Surjit Singh v. Sardara Singh And Another

M.R. Sharma, J.

1. A decree for possession by way of pre-emption was passed in respect of agricultural land measuring 113 Kanals and 9 Marlas against the petitioner on March 11, 1974 When the respondent took out execution proceedings, the petitioner raised an objection that the decree was inexecutable on the ground that if execution was allowed, the total land which the respondent would come to posses would go beyond his permissible area. These objections were dismissed by the learned Executing Court on April 22, 1978. The petitioner went in appeal before the learned Additional District Judge, Ambala. That appeal was dismissed on the ground that because of the amended Code of Civil Procedure no appeal lay against the order passed by the learned Executing Court dismissing the objections filed under section 47, Code of Civil Procedure. Feeling aggrieved against that order, the petitioner has come up in revision before me.

2. Mr. Liberban, the learned counsel for the petitioner, has argued that the execution proceedings were taken out on March 9, 1976 and he filed objections against the execution also before the end of the year 1976. The precise argument raised is, that since the proceedings started before the day on which the Code of Civil Procedure was amended, they should be held to be governed by the earlier Code of Civil Procedure. There is sufficient merit in the plea raised on behalf of the petitioner. Under somewhat similar circumstances, I held in Darshan Kour etc. v. Raghunandan Sharma (1978) 80 P.L.R. 368, that substantive rights of the parties which became subject matter of proceedings instituted prior to the amendment of the Code of Civil Procedure have been presented by the Legislature under sub-section (2) of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976. The rule laid down in that case aptly applied to this case also.

3. Mr. Sarin the learned counsel for the respondents, tried to argue that under the new Code the word "decree" has been defined differently and an order dismissing the objections filed by a judgment-debtor under Section 47 of the Code of Civil Procedure did not fall within the definition of the word "decree" so as to make that order appealable. The argument raised by Mr. Sarin would hold good only if it is held that the amended Code of Civil Procedure governed these proceedings. Since I have taken a contrary view in Darshan Kaurs case (supra), I am unable to agree with Mr. Sarin on this point.

4. For the reasons aforementioned, I allow this petition and remand the case to the learned Lower Appellate Court for a fresh decision of the appeal in accordance with law.

5. The parties through their counsel are directed to appear before the learned Lower Appellate Court on November 17, 1978.