pratap Narain Agarwal v. Ram Narain Agarwal. On the other hand Parekh, J., followed the view taken by the Allahabad High Court in Pratap Narains case and held that the view taken by Patna High Court in A.I.R. 1979 Patna 308 (M/s. Parshava Properties Ltd. v. A.K. Bose)16 not the correct view of the law. We have gone through the various decisions cited before us, at the Bar and we respectfully agree with the view taken by the Full Bench of the Allahabad High Court in Pratap Naraians case wherein it was held by the Full Bench that section 97(2)(a) preserves a right of appeal against the order passed under section 47 of the Code in respect of appeals already pending on the date of enforcement of the Amending Act as well as in respect of the appeals where orders on objection filed under section 47 had already been passed before the enforcement of the Civil Laws (Amending Act) 1976. This is what the Full Bench of the Allahabad High Court observed in para 21 and 22 of the judgement :

"21. From the manner in which the amendment was made in section 2(2) of Civil Procedure Code, the irresistible conclusion is that the intention of the legislature was to effect the vested right retrospectively. This intention has been manifested by express words. Even otherwise, the necessary implication of the amendment appears to be that the same was made to be a retrospective operation. It could not be and was not argued that despite the amendment made in section 2(2) an order passed on an objection filed under section 47 after the amendment would amount to a decree. The question only was with respect to the pending applications on the date of enforcement of the amendment. The fact that after the amendment a decision on an objection under section 47 would not amount to a decree, establishes that the decision given on objections can no longer be treated as decrees.

22. We have already noted that report of the Joint Committee which gave the reasons for bringing about the amendment in the definition of the term decree. The report of the Joint Committee is an aid to the construction and, as such, can be looked into for ascertaining or determining the intention of the legislature. The report leaves no room for doubt that the intendment behind the amendment was to deprive a party of his right to file an appeal which accrued against an order passed under section 47.

This amendment negatives any appeal which lay previously. For our view, we find support from a decision reported in Mohan Das v. Smt. Kamla Devi, A.I.R. 1972 Raj 127 [LQ/RajHC/1971/69] . "

As we are in respectful agreement with the view taken by the Full Bench of the Allahabad High Court it is not necessary to make detailed reference to the several decisions cited before us. In our opinion the intention of the legislature is quite clear from the omission of the words section 47 or" from section 2(2) of the Code. It is well settled that if two interpretations of a provision are possible then one which is in tune with the intention of the legislature should be preferred. This intention of the legislature is further clear from section 99-A which reads as under :

"99-A. Without prejudice to the generality of the provision of section 92, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceedings relating to such order, unless such error defect or irregularity has prejudicially affected the decision of the case."

The provision became necessary because of the amendment to section 2(2), if the provisions of section 2(2) as amended and section 97(2), 97(3) and 99-A are read together, and harmoniously, then it is quite clear to us that the amendment is retrospective in operation. It cannot be disputed that legislation has a plenary power of legislation within the field of legislation and subject to certain constitutional restrictions it can legatees prospectively as well as respectively. An enactment can be given retrospective effect expressly or by necessary implication. Section 2(2) of the Code was obviously amendment to affect the vested right of appeal retrospectively. This intention is manifest from the deliberate and express omission of words "section 47 or" from section 2(2) of the Code. Even otherwise such a conclusion is inevitable by necessary implication. Viewed it from any angle, it appear to us that section 2(2) was amended to give it retrospective effect.

6. Similar view is taken by Chandurkar, in (Kisan Ranchhodas v. Lalaji Dharamdas)17, 1982 Mh.L.J. 216, while dealing with effect of the provisions in Order 21, Rules 97 to 103 introduced by the amendment to Code of Civil Procedure. The relevant observations in paras 10 and 11 read as under :

"10. Now it is difficult to see how the learned Council for the petitioner can place reliance on reference to section 8 of the General Clauses Act made in section 97 of the Code of Civil Procedure (Amendment) Act, 1976. Section 97(1) is the repealing provision and the saving provision is in sub-section (2). Under section 97(1) of the Amending Act any amendment made by the State Legislature or by the High Court in the Code of Civil Procedure before the commencement of the Amending Act were to stand repealed in so far as the amendments were inconsistent with the provisions of the Amending Act. Sub-section (2) provides that certain provisions as amended will not affect certain pending matters.........

