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Challa Ramamurty Vs. Pasumarti Adinarayana Sons - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 6234 and 7655 of 1979, 1980, 3558, 4082 and 4129 of 1980 and 1104 of 1981
Judge
Reported inAIR1985AP42
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 47 and 99A; Code of Civil Procedure (CPC) (Amendment), 1976 - Sections 96, 97 and 97(2); General Clauses Act, 1897 - Sections 6
AppellantChalla Ramamurty
RespondentPasumarti Adinarayana Sons
Appellant AdvocateK.V. Subrahmanya Narsu, Adv.
Respondent AdvocateV.L.N.G.K. Murty, Adv.
Excerpt:
civil - effect of amending act - sections 2 (2), 47 and 99 a of code of civil procedure, 1908, sections 96, 97 and 97 (2) of code of civil procedure (amendment), 1976 and section 6 of general clauses act, 1897 - execution petition filed by decree holders - judgment debtors contended that they were small farmers and their debt must be deemed discharged - courts have taken view that plea should not be accepted on ground of act of 1976 - aggrieved by view of respective courts civil revision petition filed - right to appeal is substantive right which act should be construed to apply prospectively unless specifically provided in act about retrospective effect - vested rights can be taken away by legislature expressly or by necessary implications - definition of expression 'decree' amended by.....amareswari, j.1. common questions of law of considerable importance are raised in this group of revision petitioners. they are heard together and disposed of by this judgment. the facts:in execution proceedings by the decree-holders, the judgment-debtors contended that they were small farmers within the meaning of act 7 of 1977 and the debt must be deemed to have been discharged. the plea was accepted in some and rejected in others depending on the evidence. treating the decisions on this question as decrees, aggrieved parties filed appeals under s. 96 of the civil p.c. appeals were held to be maintainable in some and the cases were disposed of on merits. some courts took the view hat they are not maintainable in view of the amended sub-sec. (2) of s. 2 of c.p.c. aggrieved by the said.....
Judgment:

Amareswari, J.

1. Common questions of law of considerable importance are raised in this group of revision petitioners. They are heard together and disposed of by this judgment. The facts:

In execution proceedings by the decree-holders, the judgment-debtors contended that they were small farmers within the meaning of Act 7 of 1977 and the debt must be deemed to have been discharged. The plea was accepted in some and rejected in others depending on the evidence. Treating the decisions on this question as decrees, aggrieved parties filed appeals under S. 96 of the Civil P.C. Appeals were held to be maintainable in some and the cases were disposed of on merits. Some Courts took the view hat they are not maintainable in view of the amended sub-sec. (2) of S. 2 of C.P.C. Aggrieved by the said orders these revisions are filed.

2. The contentions of behalf of the petitioners are two-fold.

(1) Even after the amendment of sub-sec. (2) of S. 2 by Act 104 of 1976, decisions under S. 47 C.P.C. are decrees provided that they satisfy the tests mentioned in the first part of sub-sec. (2) of S. 2. Prior to the amendment, all decisions under S. 47 C.P.C. were decrees. By omitting the words 'Section 47' from the definition of decree, only decisions that have the attributes mentioned in the first part of the clause are decrees and the determination whether a person is a small farmer entitled to the benefits of Act 7 of 1977, though passed in execution proceedings is a decision in the suit and as such it is a decree appealable under S. 96 of the C.P.C.

(2) The amending Act 104 of 1976 has no retrospective operation and does not affect vested rights. It has no application to cases where decrees in suits were passed prior to the Act.

3. We will take up the first contention first. S. 2 Sub-sec. (2) prior to its amendment was as follows: -

'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 S. 47 or S. 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: - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be party preliminary and partly final.'

4. Sub-sec. (2) of S. 2 was amended by Act 104 of 1976 which came into force on 1-2-1977. The amended Section reads thus: -

'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 S. 144, but shall not include: -

any adjudication from which an appeal lies as an appeal from an order, or

a. any order of dismissal for default.

Explanation: - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.'

The amended Section omitted the words 'Section 47' from the definition of a 'decree'. S. 47 prior to the amendment was as follows: -

'47. (1): All questions arising between the parties to the suit is which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall e 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.

(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.'

The amended Act has omitted sub-section (2) of S. 47 The amended Section reads: -

'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.

(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.'

