1993 Supreme(AP) 93

Andhra Pradesh High Court
Judges : A.LAKSHMANA RAO, P.L.N.SHARMA, P.VENKATRAMA REDDY
Pallamreddy Masthan Reddy - Appellant
Versus
Nellore Finance Corporation - Respondent
Decided On : 02-26-93

The change brought about by the Amendment Act to Rule 58, is essentially a procedural change having a bearing on the ambit and manner of determination of claim petition.

Headnote:

CIVIL PROCEDURE CODE - AMENDMENT ACT, 1976 - SECTION 97(2) AND (3) - INTERPRETATION - PENDING CLAIM PETITIONS - DISPOSAL - PROCEDURE - RIGHT TO FILE SUIT UNDER REPEALED RULE 63 - WHETHER SURVIVES - SECTION 6 OF THE GENERAL CLAUSES ACT - APPLICABILITY.

Fact of the Case:

The appellant is the claim-petitioner. In execution of the money decree obtained in O. S. 127/71 on the file of the Sub-Court, Nellore, the 1st respondent herein-the decree-holder, attached certain immovable properties on 27-10-1976 as if they belonged to the 2nd respondent-judgment-debtor. The appellant herein and another person by name Sesha Reddy filed a claim petition in E. A. 29/77 in the District Court, Nellore, to raise the attachment. The said claim petition was partly allowed and a part of the property was released from attachment, by an order dated 2-4-1977. Questioning this order in so far as it was against him, the appellant filed a suit -- O. S. No. 571/77, purportedly under the repealed Rule 63 of Order XXI. By judgment dated 14-8-1980, the Principal District Munsif, Nellore dismissed the suit as not maintainable. He took the view that the claim order having been passed after the C. P. C. (Amendment) Act came into force, the amended provisions would govern and a suit does not lie. For the conclusion he reached, the learned District Munsif relied upon the judgment of this Court rendered by Jeevan Reddy, J. in B. N. Murthy v. Sriukakulam Co-op. Central Bank Ltd, (1978)2 APLJ 238. On an appeal preferred to the District Court, the learned District Judge upheld the judgment of the lower Court. The appellate Court felt that thejudgment of Narsing Rao, J. in N. Tati Reddi v. Syed Meera Hussami, AIR 1979 AP 70 relied upon by the appellant did not have a direct bearing on the question and therefore it preferred to follow the judgment of Jeevan Reddy, J. in B. N. Murthy case (supra ). The appellate Court observed that the remedy of filing a suit under Order 21, Rule 63 has not been, saved and therefore the only remedy available for the plaintiff was to prefer an appeal against the claim order. Thereafter, the second appeal was filed by the unsucessful appellant. The substantial question of law framed for consideration in the second appeal is "whether the suit is not maintainable to set aside a claim order passed after the commencement of the amended Rule 58 of Order XXI in respect of an attachment subsisting on the date of the commencement of the amendment rule. "the ground raised in the second appeal is that the date of attachment as well as the claim petition being well before the effective date of the Amendment Act, the old provisions alone would govern.

Finding of the Court:

The Court held that the pending claim petitions ought to be disposed of in accordance with new Rule 58 and an aggrieved party cannot maintain a suit against that order. In the ultimate analysis, what follows is this: (1) Old suits, that is to say, the suits instituted under the repealed Rule 63 before the commencement of the Amendment Act continue to be governed by the old provisions unaffected by the amendments, by virtue of sub-clause (ii) of Clause (q) of Section 97 (2 ). (2) The claim petitions disposed of before the Amendment Act but in respect of which suits were not filed by the date of Amendment Act, should also be treated on the same footing as Category (1) above. On the disposal of the claim petition which wo. uld have been disposed of in accordance with the old procedure, the right to file a suit undoubtedly accrued to the party and he can therefore avail of that remedy irrespective of the amendment. The claim petition dealt with and disposed of before the Amendment Act in accordance with the old procedure should logically and necessarily be subject to the result of suit under the repealed Rule 63. Such a suit could be filed even after the Amendment Act provided the period of limitation had not expired. (3) Pending claim petitions, that is to say, those filed before the Amendment Act and pending on the date of commencement of the Amendment Act wilt have to be disposed of by the new procedure laid down by amended Rules 58 and 59, irrespective of prior attachment. In other words, instead of a summary investigation into possession, there should be a full fledged enquiry into the right, title and interest as well. The order passed therein shall be treated as a decree and subject to appeal. The same Rule will apply to the claim petitions filed after the Amendment Act.

Issues: Whether a claim petition filed under Order XXI, Rule 58 C. P. C. and pending on the date of commencement of the C. P. C. (Amendment) Act, 1976 has to be dealt with in accordance with the pre-amended Rules 58 to 63 of Order XXI, or in accordance with the amended Rules 58 and 59, and whether a suit under the repealed Rule 63 lies against the order passed therein, are the questions that broadly fall for consideration in this Second Appeal and the C. R. P.

Ratio Decidendi: The change brought about by the Amendment Act to Rule 58, is essentially a procedural change having a bearing on the ambit and manner of determination of claim petition. If that be the proper perspective of the change, there could be no legal objection in applying the amended provisions to the pending claim petitions, unless of-course there is anything in the Repeal and Savings provision which excludes the applicability of the new provisions. It is exiomatic that there is no vested right to have recourse to a particular procedure for enforcing a right. The following observations of a Full Bench of this Court in Allied Exports and Imports v. State of A. P. , AIR 1971 AP 218 at Page 222 : (1971 Tax LR 750) are quite apposite : "in cases where rights substative or re medial are touched, the presumption is that the legislature does not intend to take away or affect such rights retrospectively unless, as stated earlier the intention of the Legislature is made explicit in that behalf. However in regard to the procedural law, the general presumption is that the alteration in the procedure is retrospective in the sense that not only applies to the pending cases but also applies to causes of action which had arisen before the change in the procedure was effected. But there is an exception to this general rule. In cases where the alteration in procedure would have the effect of destroying the right of action, the procedural law also is presumed to be prospective and not retro spective. "

Final Decision: C. R. P. is allowed. The claim petition will have to be disposed of in accordance with the amended Rule 58 of Order XXIM CPC. The parties shall be given an opportunity to amend the pleadings if necessary. There will be no order as to costs. In the view we have taken that against an order passed in the Claim Petition disposed of after 1-2-1977, a suit under Order XXI, Rule 63 is not maintainable, the second appeal is liable to be dismissed. Accordingly, we dismiss the second appeal. In the circumstances of the case, there will be no order as to costs.