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 depriving a party of the right to file an appeal against an order passed under section 47.

Headnote:
CIVIL PROCEDURE CODE - SECTION 2(2) - AMENDMENT - EFFECT - APPEAL AGAINST ORDER UNDER SECTION 47 - MAINTAINABILITY - SAVING CLAUSE - INTERPRETATION.
Fact of the Case:

The petitioners filed an ejectment suit in 1967 and obtained a decree in 1968. The decree was reversed in appeal, and the petitioners 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 by April 1981. During the pendency of the special leave petition, the petitioners filed a darkhast for execution of the decree. The petitioners filed three applications in the execution proceedings, two of which were dismissed by the trial court. The petitioners 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 depriving a party of the right to file an appeal against an order passed under section 47. The court further held that section 97(2)(a) of the Amending Act only preserved a right of appeal against an order passed under section 47 in respect of appeals already pending on the date of the amending Act and appeals where orders on objections filed under section 47 had already been passed before the coming into force of the Amending Act.
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) of the Code 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 section 97(2)(a) of the Amending Act. The court held that the amendment to section 2(2) had the effect of depriving a party of the right to file an appeal against an order passed under section 47. The court further held that section 97(2)(a) only preserved a right of appeal against an order passed under section 47 in respect of appeals already pending on the date of the amending Act and appeals where orders on objections filed under section 47 had already been passed before the coming into force of the Amending Act.
Final Decision: The court held that the civil revision applications filed by the petitioners were maintainable and directed that they be heard on merits by a single judge of the High Court.

JUDGMENT - C.S. DHARAMADHIKARI, 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 bearing 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 trail 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 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 April, 1981. In the execution proceedings the plaintiffs filed three applications i.e. Exhibits 54, 55 and 57. Exhibits 55 and 57 came to be dismissed by the learned Civil Judge, (Junior Division) Chalisgoan by this order dated 18th September, 1981. Against this decision Civil Revision Application No. 1007 of 1981 is filed. Exhibit 54 was partly allowed by the trail Court i.e. the learned Civil Judge (Junior Division), Chalisgoan on 18th September, 1981. This application was filed for issuance of possession warrant qua certain articles. The prayer made therein was partly allowed and was partly rejected. The plaintiff had filed the Civil Revision 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 petition 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 (Note No. 1) in 1979 Mh.L.J. (Ibrahim Khan v Kasaipura Bunch Bungla Trust)1. On the other hand the petitioners plaintiffs relied upon another single Judge decision in (Civil Revision Application No. 104 of 1971 decided on 9th of April, 1979 by Parekh, J.)2. 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 contentions he has placed reliance upon the Full Bench decisions of the Allahabad High Courts in A.I.R. 1980. All. 42 (Pratap Naraian Aggarwal v. Ram Naraian Agarwal and others)3, decision of Rajasthan High Court in A.I.R, 1978 Raj. 127, (Mohan Das and others v Kamla Devi)4, decision of the Kerala High Court in A.I.R. 1978 Kerala 201, (Mohammad Khan v. State Bank of Travancore)5 and A.I.R. 1981 Kerala 18 (Kuriakose v. P.S. Narayanan Nair)6, decision of the High Court in A.I.R. 1980 Gauhati 3, (Tapan Chandra Deb Barma and others v. Dulal Chandra Deb Barma and others)7, decision of Punjab High Court in A.I.R. 1979 Punjab 262 (Ram Niwas v. Mithan Lal and others)8, decision of Andhra Pradesh High Court in A.I.R. 1980 A.P. 209. (Marriddi Janikamma and others v. Hanumantha Vajjual Paradesi Sarma a

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1983 Supreme(Bom) 86

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 depriving a party of the right to file an appeal against an order passed under section 47.

Cases Referred (1)