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Mst. Sarabai Agarwalla and ors. Vs. Haradhan Mohapatra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 643 of 1979
Judge
Reported inAIR1982Ori9; 52(1981)CLT535
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 47; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(2)
AppellantMst. Sarabai Agarwalla and ors.
RespondentHaradhan Mohapatra and anr.
Appellant AdvocateS.S. Basu, Adv.
Respondent AdvocateP.K. Misra and ;L. Mahapatra, Advs.
DispositionRevision allowed
Cases ReferredParshava Properties Ltd. v. A. K. Bose
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........come into force.' prior to the amendment, an order under section 47 of the civil p. c. was open to appeal as a decree in view of the definition of 'decree'. after amendment, orders under section 47 were no more taken as decrees. legislative intention with reference to section 97(2)(a) of the amending act is clear that notwithstanding such amendment, appeals pending on the date of the amending act came into force, were to continue without being affected by the amending act. it necessarily follows that the parliament intended that all matters which are not covered by section 97(2)(a) coming under section 47 of the civil p. c. would be governed by the amending act. therefore, the order of the executing court passed long after the amending act came into force had to be dealt with in terms of.....
Judgment:
ORDER

R.N. Misra, C.J.

1. This is an application of some of the heirs of the decree-holder auction-purchaser challenging the reversing appellate decision of the learned Additional District Judge of Sambalpur holding that their application for being put into possession was barred by limitation.

2. One Mathura Prasad Agarwalla, husband of the petitioner No. 1 and father of the remaining petitioners as also of opposite party No. 2 filed a money suit against opposite party No. 1. The said suit was decreed on compromise. Execution Case No. 98 of 1968 was levied by the decree-holder for realisation of the decretal dues as opposite party No. 1 failed to satisfy the decree in terms of the compromise. In the execution case attachment and sale of certain lands were prayed for and ultimately the attached lands were sold for satisfaction of the decree and the decree-holder purchased the lands at the auction. Sale was confirmed on 24-7-1971 and the sale certificate was signed and issued to the auction purchaser in due course. The decree-holder applied for delivery of possession and the executing Court directed possession to be delivered and the writ for delivery of possession was issued and the execution case was posted to 26-11-1971 for return. The writ was received back on 17-12-1971 after due execution on 21-11-1971, but Mathura Prasad was already dead on 5-11-1971. Judgment-debtor objected to such delivery of possession taken through the power-of-attorney holder as the principal was dead and the authority to act on behalf of the decree-holder had lapsed. The executing Court accepted the objection by order dated 21-2-1972 and ordered that the legal representatives of the decree-holder-auction-purchaser may come up with the prayer for fresh delivery of possession. Thereupon the heirs applied on 23-12-1975 for substitution and substitution being allowed they filed an application for issue of writ of delivery of possession. The move of the legal heirs was objected to by the judgment-debtor on the ground that the application had been barred by limitation. The executing Court upon hearing parties by order dated 2-11-1978 overruled the objection and directed issue of fresh writ of delivery of possession in favour of the legal heirs.

Against the said decision, an appeal was carried to the Additional District Judge at Sambalpur in Miscellaneous Appeal No. 43 of 1978 and the learned appellate Judge reversed the decision of the executing Court and held that the application was barred by time and accordingly no writ for delivery of possession could be issued. This reversing order of the appellate Court is assailed in the present revision application.

3. The main submission of counsel for the petitioners is that the order of the executing Court was not amenable to an appeal and the Additional District Judge had no jurisdiction to reverse the order of the executing Court. There is no dispute before me that the order made by the executing Court was one within the ambit of Section 47 of the Civil P. C. The order of the executing Court was passed on 2-11-1978, long after the Civil P. C. of 1908 underwent amendment by Central Act 104 of 1976. By the amending Act, the definition of 'decree' in Section 2(2) underwent an amendment and reference to Section 47 therein was omitted. Section 97 of the amending Act making provision for repeal and saving provided, as far as relevant :--

'(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, 1897,--

(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.' Prior to the amendment, an order under Section 47 of the Civil P. C. was open to appeal as a decree in view of the definition of 'decree'. After amendment, orders under Section 47 were no more taken as decrees. Legislative intention with reference to Section 97(2)(a) of the amending Act is clear that notwithstanding such amendment, appeals pending on the date of the amending Act came into force, were to continue without being affected by the amending Act. It necessarily follows that the Parliament intended that all matters which are not covered by Section 97(2)(a) coming under Section 47 of the Civil P. C. would be governed by the amending Act. Therefore, the order of the executing Court passed long after the amending Act came into force had to be dealt with in terms of the amending Act. It follows that on the date when the executing Court passed its order, an appeal did not lie against the impugned decision.

4. A Full Bench of the Allahabad High Court in the case of Pratap Narain Agarwal v. Ram Narain Agarwal, AIR 1980 All 42 (FB), considered this aspect of the matter. The learned Judges observed (at p. 47):--

'From the manner in which the amendment was made in Section 2(2) of the Civil P. C., the irresistible conclusion is that the intention of the legislature was to affect 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 an 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.

