Back
High Court Of Madhya Pradesh
G. P. Singh, C. J. and U. N. Bhachawat, J.
CHULURAM - Appellant
Versus
BHAGATRAM - Respondents
Misc. Second Appeal 55 Of 1978
Decided On : 08/02/1979
Amending Act No. 104 of 1976 amended the definition of decree with effect from the 1st February 1977. The result was that an order determining a question under section 47 was no more appealable. But section 97 of the Amending Act saved the pending appeals. Where objections in execution of a decree were made prior to the enforcement of the amendment in section 2(2), and the order was passed after the amendment came into force, question arose whether the order is applicable as a decree.
Held: The amendment brought about by section 3 in section 2(2) of the Code by which the determination of any question under section 47 does not now amount to a decree cannot be construed to take away a vested right of appeal in pending executions. [Para 6]
The appellant had a subsisting right of appeal against the order of the executing Court and could file an appeal against order dismissing his execution application on the objections made by the judgment debtor. [Para 9]
(2) Appeal-what is an appeal-nature of the right-right when accrues - amendment in right of appeal-two categories of changes.
An appeal is the right of entering a superior court and invoking its aid and interposition to redress an error of the Court below and. though procedure does surround an appeal, the central idea is a right. The right of appeal is naturally exercised after the Decree or Order against which appeal is preferred is passed. but it is now well settled that it accrues and vests in the suitor at the time of institution of the proceeding in which the Decree or Order is passed and there is a very strong presumption that this vested right of appeal in pending proceedings is not impaired by a change in law relating to appeals. [Para 5]
The change by amendment in right of appeal may be of two categories. One is where the new law confers a new right of appeal or enlarges an existing right of appeal. In such cases the law as it is on the date of the order will apply to appeals. But this principle has no application in the second category of amendment where the law takes away or curtails an existing right of appeal.
A right of appeal vests at the institution of a proceeding according to the law then in force and, therefore, abolition of right of appeal or its curtailment by a new law cannot be applied to orders made in pending proceedings though made after the- change in law as that would deprive a person of his vested right. [Para 7]
( 1 ) THE appellant obtained a money decree against the respondent on 30th september which the respondent filed an objection claiming protection under the Madhya Pradesh Gramin Rin Vimukti Tatha Rin Sthagun Adhiniyam, 1975. This objection was filed on 25th November 1976. The objection was upheld by the executing Court by order dated 8th April 1977 and the execution application was dismissed. The appellant filed an appeal against this order before the additional District Judge, Bilaspur, who by order dated 21st January 1978, dismissed it on the ground that it was not maintainable under the Code of Civil procedure as amended by Act 104 of 1976. The appellant then filed this second appeal and relied upon a single Bench decision in Ratanlal v. Hanuman Singh S. A. No. 54 of 1978, D/- 6-4-1978 in support of the maintainability of his appeal against the order dismissing his application for execution. The appeal first came up for hearing before a learned single Judge, who was inclined to take a view different from that taken in Ratanlal's case and he, therefore, referred the appeal to a larger Bench. This is how the appeal has come up for hearing before us.
( 2 ) THE Amending Act 104 of 1976, which came into force on 1st February 1977, drastically amended the Code of Civil Procedure. Section 3 of this Act amended section 2 (2) of the Code of Civil Procedure and omitted the words and figure "section 47 or" from it. The result of this omission is that the determination of any question within Section 47 of the Code does not now amount to a decree. The object behind this amendment, as stated in the objects and reasons, is as follows:
"the Committee note that according to the definition of the expression 'decree', given in the Code, the determination of any question under Section 47 amounts to a decree and, as such, an appeal and second appeal would lie against such determination. The committee are of the view that this provision of the Code is mainly responsible for the delay in the execution of the decrees. The committee, therefore, feel that the definition of the term 'decree should be amended so that the determination of question under section 47 may not amount to a decree. "
( 3 ) THE next important section for our purpose is Section 97 of the Amending Act which in so far as relevant, reads as follows;
" (1) Any amendment made, or any provision inserted in the principal act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this act, stand repealed.
(2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of of the General Clauses Act, 1897.-- (a) the amendment made to clause (2) of Section 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. "
( 4 ) THE argument of the learned counsel for the appellant is that the right of appeal against the determination under Section 47 of the respondent's objection accrued to the appellant on the date the respondent filed his objection to the execution application in the executing Court and that there is a presumption that that right was not affected by the Amending Act-Learned counsel relies upon Section 6 of the General Clauses Act, 1897. He also contends that the provisions of Section 97 (2) (a) of the Amending Act expressly preserve the right of appeal against the determination of a question as is referred to in Section 47 and every such appeal has to be dealt with as if section 3 of the Amending Act had not come into force.
( 5 ) AN appeal is the right of entering Superior Court and invoking its aid and
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