Now the effect of sub-section (2), in so far as the provisions of Order 21 referred to in the Clause (q) are concerned, will be that apart from the effect of the general provisions in section 6 of the General Clauses Act, the Parliament has expressly provided inter alia that any suit instituted before the commencement of the Amending Act under Rule 63 or Order 21 to establish right to the attached property or under Rule 103 to establish possession will not be affected by the provisions of the amended Code and they shall be determined as if the provisions mentioned in Clause (q) have not come into force. It is obvious that when reference was made to section 6 of the General Clauses Act, the purpose was merely to indicate that the specific provision in section 97(2) was being made in addition to the general provision of section 6, General Clauses Act in order to provide that the pending suits under Order 21, Rule 103 would not be affected by the amended provisions in Rule 97 to 103 of Order 21".

11. The learned Counsel for the petitioners argued that the original proceeding under section 41 of the Presidency Small Cause Courts Act of which the obstructions arose commenced prior to the coming into force of the Amending Act and, therefore, the remedy by way of a suit provided by the earlier provision in Rule 103 must be treated as saved by virtue of Clause (e) of section 6 of the General Clauses Act. This argument however must be rejected in view of the express provisions of sub-section (3) of section 97 of the Amending Act, which is a complete answer to the contention that the rights of the petitioners are not regulated by the new provisions in Rule 103...............

It is clear from the words of section 97(3) that except for the matters which are mentioned in the Clauses (a) to (zb) of section 97(2), all other matters, whether pending or instituted or filed after the commencement of the Amending Act, would be regulated by the amended provisions. Therefore, whether we treat an obstructionist proceeding as a continuation of the original application for eviction or whether we treat that proceeding as newly instituted after the commencement of the Amending Act, the provisions of sub-section (3) of section 97 of the Amending Act leave no room for doubt that the amended provisions in Order 21, Rule 98 to Rule 103 will be attracted in the instant case. Once the provisions of section 97(3) are attracted it is obvious that the only remedy was by way of an appeal against the order of the Court in the obstructionist proceedings and under Rule 103 if no such appeal is filed that order will become final and an independent suit to establish the right which has been negatived under Order 21, Rule 98, will not be maintainable. There is thus no error in the view taken by the Appeal Bench of the Small Causes Court, that the suit filed by the petitioners is not maintainable".

7. The view taken by the Full Bench of the Allahabad High Court is followed by Gauhati High Court in A.I.R. 1980 Gauhati 3, Tapan Chandra Deb Barma and others v. Dulal Chandra Deb Barma and others, by the Orissa High Court in A.I.R. 1982 Orissa 9, Mst. Sarabai Agarwal and others v. Haradhan Mahopatra and others, by the Gujarat High Court in A.I.R. 1982 Gujarat 324 Hasumatiben v. Ambalal and by the Kerala High Court in A.I.R. 1981 Kerala 18, Kuriakose v. P.K. Narayanan Nair. A contention similar to one advanced by Shri Abhyankar was also advanced before the Kerala High Court in Kuriakoses case. While considering such a contention based on section 97(2)(a) read with section 6 of the General Clauses Act, this is what the Kerala High Court has observed in paras 7 and 8 of the judgment :

"7. This Clause, it was contended, saves appeals from orders on exception 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 section 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 section 47 which had been passed before that date. In these cases the amendment to section 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 section 2(2) had already come into existence-it did not understandably use the expression spending which would have limited it to one class and exclude the other.

8. I cannot agree that the other clauses in the section 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 the clauses and Clauses (j), (k), (m), (n) and (o) will show 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."