5. The amending Act has also introduced a new S. 99A which says that 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. In this connection S. 99 also deserves to be noticed. It says that no decree shall be reversed in appeal or substantially varied no account of any error, defect or irregularity not affecting the merits of the case, or the jurisdiction of the Court.

6. Now what is the effect of all these amendments? Sub-sec. (2) of S. 2 which defines a decree consists of three parts. The first part mentions that adjudications on rights of parties in the suit are decrees. The second part is an inclusive definition by which certain orders are deemed to be decrees. The third part specifies orders which cannot be deemed as decrees. But for the specific inclusion of certain orders in the second part, they are not decrees. For instance, the rejection of a plaint can never be said to be adjudication on the rights of the parties so as to mean a decree. But for its specific mention in the second part, it is not a decree. Similarly, the determination of a question within S. 47 or S. 144 falls under the inclusive definition. The very words 'shall be deemed to include' suggest, that, but for their inclusion, they would not be decrees. Otherwise, there is no necessity to say 'shall be deemed to include'. Now the amending Act 104 of 1976 omits the words 'Section 47' from sub-sec. (2) of S. 2. The omission is significant. The basic consideration which prompted the amendment as appears from the objects and reasons is to expedite disposal of civil suits and proceedings 'so that justice may not be delayed'. The intention is to shorten the litigation. This is evident from the report of the Joint Committee when the Bill based upon the recommendations of the Law Commission to amend the Civil procedure Code was referred. The committee expressed the view that the definition of 'decree' in the Civil Procedure Code which included the determination of any question under S. 47 was mainly responsible for the delay in execution of the decrees and suggested that the term decree may be suitably amended as not to include determination of question arising under S. 47. the Committee's report was accepted and the Bill was introduced in operating the same. This clearly indicates the intention of the legislature in passing the amending Act namely, to render the decisions under s. 47 as non-decree so that there may not be a further round of litigation by way of appeals. The whole object is to shorten the litigation to enable the decree-holders to enjoy the fruits of the decree. The parties should not have a second round of litigation.

7. It is strenuously contended by Mr. A. L. Narayana Rao, and V.L.N.G.K. Murty, that though by deletion of the words 'section 47' from the definition of decree, the statutory fiction disappears, still adjudication conforms to the requirements mentioned in the first part, it is a decree and the mere fact that the order was passed in exercise of the power under S. 47 of the Code would not be of any consequence. We are unable to see any force in this contention. The language of the Section does not lend support to this view. The determination contemplated in the first part of the definition is in respect of a controversy in the suit, whereas orders under S. 47 relate to execution. It is not in dispute that the impugned orders were passed in execution proceedings on the objection taken by the judgment-debtors that under S. 4 of the Andhra Pradesh Agricultural Indebtedness Relief Act of 1977 the debt was wholly discharged and that the execution proceedings had abated. The order having been passed in execution proceedings after the final decree in the suit, it cannot be said that the suit is still continuing. Execution proceeding start where the suit ends. In the context the 'suit' cannot be given a wide meaning so as to include proceedings in execution.

8. In Adaikappa v. Chandrasekhara, AIR 1948 P.C. 12, one of the orders in regard to which appealability was considered was an order of 9-2-1939 not made in execution proceedings, but made in a suit, Referring to this, the Privy Council said.

'The order of 9th February, 1939 was not made in execution proceedings, but it was made in a suit, and, in their Lordships' opinion, it amounted to the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, namely, whether the judgment-debtor was an agriculturist and entitled therefore to have his debt discharged or reduced under the Act. In their Lordships' opinion the order was a decree within the meaning of S. 2 (2) Civil P.C., and an appeal lay under S. 96 of the Code.'

The observation of the Privy Council that the order was not in execution proceedings but in suit lends support to the vies that there is a well defined distinction between a suit and execution proceedings.