We have already noted the 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, AIR 1978 Raj 127.' The Full Bench also took note of Section 97(2)(a) of the Amending Act and referring to it pointed out (at p. 48) :--

'..... The expression shall not affect any appeal, in our opinion, does not take within its sweep even the cases where execution applications were pending before the executing Court. This expression is capable of an interpretation that where the right to appeal had accrued because of passing of a decree on an objection under Section 47, the same would not be affected by the amendment, inasmuch as in such a case decree had already come into existence. As the decree had already come into existence, it should be left untouched by the amendment made in Section 2(2). The amendment in Sub-section (2) of Section 2 was that an order would not amount to a decree. As it did not amount to a decree, such an order was riot appealable. But, where a decree had already come into existence, the amendment of Section 2(2) did not apply. Consequently, the legislature intended to save the right to file an appeal in such a case and for that purpose of saving Clause (a) in Section 97(2) was enacted.' To the same effect area host of decision of different High Courts. A learned single Judge in the case of Tapan Chandra Deb Barma v. Dulal Cbandra Deb Barma, AIR 1980 Gau 3, took the view that an order de-termioing question under Section 47 passed on or after 1-2-1977 when the amending Act came into force, no more amounted to a decree and no appeal lay. It also held that Section 97(2)(a) saved only pending appeals. To the same effect is a Bench decision of the Andhra Pradesh High Court in the case of Marriddi Janikamma v. Hanumantha Vajjula Paradesi Sarma, AIR 1980 Andh Pra 209. The Division Bench clearly held that the amended Code had retrospective effect and had applied to all pending proceedings except specifically provided otherwise, namely as in Section 97(2)(a) of the amending Act. A learned single Judge of the Kerala High Court in the case of Kuriakose v. P. K. Narayanan Nair, AIR 1981 Ker 18, has followed the Full Bench decision of the Allahabad High Court (AIR 1980 AH 42) (FB) as also the decisions of the Gauhati High Court and Rajasthan High Court, referred to above.

Contrary decisions are found in a case of the Madhya Pradesh High Court and in a case of the Patna High Court. In a Division Bench decision of the Madhya Pradesh High Court reported in AIR 1980 Madh Pra 16, (Chuluram v. Bhagatram), the view taken is that the amendment brought about in Section 2(2) of the Civil P. C. by which determination of any question under Section 47 does not now amount io a decree may not be construed to take away a vested right of appeal in pending executions. This inference is further strengthened, according to the Madhya Pradesh High Court, by Section 97(2) of the 1976 amendment Act which preserves the applicability of Section 6 of the General Clauses Act. Section 97(2)(a) of the amending Act provides that the amendment made to Section 2(2) of the Code shall not affect any appeal against the determination of such question as is referred to in Section 47 and every such appeal shall be dealt with as if Section 3 of the amending Act had not come into force. The Court further held that the amendment to Section 2(2) is not intended to be retrospective so as to take away vested right of appeal. The main object behind the amendment was to reduce the number of appeals. I am not inclined to agree with the view taken by the M. P. High Court. Section 97(2)(a) of the amending Act, as I have already pointed out, gives a clear indication of the legislative intention and what has been saved from the operation of the amendment is as specified in that provision. A Division Bench of the Patna High Court in the case of Parshava Properties Ltd. v. A. K. Bose, AIR 1979 Pat 308, put the matter somewhat differently thus (at p. 310) --'The definition before the amendment was thus in three parts. The first part sets out the essential characteristics which, if satisfied, would amount to a decree. The second part introduced a legal fiction. It said, inter alia, that determination of any question within Section 47 of the Code shall be deemed to be a decree. The third part states what shall not be a decree. By the amendment, the second part has been deleted, in so fur as any question under Section 47 is concerned. The effect thereof obviously is that the aforesaid statutory fiction disappears. It cannot now be said that the determination of any question within Section 47 is a decree. Nevertheless, if an order passed by a Court satisfies the essential characteristics of decree, us now defined, the mere fact that the order was passed in exercise of powers under Section 47 of the Code would not be of consequence.' Orders under Section 47 would never have been treated as 'decree' except on account of the definition in Section 2(2) of the Civil P. C. Once the definition has undergone an amendment, and the legislative intention is what I have indicated above, I do not think, the observations of the Patna High Court in paragraph 8 of the reported judgment at page 310 of the Reporter would indeed be applicable.

On the analysis presented above, I must hold that the impugned order of the executing Court did not amount to a decree and the appeal filed against that order was not maintainable in law.

5. The net result, therefore, is that the appellate order of the Additional District Judge must be vacated as having been rendered in an incompetent appeal. The civil revision is allowed. The order of the appellate Court is vacated and that of the executing Court is restored. Parties shall bear their own costs here.


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