( 1 ) THIS Order will also govern the disposal of Misc. petitions Nos. 442/89 (Moolchand and another v. Ramesh Babu Gupta and others) and 443/89 (Mansharam Lahariya and 3 others v. Ramesh Babu Gupta and two others ).

( 2 ) IN all these three petitions under Art. 227 of the Constitution of India, the sole question for determination is as to whether the amendment brought about in S. 2 (9) of the Code of Civil Procedure 1908 (old Code), as amended by the Civil Procedure Code (amendment) Act (Act No. 104 of 1976) by which determination of any question u/s. 47 does not now amount to a decree, can be construed to take away a right of appeal in pending execution cases. Two of the decisions of this Court in case of Chuluram v. Bhagatram, AIR 1980 Madh Pra 16 and Sitaram v. Chaturo, 1981 Jab LJ 171 have taken the view that such a right of appeal, being a vested right, could not be taken away and in orders passed u/s 47 of the Code of Civil Procedure which were levied in execution proceedings before the coming into force of the Amending Act could not be taken away and, therefore, the orders would be appealable.

( 3 ) IT is noteworthy to be mentioned that the Amending Act came into force on the 1st February 1977. The correctness of the said two decisions having been doubted, the question has been referred to a Full Bench. Hence this matter before us.

( 4 ) THAT there is a divergence of opinions for whatever worth it may be cannot be doubted because series of decisions of other High Courts have taken a contrary view and, therefore, the matter needs to be examined in the first instance as a matter of first impression on a construction of the statutory provisions and then the case law relied upon by counsel for either party may be referred to.

( 5 ) SHORN of all details, the relevant fact for determination of the question at hand is that a decree having been passed prior to or sometime in 1979, the execution of decree was levied by the respondents decree-holders on 4-1-1979. As has already been stated above, the Amending Act came into force on 1-2-1977. Therefore, the execution proceedings in the present case were initiated much later than the coming into force of that Act. The question is as to whether any order passed in execution proceedings in question would still be appealable after the Amending Act came into force.

( 6 ) LET us now look to some of the relevant provisions of the Amending Act. Section 3 of the Amending Act drastically amended Section 2 (2) of the old Code and omitted the words and figures "section 47 or" from it. The result of this omission is that determination of any question within Section 47 of the Code does not now amount to a decree. The relevant portions of Section 97 read thus"97 (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 provision of section 6 of the General Clauses Act 1897 (10 of 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; (b) the provisions of Section 100 of the Principal Act, as substituted by Section 37 of this Act shall not apply to or affect any appeal from an appellate decree or order which had been admitted before the commencement of the said Section 37 after hearing under rule 11, Order XLI and every such admitted appeal shall be dealt with as if the said Section 37 had not come into force. "section 99a runs as f