9. The learned Counsel, however, relied upon D. Bhushayya v. K. Ramakrishnayya, : [1963]2SCR499 to say that the execution proceedings are only a continuation of the suit. The question in this case was regarding order 32 Rule 7 which says that no guardian can enter into a compromise on behalf of a minor without the leave of the Court. It was argued that the expression 'with reference to the suit' occurring in Order 32 Rule 7 includes execution proceedings also. It was held that Order 32 Rule 7 is one of the beneficial provisions designed to safeguard the interests of a minor during the pendency of a suit against hostile, negligent or collusive acts of a guardian, and that it is applicable to execution proceedings also though the expression used was with reference to the suit. In para 20 of the judgment, it is observed as follows: -

'20. The next limitation is that the protection is only during the pendency of the suit. When does a suit come to an end? It has been held that for the purpose of the said rule an execution proceeding is a continuation of a suit. If it was a continuation, the rule would also apply to an agreement or compromise proceeding. But just as in the case of a suit, in the case of execution proceedings, also, the agreement or compromise shall be one affecting rights or liabilities ascertained or declared by the decree put in execution. As in the case of a suit, so also in the case of an execution of a decree, mere procedural steps not affecting the rights or liabilities so declared are not governed by the provision. The guardian may agree to an adjournment of a sale, to a waiver of a fresh proclamation, to a reduction of upset price etc. It could not have been the intention of the Legislature that every time such a step is taken, the procedure laid down in order XXXII. R.7 of the Code should be complied with.'

These observations clearly show that there is a distinction between a suit and execution proceeding and they are not one and the same. Having regard to the object and the context, some Rules such as O.32 R. 7 were made applicable to execution proceedings also even though the expression in the Rule was 'with reference to the suit.' The judgment itself says that 'for the purpose of that rule' execution is a continuation of the suit. It is therefore clear that suit is distinct from an execution proceeding and having regard to the object of the amendment, we hold, that the adjudication in execution proceeding is not a decree within the meaning of the amended section.

10. It is then argued by the learned Counsel that S. 99-A would (not) have been introduced if the Legislature did not intend to preserve the right of appeal as it existed before the enforcement of Act 104 of 1976. It is submitted that s. 99-A would be rendered redundant if the interpretation placed on behalf of the respondents is accepted. It is urged that one of the principles of construction being that the Court should interpret a law a voiding redundancy, the Court should hold that the right of appeal is not affected because of the amendment made in S. 2 sub-sec. (2) of the Code. In this connection, the Counsel also points out that the fact that S. 99A is to be found in part 7 which deals with appeals, the Court must hold that the orders under S. 47 are still appealable. We are unable to find any force in this submission. Prior to the amendment, there was only S. 99 which said that no decree shall be reversed or substantially varied in appeal on account of any error, defect or irregularity not effecting the merits of the case or the jurisdiction of the Court. After the amendment, orders under S. 47 would not be appelable as decrees and consequently s. 99 would have no application. It was therefore, found necessary to have a new section restricting the powers of the Court to interfere with the decisions under S. 47. The legislature had therefore introduced S. 99A saying, that even a decision under S. 47 cannot be reversed on account of any mistake or omission. On the other hand, the insertion of S. 99A shows that the orders under S. 47 are not appealable. Further, a right of appeal must be specifically conferred by a statute. S. 99A does not confer a right of appeal. It only restricts the powers of the Court in the matter of interference with the decisions under S. 47. Revisions lie against orders which are not appealable and in such revisions, the powers of a revisional Court are circumscribed by S. 99A. While S. 99 deals with appeals against decrees and the powers of the Appellate Court in dealing with such appeals. S. 99A deals with the powers of a High Court. Appellate Court or revisional Court in interfering with orders under S. 47. The amendment does not efface or put an end to the pending appeals. It also does not prevent appeals being filed against orders which are admitted decrees. S. 99A applies to such cases. The powers of the Appellate Court and the revisional Court against orders under S. 47 are subject to the limitation mentioned in S. 99A. It is therefore futile to contend that S. 99A is rendered redundant.

11. In this context we may also refer to one other fact. In the Bill which preceded the Act the words 'in appeal' as recommended by the law Commission were dropped from S. 99A. The Bill was thereafter passed by the parliament introducing S. 99A as it stands now without the words 'in appeal'. The absence of the words 'in appeal' and the deliberate omission of the same as suggested by the Law Commission in S. 99A are significant. We have therefore no hesitation in rejecting this contention.

