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High Court Of Madhya Pradesh
G. P. Singh, C. J. and Faizanuddin, J.
SHESH KUMAR PRADHAN SHESHDEO - Appellant
Versus
KESHBO, NARAYAN AGHARIYA - Respondents
Civil Revn. 253 Of 1976
Decided On : 01/28/1980
It is well settled that the enumeration of specific matters "without prejudice to the generality of" a particular provision does not restrict the general application of that provision to the matters enumerated because the words "without prejudice" have the effect of preserving the full effect of the general provision and also because the rule of ejusdem generis has no inverse application.
(Para 6)
(2) Civil P.C., 1908 - O. 21, R. 103-right to file civil suit-accrued before the amendment-civil suit not barred by the amendment.
(3) Civil Procedure (Amendment) Act, 1976 - S. 97 - right to file civil suit under O. 21, R. 103-accrltsed before amendment-not taken away by the amendment-General Clauses Act, 1897-S. 6.
If the right to institute a suit under the old rule 103 had arisen before the commencement of the amending Act it would be preserved u/s 6 of the General Clauses Act read with subsection (2) of S. 97 even though it is not covered by clause (q) of that sub-section. When the application made by the non-applicants Nos. 1 to 5 under the old R.100 was rejected under the old R.101, a right accrued to them to challenge the order rejecting their application under the old Rule 103. This right and the remedy for giving effect to this right by filing a suit under the old Rule 103 continued to be operative by force of clauses (c) and (e) of section 6 of the General Clauses Act read with sub-section (2) of section 97 of the amending Act.
(Para 6)
(4) Appeal-right of appeal-nature of -when arises-affect of enragement and curtailment of the right.
The general principle applicable to the right of appeal against an order is that it arises in accordance with the law in force at the time of institution of the legal proceeding in which the order is passed. However, if the fight is enlarged by a change in law before the passing of the order the enlarged right can also be availed of. But if the change in Jaw enlarging the right of appeal takes place after the passing of the order, the enlarged right cannot be availed of unless the change in law is clearly retrospective and in terms applies to orders previously made.
(Para 6)
( 1 ) THE facts giving rise to this revision are that the applicant obtained a money decree in Civil Suit No. 55-B of 1968 against the non-applicants Nos. 6 and 7 and, in execution of the said decree, purchased in the auction sale Survey Nos. 577 and 145. The non-applicants Nos. 1 to 5 made an application under Order 21, Rule 100, Civil P. C. , that they were prior purchasers of the said lands for consideration and that they were entitled to be placed in possession. The application was dismissed by the Executing Court on 25th Jan. 1977 before the commencement of the Civil P. C. (Amendment) Act, 1976 which came into force on 1st Feb. 1977. The non-applicants Nos. 1 to 5 then brought a suit under order 21, Rule 103 of the Code as it stood before the amendment for establishing their right to possession. This suit was filed on 10th March 1977. The applicant raised an objection to the maintainability of the suit in the light of the amendments introduced in the Code by the amending Act 1976. The objection was tried as a preliminary issue and was decided against the applicant on 17th Nov. 1978 by the Civil Judge, Class II, Sarangarh. It is against this order that this revision was filed. The revision came up for hearing before a learned single Judge (J. S. Verma, J.) who, having regard to the general importance of the question involved, directed that the revision be referred to a larger Bench. This is how the revision has come up before us.
( 2 ) TO appreciate the question raised in this revision, it is first necessary to refer to the relevant provisions of the Code as it stood before its amendment by the amending Act, 1976. The material provisions are Rules 100 to 103 of Order 21, which read as follows:
"100. Dispossession by decree-holder or purchaser, -- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
101. Bona fide claimant to be restored to possession.--Where the court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.
102. Rules not applicable to transferee lite pendente.--Nothing in Rule 99 to 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
103. Orders conclusive subject to regular suit.-- Any party not being a judgment-debtor against whom an order is made under Rule 98, rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property but, subject to the result of such suit (if any), the order shall be conclusive. " The relevant new rules after the amendment of the Code are Rule 99 to 103 of Order 21 and they are as under:
"99. Dispossession by decree-holder or purchaser.-- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property, or where such property has been sold in execution of a decree by the purchaser thereof, he may make an application to the court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 100. Order to be passed upon application complaining of dispossession.--Upon the determination of the questio
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