We are in respectful agreement with this view of Kerala High Court. Contrary view taken by the Patna High Court in A.I.R. 1979 Patna 308 M/s. Parshava Properties Ltd. v. A.K. Bose is rightly rejected by the Gujarat High Court in Hasumatibens case i.e. A.I.R. 1982 Guj. 324 [LQ/GujHC/1981/181] . The said observations read as under :---

"12........... We have already come to the conclusion that an order passed under section 47 of the Code is an order which was deemed to be decree with section 2(2) of the Code before the amendment and which is now deemed to be decree for the purpose of Order XXI, Rules 46-H, 58(4) and 103 of the Civil Procedure Code. For all other purposes they are not deemed to be decree, and therefore, the are orders. We, therefore, with respect cannot agree with the propositions laid down in the case of A.I.R 1979 Patna 308 (supra) that an order passed under section 47 of the Civil Procedure Code is covered by the first part of the definition of the word decree contained in section 2(2) of the Civil Procedure Code. We are of the view that an order passed under section 47 of the Civil Procedure Code was not covered by the definition of the word decree given in first part of section 2(2) of the Civil Procedure Code even before the amendment of section 2(2) of the Civil Procedure Code. In the circumstances the Parliament had in fact made a deeming provision and realising that unless such a deeming provision was made, an order passed under section 2(2) of the Civil Procedure Code would not become a decree they made that order to be a decree. The deeming provision is now taken out by the amendment and we have referred to the scheme of the Amending Act and it clearly appears to us that the Parliament clearly intended that the orders passed under section 47 of the Civil Procedure Code are not required to be made appealable as decrees and they made further provisions in Order XXI, wherever it was thought fit, that the orders passed should be made applicable to decrees. We have in our judgement referred to the definition of the word order contained in section 2(14) of the Civil Procedure Code and the added provision of section 99-A of the Civil Procedure Code. All these provisions were not considered in the judgment reported in A.I.R. 1979 Patna 308 (supra). We have, therefore, disagree with the views expressed in that ruling. We, therefore, hold that when executing Court passed an order under section 47 of the Civil Procedure Code it is an order which is not appealable as a decree unless it is expressly provided for in other provisions of the civil procedure Code"

Since we agree with the reasons give by the Gujarat High Court for rejecting the view of Patna High Court, We dont propose to deal with the said decision any further.

8. The decision of the Madhya Pradesh High Court as well as that of Patna High Court are also considered in the latest decision of the Orissa High Court in Sarabai Aggarwals case. As already observed by us orders under section 47 would never have been treated as decree except for the fiction created under section 2(2) of the Code. Once the definition has undergone the amendment and the said worse were expressly omitted, then they process of interpretation it cannot be held that the amendment has misfired and inspite of the amendment the said order still amounts to a decree. The main object behind the amendment was to reduce number of appeals. If the construction put up by the Madhya Pradesh, Patna and Delhi High Courts is accepted, then the very purpose of the amending enactment will frustrated. Therefore in our option the view taken by the Full Bench of the Allahabad High Court is the correct view of the matter and section 97(2)(a) only preserved a right of appeal against the order passed under section 47 of the Code in respect of the appeals already pending on the date of the amending Act as well as in respect of the appeals where orders on objection field under section 47 had already been passed before the coming into force of the said Amending Act. In case where the order under section 47 is already passed before the enforcement of the amending Act, an appeal is capable of being filed, if not actually filed subject to law of limitation and other procedural requirements. Therefore, such a right is also preserved by section 97(2)(a) of the Act.

9. In the present case the Darkhast in execution proceedings was filed on 10th July, 1980. Applications i.e. Exhibits 54, 55 and 57 were filed thereafter and they came to be decided by the orders passed on 18th September, 1981. Thus the very execution proceedings were initiated after the amending Act came into force. Therefore, obviously in the view which we have taken the appeals against the said orders were not maintainable and therefore, the only remedy left to the plaintiffs was to file Civil Revision Applications under section 115 of the Code of Civil Procedure. Therefore, these Civil Revision Applications will have to be heard on their merits in accordance with law. Since under the rules of the High Court these Civil Revision Applications are to be heard by a Single Judge of this Court, these matters may be placed before the Single Judge dealing with the Civil Revision Applications for deciding them on merits in accordance with law.