12. However, the learned Counsel for the petitioners placed strong reliance on a decision of the Patna High Court in Parshava properties Ltd. V. A.K. Bose, 0065/1979 : AIR1979Pat308 , which took a contrary view. We must confess that we are unable to understand the rationale behind the decision on the Patna High Court. Sarwar Ali, Acting Chief Justice, speaking for the Court observed that the provision has to be interpreted in a way that saves it from the challenge of art. 14, but with respect, we find that the actual decision on the point is not correct. The ratio of the Patna decision is on a two-fold assumption. It was said that there is no basis for classification for putting impleaded parties against whom the suit has been dismissed as on class different from persons who were not impleaded. This assumption in our opinion is incorrect. The relief in execution proceedings is modeled not mainly on the character of the litigant, but on the character of the relief claimed and the cause of action stated in the objection. The relief is available whether in a suit or appeal in which the objection is substantial. What was reduced by the amendment is the amplitude of the right of appeal. By virtue of the legal fiction, the special provisions of S. 10(i) wee defeated. That position is set right now. We fail to see how Art. 14 is violated. Further the Patna decision speaks of execution of a money decree and of the liability imposed by the executing Court on an exonerated defendant but the decision omits to refer to O.21 Rr. 30 and 31 to 54 and holds that the appeal would always be impermissible. It also overlooks the provisions of Cl. (iv) of R.58 and R.103 of O.21. We are also unable to agree with the observations about the non-maintainability of a suit in view of the provisions of S. 66(2) and O.21 R. 58 (v) and S. 104 which were also not referred to.

13. The Patna High Court also refers to the provisions of O.21 Rr.97 to 103 to show that there was a right of appeal to all parties if the disputes arise at the stage of delivery of possession of the property followed in the execution, but before the sale the right was not available to the impleaded party. From time (sic) it is said that the Legislature constituted a right of appeal in respect of final determination of matter not adjudicated upon. We find that the Court has overlooked the provisions of R.21, R.58 (iv) and s. 104(1) which do not specifically deny such right to the impleaded party before sale. We are also unable to agree with the Patna view that the word 'suit' occurring in first part of Section 2 sub-section (2) includes execution proceedings. The object and effect of the amendment lose their significance in the process of interpretation adopted in the decision. The reliance on the decision of the Supreme Court in D. Bhushayya v. K. Ramakrishnayya. : [1963]2SCR499 is not correct as the Supreme Court was only concerned with the interpretation of O.32 R.7 and in that connection observed that execution proceedings were continuation of the suit 'for the purpose' of that Rule. But the learned counsel submitted that the decision of the Patna High Court was referred to with approval by a Division Bench of this Court in G. Peddireddi v. g. Tirupathy Reddy. : AIR1981AP362 . The point that arose for consideration in the Division Bench case was whether an order refusing to record a compromise in a suit amounts to a decree. Prior to the amending Act 104 of 1976 an order refusing to record a compromise was appealable under Cl. (m) of O.43 R. (1). Cl. (m) was deleted by the Amending Act. It was contended that notwithstanding the deletion an appeal lies against the said order as it would be a decree within the meaning of the first part of S. 2 sub-section (2). The Court repelled the contention that the order cannot be held to be an adjudication which conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit 'nor can it be said to relate to execution.' From these words, it is argued that the Division Bench has ruled that if it was a matter relating to execution, it would be a decree. The latter observations are only there as the point was admittedly with reference to an order passed in the suit. The Court was not concerned whether an order in execution proceedings would amount to a decree subsequent to the amendment. The observations are only obiter. The reference to the Patna High Court's case was also in that connection. A precedent is an authority for what it actually decides. Hence the observations in the said decision are not binding.

14. The next contention is that the amending Act 104 of 1976 has no restrospective effect and does not affect the vested rights. It is urged that since execution proceedings were initiated prior to the amending Act the parties are governed by the law as existed on the date of filing of the execution petitions and as such appeals are maintainable. In all these cases orders under S. 47 are passed after the amending Act had come into force. In some cases even execution petitions are filed subsequent to the amending Act. Therefore, the petitioners go to the extent of saying that vested rights of appeal have accrued to them even on the date of decrees in the suits. The second argument in support of the maintainability of appeal is that S. 97(2)(a) preserves the right of appeal against an order made under S. 47 C.P.C. S. 97 of the Act 104 of 1976 in so far as it is relevant is as follows: -

'(1) Any amendment made, or any provisions inserted in the principal Act by the 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 amended by this Act stand repealed.

(2) Notwithstanding that the provisions of this act have come into force or the repeal under Sub-s. (1) has taken effect and without prejudice to the generality of the provisions of S. 6 to 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-s. 2(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 of 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'.

15. Whether the right of appeal is a substantive right and not merely a procedure was considered by the Supreme Court in Garikapati Veeraya v. Subbiah Choudhry, : [1957]1SCR488 . The Supreme Court ruled that the right of appeal is not a mere matter of procedure but is a substantive right. This was followed in subsequent decisions given by the Supreme Court. But so far as execution is concerned, the right accrues on the date of filing of the execution application and not on the date of filing of the suit. The proceedings in execution are independent of the suit and the right of appeal accrues on the date of institution of execution application. But the question is whether Act k104 of 1976 takes away that right. It is no doubt true that as far as possible vested rights should be preserved. It is also a sound principle that the Act should be construed to apply prospectively unless there is something in the Act either expressly or by necessary inference that it should operate retrospectively. It is a well settled proposition that the legislature can by law take away vested rights by specific provision or by necessary implication. Now let us wee whether Act 104 of 1076 intends to take away such a right. As has already been pointed out, the definition of decree has been amended and the decision under Section 47 ceases to be a decree and as such not appealable. The object with which the Section was amended as observed supra, is to avid unnecessary delays in execution proceedings. From the purpose with which S. 2 (2) is amended, it can be easily inferred that the intention was to affect the vested rights. This intention is manifest from the express words and also by necessary implication. The Joint Committee's report on the Bill clearly shows that the Legislature intended that no right of appeal should be given in proceedings relating to execution. The learned Counsel, however, relied upon S. 97(2)(a) and submitted that the right to file appeals in cases where execution proceedings were instituted prior to the Act has since been saved under the aforesaid provision, the appeal cannot be dismissed. In case where execution proceedings were instituted subsequent to the amending Act there is no question of vested right at all. In cases where appeals have been filed prior to the amending Act they are saved by S. 97(2)(a). But in cases where execution started prior to the Act and orders passed subsequently, we are of the clear opinion that no appeal lies as such orders are not decrees within the meaning of amended sub-section (2) of S. 2. The language of S. 97(2)(a) does not warrant such an interpretation. Under this clause the amendment made to sub-sec. (2) of S. 2 does not affect any appeal against the decision under S. 47. This expression does not in our opinion include cases where execution applications were pending and orders passed subsequently. On a careful consideration, we are of the view that where a right had accrued as a result of a decree being passed prior to the amendment, the same is not affected by the amendment. The order under S. 47 is a decree prior to the amending Act and if that be so a right had accrued to the party to file an appeal against such a decree and the same can be exercised even after the Act had come into force. What was admittedly a decree is not made non-decree after the amending Act. Orders under S. 47 prior to the amendment are decrees. S. 96 is not amended and S. 96 says that an appeal shall lie from every decree. But if an order is not a decree by virtue of the amending Act, no appeal shall lie under S. 96. Therefore, where a decree had already come into excistence, the right of appeal is not affected even though that right had not been exercised before he Act came into force. But, where a decree had not come into existence and by virtue of the amending Act the decision is not a decree, but only an order, no appeal lies as the right of appeal had not accrued. The language of S. 97(2) warrants the construction which we have placed on the said Section. S. 97(2)(a) also saves pending appeals as it expressly says that the amendment shall not affect any appeal against the determination of a question under s. 47 and that every such appeal shall be dealt with as if S. 3 had not come into force. The learned Counsel, however, submitted that since a reference is made to S. 6 of the General Clauses Act in S. 97 (2) and the rights conferred under that Section are preserved the right of appeal is not affected applying S. 6(1)(c)(b). We are unable to agree with this submission because sub-sec. (2) of S. 97 prevails over anything contained to the contrary in S. 6 of the General Clauses Act. S. 6 of the General Clauses Act itself says that the repeal shall not affect any right, previlege or obligation or liability acquired or incurred under any enactment so repealed unless a different intention appears. A different intention certainly appears from the amendment of S. 2(2). Therefore, S. 6 has no application. We find support for our decision in Partap Narain v. Ram Narain, : AIR1980All42 (FB).

16. For the reasons stated above, we hold that S. 97(2) preserves the pending appeals as well as appeals against orders under S. 47 which were passed prior to the amendment.

17. In the result, the Civil Revision Petitions excepting C.R.P. No.s. 3558 and 4104 of 1981 are dismissed, but in the circumstances without costs. C.R.P. No. 3558 of 1980 filed against the order of the appellate Court holding that the appeal is maintainable is allowed. No costs.

C.R.P. No. 4104 of 1980: -

18. This Civil Revision Petition is filed against the order of the trial Court. The same may be posted in the usual course for hearing.

19. Order accordingly.


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