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Kuriakose Vs. P.K. Narayanan Nair - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 1360 of 1978-I
Judge
Reported inAIR1981Ker18
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 47 and 96; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(2)
AppellantKuriakose
RespondentP.K. Narayanan Nair
Appellant Advocate P.N. Sankaranarayana Pillai, Adv.
Respondent Advocate K.J. Joseph and; T.K.M. Unnithan, Advs.
DispositionRevision dismissed
Cases Referred and Moban Das v. Kamla Devi
Excerpt:
.....exclude appeals from determination of questions under section 47 - amendment expressly took away right of appeal with retrospective effect - held, absence of vested right rendered appeal against overruling not maintainable. - - the committee therefore recommended 'that the definition of the term 'decree' should be amended so that the determination of queslions open under section 47 may not amount to a decree. in the bill section 99-a was included, but the words 'in appeal' contained in the section as recommended by the law commission were dropped. the amendment was deliberately introduced to deprive, retrospectively as well as of course prospectively, the parties of the right of appeals. ' 7. this clause, it was contended, saves appeals from orders on execution petitions pendiug..........lower appellate court. counsel for the petitioner however contended that he had acquired a vested right of appeal as the execution petition was filed in jan. 1977 when orders under section 47 were appealable and that this right has not been destroyed by act 104 of 1976. he also contended that despite the change in the definition of 'decree' with its impact on the appealability of orders, section 97 (2) (a) of the act preserves the right of appeal from an order under section 47 that the appeal to the court below was therefore competent for that reason. the short point in the revision is whether this contention is right.3. now as pointed out in subbiah chou-dhury, (air 1957 sc 540 which bas been followed in several subsequent cases) the right of appeal is a substantive right and not a.....
Judgment:
ORDER

G. Balagangadharan Nair, J.

1. The principal question that falls to be decided is whether the lower appellate court was wrong in dismissing the appeal out of which the revision arises, as not maintainable. On Jan. 5, 1977 the respondent-decree-holder filed an execution petition for recovery of the amount due to him. The petitioner who is the judgment-debtor raised objections to the execution claiming the benefits of Ordinance 1 of 1977 and later made an application E. A. 660 of 1977 for relief under Act 17 of 1977, which had, in the meanwhile replaced Ordinance 1 of 1977. After enquiry the execution court by its order dated Oct. 10, 1977 overruled the objections of the petitioner and dismissed E. A. 660 of 1977 and allowed the respondent to proceed with the execution. From this order the petitioner preferred an appeal in the Additional District Court, Parur. The learned Additional District Judge dismissed the appeal as not maintainable on the ground that the order was 'not a decree by virtue of the Amendment Act (Act 104 of 1976)'. The petitioner challenges this decision in the revision.

2. Before it was amended by Act 104 of 1976 the Code of Civil Procedure by Section 2(2) defined 'decree' to include, so far as material, 'the determination of any question within Section 47.' Act 104 of 1976 omitted the words 'within Section 47' from the definition of decree. The result of this omission was that determination of any question under Section 47 ceased to be a decree and thereby lost its appealability as a decree under Section 96. Act 104 of 1976 came into effect on Feb. 1, 1977 and therefore the order of the executing court which is dated Oct. 10, 1977 did hot possess the force of a decree to sustain the appeal before the lower appellate court. Counsel for the petitioner however contended that he had acquired a vested right of appeal as the execution petition was filed in Jan. 1977 when orders under Section 47 were appealable and that this right has not been destroyed by Act 104 of 1976. He also contended that despite the change in the definition of 'decree' with its impact on the appealability of orders, Section 97 (2) (a) of the Act preserves the right of appeal from an order under Section 47 that the appeal to the court below was therefore competent for that reason. The short point in the revision is whether this contention is right.

3. Now as pointed out in Subbiah Chou-dhury, (AIR 1957 SC 540 which bas been followed in several subsequent cases) the right of appeal is a substantive right and not a mere matter of procedure and the institution of a suit carries with it the implication that all rights of appeal then in force are preserved till the rest of the career of the suit. That decision also laid down that the right of appeal is a vested right and that it can be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. That principle applies here whether we reckon the commencement of the lis either with reference to the suit or the execution petition (irrespective of the question whether the execution petition is a continuation of the suit or is independent of it), for the execution petition was filed on Jan. 5, 1977, before the commencement of Act 104 of 1976.

4. What next falls to be considered it whether this right has been taken away either expressly or by necessary intendment by Act 104 of 1976, for if this has not happened the appeal was competent. Going back a little, the Joint Parliamentary Committee which considered the Bill that led to Act 104 of 1976 pointed out in its report that the definition of 'decree', which took in determinations of questions under Section 47 giving rise to appeals and second appeals, was mainly responsible for the delay in the execution of decrees. The Committee therefore recommended 'that the definition of the term 'decree' should be amended so that the determination of queslions open under Section 47 may not amount to a decree.' This recommendation was accepted and we have the amended definition of 'decree' with the words 'Section 47 or' omitted. In order to avoid delays in execution, the law Commission had suggested the insertion of a new provision as Section 99-A in the Code providing that no order made on an objection under Section 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. In the Bill Section 99-A was included, but the words 'in appeal' contained in the section as recommended by the Law Commission were dropped. Section 99-A as it stands now does net contain these words.

5. It is obvious that the definition of 'decree' in Section 2 (2) was amended to exclude appeals from determinations of questions under Section 47, as such appeals were found to dog execution proceedings and that in line with this object, the words 'in appeal' were deleted from what has become Section 99-A. From the manner in which Section 2 (2) was amended and the object with which it was done, it is fairly clear that the legislative intent was to affect the vested rights and not to retain them. The amendment was deliberately introduced to deprive, retrospectively as well as of course prospectively, the parties of the right of appeals.

6. Turning to the argument based on Section 97 of Act 104 of 1976 it deals with repeals and savings. Sub-section (2) and Clause (a) read as follows :

'(2) Notwithstanding that the provision 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 Sec, 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.'

7. This clause, it was contended, saves appeals from orders on execution petitions pendiug 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 light 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 unamehded Section 2 (2) had already come into existence -- it did not understandably use the expression 'pending' which would have limited it to one class and excluded the other.

8. I cannot agree that the other clauses in Section 97 (2), as Clauses (f) and (z) which use the words 'pending immediately before the commencement' would assist the petitioner's contention about Clause (a). A glance at these clauses and Clauses (j), (k), (m), (n) and (o) will show that 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 petitioner's contentions.

9. This conclusion is supported by Pratap Narain Agarwal v. Ram Narain Agarwal, AIR 1980 All 42 (FB), Tapan Chandra v. Dulal Chandra, AIR 1980 Gauhati 3 and Moban Das v. Kamla Devi, AIR 1978 Raj 127.

10. Counsel lastly submitted that in case I held that the appeal to the lower appellate court was not maintainable I might treat this revision as directed against the order of the execution court and deal with it on the merits. I find no good reason to accede to this request, considering the nature of the revision and the prayers therein and the long passage of time after the order of the execution court.

I dismiss the revision but without costs.


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