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Kavupadickal Devaswom Vs. Narayanan Potty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 23 of 1981-I
Judge
Reported inAIR1981Ker255
ActsCode of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(1) and 97(2); Code of Civil Procedure (CPC) , 1908 - Sections 96(4)
AppellantKavupadickal Devaswom
RespondentNarayanan Potty
Appellant Advocate O.V. Radhakrishnan and; K. Radhamani Amma, Advs.
Respondent Advocate M.K. Narayana Menon, Adv.
DispositionPetition allowed
Cases ReferredKuriakose v. Narayanan Nair
Excerpt:
- - radhakrishnan, the counsel for the revision petitioner, submitted that the dismissal of the appeal without stating why the appeal would not lie, is clearly illegal and the order is bound to be set aside for that reason alone......(4) of section 96 of the amended code would not apply, inasmuch as, the decree was given in a suit instituted in the year 1975, long before the amended code came into force. in this context he placed reliance on section 97 (2) (1) of the amending act of 1976 which reads as follows:'section 97 (2) (1). the provisions of section 96 of the principal act, as amended by section 33 of this act, shall not apply to or affect any appeal against the decree passed in any suit instituted before the commencement of the said section 33; and every such appeal shall be dealt with as if the said section 33 had not come into force;'sri narayana menon, the counsel for the respondent, on the other hand, submitted that the provisions of section 97 (2) (1) have to be read and understood in the light of.....
Judgment:
ORDER

K. Bhaskaran, J.

1. The revision petitioner's appeal, A. S. No. 44 of 1979, against the decree and judgment in Order 3. No. 91 of 1975, in which the revision petitioner was the defendant, having been dismissed stating 'No appeal will lie. Therefore the appeal is dismissed', this revision has been preferred by him. The plaintiff's suit for the recovery of a sum of Rs. 500 by way of arrears of salary with interest and costs was filed, registered and tried as an original suit.

2. Sri D. V. Radhakrishnan, the counsel for the revision petitioner, submitted that the dismissal of the appeal without stating why the appeal would not lie, is clearly illegal and the order is bound to be set aside for that reason alone. It is difficult to guess what really worked in the mind of the Judge when he dismissed the appeal stating that the appeal would not lie, inasmuch as the reason for holding that the appeal would not He has not been stated. The counsel for the respondent, Sri M. K. Narayana Menon, sought to justify the order stating that under Section 96(4) of he Code of Civil Procedure, as amended by Act 104 of 1976 (for short the amended Code) no appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.

3. To hold that under Sub-section (4) of Section 96 of the amended Code, no appeal shall lie, it should be shown that, (1) no question of law arises; (2) the appeal is from a decree in a suit of the nature cognizable by Courts of Small Causes; and (3) the amount or value of the subject-matter of the original suit does not exceed three thousand rupees. In this case it is true that the amount or value of the subject-matter of the original suit was less than Rs. 3,000, it being Rs. 500 or thereabout; it might even be that the decree was in a suit of the nature cognizable by Courts of Small Causes; nevertheless, an appeal might be competent if a question of law is involved.

4. That apart, Sri Radhakrishnan, the counsel for the petitioner, has an argument that in this case Sub-section (4) of Section 96 of the amended Code would not apply, inasmuch as, the decree was given in a suit instituted in the year 1975, long before the amended Code came into force. In this context he placed reliance on Section 97 (2) (1) of the amending Act of 1976 which reads as follows:

'Section 97 (2) (1). The provisions of Section 96 of the principal Act, as amended by Section 33 of this Act, shall not apply to or affect any appeal against the decree passed in any suit instituted before the commencement of the said Section 33; and every such appeal shall be dealt with as if the said Section 33 had not come into force;'

Sri Narayana Menon, the counsel for the respondent, on the other hand, submitted that the provisions of Section 97 (2) (1) have to be read and understood in the light of the provisions in Sub-section (3) of Section 97.

Under the provisions of Section 96 before its amendment by the Amending Act (No. 104 of 1976) the party aggrieved by a decree and judgment of the trial court had a right to file an appeal without the limitation contained in Sub-section (4) of Section 96 of the Act, introduced by the Amending Act. That would mean that but for the amendment the revision petitioner would have had a right to file an appeal. The question is whether this right has been taken away either by Section 97 (2) (1) or Section 97 (3) of the Amending Act. Section 97 (3) provides:

'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, or 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.'

Therefore if the revision petitioner's right to file appeal remains without being destroyed by the saving clause contained in Section 97 (2) (1), the provision regarding appeal applicable to his case would be Section 96 of the Code before it was amended by the Amending Act. We have, therefore, to see what exactly has been saved by Section 97 (2) (1), where it has been stated that the provisions of Section 96 of the principal Act, as amended by Section 33 of this Act, shall not apply to or affect any appeal against the decree passed in any suit instituted before the commencement of the said Section 33.

5. Sri Narayana Menon, the counsel for the respondent, would contend for the position that the expression 'instituted before the commencement of the said Section 33' occurring in Section 97 (2) (1) of the Amending Act (104 of 1976) is with reference to 'appeal', and, therefore, the appeal in this case admittedly having been filed after the coming into force of the amended Code, the appeal was not competent unless it fell within the exception provided in Sub-section (4) of Section 96 of the amended Code. On the other hand, Sri Radhakrishnan would argue that the expression referred to above has reference to the suit instituted, not to the appeal. On a careful reading of the provisions contained in Section 97 (2) (1) of the Amending Act, I find, it is neither possible nor reasonable to hold that the intention of the exclusion was to bring within the ambit of the amended Code appeals arising out of decrees passed in suits instituted before the commencement of Section 33 of the Amending Act; otherwise, the word 'instituted' would have found its place immediately after the word 'appeal', not after the word 'suit'. There could, therefore, be no doubt that the legislative intent was to retain the right of appeal, as before, if the appeal arises from a decree passed in a suit instituted before the commencement of Section 33 of the Amending Act (104 of 1976), A Division Bench of this court had occasion to consider the applicability of Section 97 (2) (m) of the Amending Act in Sainuddin v. Pokkunhi, (1977 Ker LT 516), The reasoning given there would also strengthen the view I have taken in this case.

6. On behalf of the respondent the decision of this court in Kuriakose v. Narayanan Nair (1980 Ker LT 948); (AIR 1981 Ker 18) has been brought to my notice to contend for the position that the right of appeal has been taken away by the amending provision contained in Section 97 (2) (1) of the Amending Act. On going through the decision, I find that that decision was rendered while construing the scope of the amendment of the definition of decree in Section 2 (2) of the Act which excluded appeals from determinations of questions under Section 47 in the context of Section 97 (2) (a) of the Amending Act of 1976, I do not think that the ruling given therein would be applicable to the facts of the present case wherein the right of appeal has to be tested in the light of the provisions contained in Section 97 (2) (1) of the said Act.

For the foregoing reasons the C.R.P. is allowed; the order of the appellate Court dismissing the appeal is set aside; and that court is directed to take back the appeal on its file and dispose it of according to law; there will be no order as to costs. The counsel for the respondent-plaintiff prayed for a direction to be issued to the appellate Court to have the matter heard at an early date. There will, therefore, be a direction to the appellate Court that the appeal would be disposed of as expeditiously as possible, at any rate, within six months from the date of the receipt of the records in that court. Send down the records forthwith.


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