KUDAL, J.—This special appeal under section 18 of the Rajasthan High Court Ordinance, 1949, is directed against the judgment of the learned Single Judge dated May 9, 1977.

2. Learned counsel for the respondent decree-holder has raised preliminary objection that the appeal is not maintainable in view of the provisions of the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as the Amending Act), which came into force from February 1, 1977. It was contended that by the Amending Act the definition of "decree" in Section 2 (2) of the Code of Civil Procedure has been amended and the words "Section 47 or" have been deleted as a result of which any order passed under Section 47 of the Code of Civil Procedure is, therefore, not appealable. It was further contended that the intention of the Amending Act is to shorten the litigation and not to allow it to be prolonged unnecessarily in execution matters. It was further contended that in view of the recent amendment, order passed under Section 47, CPC now does not amount to a decree and, therefore, is not appealable as such. It was further contended that though the right of appeal being a substantive right, and the institution of a suit carries with it the implication that all successive appeals available under the law than in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are however two exceptions to this rule : (1) when by subsequent enactment such right is taken away expressly or impliedly with retrospectively effect; and (2) when the Court to which the appeal lay at the commencement of the suit stands abolished. The contention of the learned counsel for the respondent is that the present amendments in the Code of Civil Procedure clearly exhibit the necessary intendment that the appeals, which were available at the time when the lis commenced, are no longer available to the parties. It was also contended that Section 18 of the Rajasthan High Court Ordinance, 1949, cannot provide a right of appeal in the instant case against the judgment of learned Single Judge because such a right of appeal would be inconsistent with the recent amendments in the Code of Civil Procedure and would create anomalous situation. It was also contended that only those appeals are saved under Section 97 (2) (a) of the Amending Act which had been instituted before February 1, 1977. The present appeal was instituted much after the Amending Act had come into force.

3. Learned counsel for the appellants contended that the present appeal is maintainable as at the time when the lis commenced, the law provided such an appeal. By a subsequent enactment, the substantive right of such appeal cannot be taken away. It was also contended that such an appeal is neither expressly barred, nor such necessary intendment can be inferred which bars the maintainability of such an appeal.

4. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. The relevant facts which are necessary for the disposal of this preliminary point are that the plaintiff-respondent filed a suit for pre-emption in respect of the suit property in the year 1970 which who finally decreed by the High Court on September 1, 1975. The plaintiff-respondent filed an execution petition on November 12, 1976. The appellants-judgment-debtors filed objections under Section 47 of the Code of Civil Procedure. These objections were dismissed by the learned Additional District Judge No. 1, Jaipur on September 10, 1976. Thereafter, the judgment-debtor preferred an appeal on October 4, 1976 before this Court, which was dismissed on May 9, 1977. On May 17, 1977, the present special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, was filed.

5. The Code of Civil Procedure (Amendment) Act, 1976, consoin to force from February 1,1977, Sub-clause (1) and sub-clause (2) (a) of Section 97 of the Amending Act rea

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