Orders passed under section 47 of the Code of Civil Procedure are not appealable after the amendment to section 2(2) by Act 104 of 1976.

Headnote:
{'KEYWORD': 'CIVIL PROCEDURE CODE', 'SUBJECT': 'APPEALABILITY OF ORDERS UNDER SECTION 47', 'ACT SECTION LIST': ['SECTION 2(2)', 'SECTION 47', 'SECTION 97(2)(A)', 'SECTION 97(3)', 'SECTION 99A']}
Fact of the Case:

The petitioners filed an ejectment suit in 1967, and the decree was passed in 1968. The decree was reversed in appeal, and the plaintiffs filed a writ petition in the High Court, which was allowed in 1981. The Supreme Court rejected a Special Leave Petition filed against the High Court's order in 1980 and granted time to the respondents to deliver possession of the premises. The plaintiffs filed three applications in the execution proceedings, two of which were dismissed by the trial court. The plaintiffs filed civil revision applications against the dismissal orders.
Finding of the Court:

The court held that the amendment to section 2(2) of the Code of Civil Procedure by Act 104 of 1976, which omitted the words 'section 47 or', had the effect of making orders passed under section 47 non-appealable. The court further held that section 97(2)(a) of the Amending Act preserved the right to appeal only against orders passed under section 47 before the amendment came into force.
Issues: Whether an appeal lies against an order passed under section 47 of the Code of Civil Procedure after the amendment to section 2(2) by Act 104 of 1976?
Ratio Decidendi: The court interpreted section 2(2) of the Code of Civil Procedure, as amended by Act 104 of 1976, and held that the omission of the words 'section 47 or' from the definition of 'decree' had the effect of making orders passed under section 47 non-appealable. The court also interpreted section 97(2)(a) of the Amending Act and held that it preserved the right to appeal only against orders passed under section 47 before the amendment came into force.
Final Decision: The court held that the civil revision applications were maintainable and directed that they be heard on merits by a single judge of the High Court.

JUDGMENT - Dharmadhikari J.-The present petitioners-plaintiffs filed ejectment suit in the year 1967 and the decree came to be passed in the said suit on 30th October 1968. In appeal to District Court the said decree was reversed and therefore the original plaintiffs filed writ petition before this Court bear-ing Special Civil Application No. 1991 of 1975 which came to be decided on 21st February 1981. The High Court reversed the order passed by the appellate Court and confirmed the judgment and decree passed by the trial Court. It then appears that thereafter a Special Leave Petition bearing No. 6041 of 1980 was filed before the Supreme Court which came to be rejected on 29th of October 1980. During the pendency of the Special Leave petition before the Supreme Court a Darkhast for execution of the decree was filed by the plaintiffs-decree holders on 10th of July 1980. The Supreme Court while rejecting the said Special Leave Petition on 29th of October 1980 granted time to respondents to deliver possession of the premises by 29th of April 1981. In the execution proceedings the plaintiffs filed three applica-tions i.e. Exhibits 54, 55 and 57. Exhibits 55 and 57 came to be dismissed by the learned Civil Judge, Junior Division, Chalisgaon, by his order dated 18th of September 1981. Against this decision Civil Rev. Application No. 1007 of 1981 is filed. -Exhibit 54 was partly allowed by the trial Court i.e. the learned Civil Judge, Junior Division, Chalisgaon on 18th of September 1981. This application was filed for issuance of possession warrant qua certain articles. The prayer made therein was partly allowed and partly rejected. The plaintiff has filed the Civil Rev. Application No. 1008 of 1981 against the partial rejection of his application Exhibit 54. When both these matters were placed before the learned single Judge of this Court (Masodkar J.) a contention was raised before him that these revision peti-tions are not maintainable and the plaintiffs should have filed appeals against the impugned orders. In support of this contention reliance was placed upon the decision of the single Judge of this Court i.e. Tulpule J. which is reported in Notes of cases in (Ibrahim Khan v. Kassipura Bunch Bung/a Trust)1. On the other hand the petitioners-plaintiffs relied upon another single Judge's decision in Civil Rev. Application No. 104 of 1971 decided on 9th April 1980 by Parekh J. Since Masodkar J. found that there is apparent conflict in these two decisions as well as the view taken by different High Courts with regard to the tenability of the appeal, he referred the matter to the Division Bench. Therefore these two Civil Revision Applications are placed before us, for deciding the said question.

2. Shri Jhaveri, the learned counsel appearing for the petitioners-plaintiffs contended that in view of the amendment to section 2 (2) of the Code of Civil Procedure by Amending Act 104 of 1976 which came into force on 1st of February 1977 an appeal against the impugned order is not maintainable and therefore the plaintiffs have rightly filed these civil revision applications. In support of this contention he has placed relianceupon the Full Bench decision of the Allahabad High Court in (Pratap Narain Agarwal v. Ram Narain Agarwal and others)'1, decision of Rajasthan High Court in (Mohan Das and others v. Kamla Devi)3, decisions of the Kerala High Court in (Mohammad Khan v. State Bank of Travancore)4 and Kuriakose v.P. K. Narayanan Nair5 decision of Gauhati High Court in (Tapan Chandra Deb Barma and others v. Dulal Chandra Deb Banna and others)6, decision of Punjab High Court in (Ram Niwas v. Mithan Lal and others)7', decision of Andhra Pradesh High Court in (Marriddi Janikamma and others v. Hanit-mantha Vajjual Paradesi Sarma and others)8, decision of the Orissa High Court in (Mst. Sarabai Agarwal/a and others v. Hardhan Mahopatra and another)9 and a decision of Gujarat High Court in (Hasumatiben v. Ambalal Krishnalal Parikh)10 as well as d

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Judicial Analysis