Skip to content


T.K. Doraiswamy Vs. Premchand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1985)2MLJ345
AppellantT.K. Doraiswamy
RespondentPremchand and ors.
Excerpt:
- .....the petitioner herein cannot maintain the appeal in view of the amended provision in the code of civil procedure. as per the code of civil procedure (amendment) act, 1976 (act 104 of 1976), clause 97 (2) (a) reads as follows:the amendment made to clause (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.2. the definition section of the code of civil procedure which is section 2, as far as decree is concerned subsequent to the amendment, does not take in an order under section 47 as corning under the definition of a 'decree'. if that be so, the order passed under section 47 of the code of.....
Judgment:
ORDER

P.R. Gokulakrishnan, J.

1. The petitioner herein has come forward with this civil revision petition against the dismissal of C.M.A.No. 115 of 1977 holding that the petitioner herein cannot maintain the appeal in view of the amended provision in the Code of Civil Procedure. As per the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), Clause 97 (2) (a) reads as follows:

The amendment made to Clause (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.

2. The definition Section of the Code of Civil Procedure which is Section 2, as far as decree is concerned subsequent to the amendment, does not take in an order under Section 47 as corning under the definition of a 'decree'. If that be so, the order passed under Section 47 of the Code of Civil Procedure is not appealable and only a revision can be filed before the High Court. Correctly, the lower appellate Court has dismissed the appeal as not maintainable. The order made in R.E.A.No. 126 of 1976 is dated 4.3.1977. Act 104 of 1976 came into force on 1.2.1977 itself. If that be so, any order passed under Section 47, Civil Procedure Code, cannot give, either to the petitioner or to the respondent, of right of appeal. For all these reasons, I am of the view that the dismissal of the C.M.A. is correct in law. The civil revision petition is dismissed. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //