Rameshkumar Swaroopchand Sancheti And Another v. Rameshwar Vallabhram Bhatwal And Another

Dharmadhikari, 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 trial 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 of 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 of 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, Chalisgaon, by his order dated 18th of September, 1981. Against this decision Civil Rev. Application No. 1007 of 1981 is filed. Exhibit 54 was partly allowed by the trial Court i.e the learned Civil Judge, Junior Division, Chalisgaon on 18th of September, 1981. This application was filed for issuance of possession warrant qua certain articles. The prayer made therein was partly allowed and partly rejected. The plaintiff has filed the Civil Rev. 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 petitions 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 in Ibrahim Khan v. Kassipura Bunch Bungla Trust . 1979 Mh. LJ Note 1.. On the other hand the petitioners-plaintiffs relied upon another single Judge's decision in Civil Rev. Application No. 104 of 1971 decided on 9th April, 1980 by Parekh J. 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 contention he has placed reliance upon the Full Bench decision of the Allahabad High Court in Pratap Narain Agarwal v. Ram Narain Agarwal . AIR 1980 All. 42., decision of Rajasthan High Court in Mohan Das v. Kamla Devi . AIR 1978 Raj. 127., decisions of the Kerala High Court in Mohammad Khan v. State Bank of Travancore . AIR 1978 Ker 201. and Kuriakose v. P.K Narayanan Nair5 decision of Gauhati High Court in Tapan Chandra Deb Barma v. Dulal Chandra Deb Barma . AIR 1980 Gauhati 3., decision of Punjab High Court in Ram Niwas v. Mithan Lal . AIR 1979 Punj. 262., decision of Andhra Pradesh High Court in Marriddi Janikamma v. Hanumantha Vajjual Paradesi Sarma . AIR 1980 AP 209., decision of the Orissa High Court in Mst. Sarabai Agaralla v. Hardhan Mahopatra . AIR 1982 Orissa 9. and a decision of Gujarat High Court in Hasumatiben v. Ambalal Krishnalal Parikh . AIR 1982 Guj. 324. as well as decision of Parekh J. referred to above.

3. On the other hand it is contended by Shri Abhyankar that a right to file an appeal has been recognised by the judicial decisions as right which vests in a suit or at the time of institution of the original proceedings and any change in law which adversely touches this vested right is presumed not to be retrospective. Such a vested right is saved by section 97(2)(a) of the Amending Act itself. According to Shri Abhyankar the provisions of section 97(3) of the Amending Act are subject to the provisions of section 97(2)(a). Various clauses of section 97 clearly indicate that the rights which are vested in the litigant are wholly saved and the Amending Act has no retrospective effect. In support of this contention Shri Abhyankar has placed reliance upon the decision of Madhya Pradesh High Court in Chuluram v. Bhagatram . AIR 1980 MP 16., decision of the Delhi High Court in Syndicate Bank New Delhi v. Rallies India Ltd. New Delhi . AIR 1979 Delhi 40., decision of Orissa High Court in Nanda Kishore Moharapa v. Mahabir Prasad Lath . AIR 1978 Orissa 129., decision of the Supreme Court in Garikapati Veeraya v. N. Subiah Choudhary . AIR 1957 SC 540. and the decision of Tulpule J. referred to hereinabove.

4. The ‘terms’ decree is defined by Section 2(2) of the Code of Civil Procedure. The definition as it stood before amendment of 1976 read as under:—

“2 (2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include—

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

explanation. ………………………………”

In our opinion there is much substance in the contention raised by Shri Jhaveri, the learned counsel for petitioners-plaintiffs.

By the Amending Act No. 104 of 1976 the words ‘section 47 or’ are omitted. The omission of words ‘section 47 or’ from Section 2(2) of the Code is not accidental but is deliberate and intentional. From the report of the joint Committee it is clear that the committee took note of the fact, that since the definition of decree included determination of any question under section 47, an appeal and second appeal would lie against such a determination. Therefore in its report the Committee expressed the view that this provision of the Code was mainly responsible for the delay in execution of the decrees. This was the reason why Committee recommended that these words should be omitted, so that the determination of any question under section 47 may not amount to a decree. Even under unamended definition a status of decree was given to such determination, by creating a deeming fiction. Therefore as a result of omission of words ‘section 47 or’ and section 97(3) of the Amending act 104 of 1976, the said status is no more available to the order passed under section 47 of the code, hence no appeal is maintainable against such a determination. Any other construction will defeat the very object and intention of the Legislature. Then comes section 97 of Act No. 104 of 1976 which is repealing and saving clauses, and on which reliance is placed by Shri Abhyankar. The relevant provisions of the said sections read as under:

“97(1) Repeal and savings.— (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.

97(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 the General Clauses Act, 1897 (10 of 1897).

97(2)(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.

Then comes section 97(3) which reads as under:

“97(3) Save as otherwise provided in sub-section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, cause of action, in purusance of which such suit, proceeding appeal or application is instituted or filed, had been acquired or had accrued before such commencement”.

5. It appears that Tulpule J. took a view that since the right to file an appeal is substantive right which vest in a litigant on the date of the filing of the suit itself, the said right is wholly saved by section 97(2)(a) and is not taken away by section 97(3). In support of his finding Tulpule J. placed reliance upon the decision of Delhi High Court in Syndicate Bank New Delhi v. Rallies India Ltd., New Delhi, and did not follow the Allahabad decision reported in Pratap Narain Agarwal v. Ram Narain Agarwal. On the other hand Parekh J. followed the view taken by the Allahabad High Court in Pratap Narain's case and held that the view taken by Patna High Court in Parshava Properties Ltd. v. A.K Bose . AIR 1979 Pat. 308. is not the correct view of the law. We have gone through the various decisions cited before us, at the Bar and we respectfully agree with the view taken by the Full Bench of the Allahabad High Court in Pratap Narain's case wherein it was held by the Full Bench that section 97(2)(a) preserves a right of appeal against the order passed under section 47 of the code in respect of appeals already pending on the date of enforcement of the Amending Act as well as in respect of the appeals where orders on objections tiled under section 47 had already been passed before the enforcement of the Civil Laws (Amending Act) 1976. This is what the Full Bench of the Allahabad High Court observed in paras 21 and 22, of the Judgment:

“21. From the manner in which the amendment was made in section 2(2) of the Civil Procedure Code, the irresistible conclusion is that the intention of the Legislature was to affect the vested right retrospectively. This intention has been manifested by express words. Even otherwise, the necessary implication of the amendment appears to be that the same was made to be a retrospective operation. It could not be and was not argued that despite the amendment made in section 2(2) an order passed on an objection filed under section 47 after the amendment would amount to a decree. The question only was with respect to the pending applications on the date of enforcement of the amendment. The fact that after the amendment a decision on an objection under section 47 would not amount to a decree, establishes that the decision given on objections can no longer be treated as decrees.

22. We have already noted the report of the Joint Committee which gave the reasons for bringing about the amendment in the definition of the term ‘decree’. The report of the Joint Committee is an aid to the construction and, as such, can be looked into for ascertaining or determining the intention of the Legislature. The report leaves no room for doubt that the intendment behind the amendment was to deprive a party of his right to file an appeal which accrued against an order passed under section 47. This amendment negatives any appeal which lay previously. For our view, we find support from a decision reported in Mohan Das v. Smt. Kamla Devi.”

As we are in respectful agreement with the view taken by the Full Bench of the Allahabad High Court it is not necessary to make detailed reference to the several decisions cited before us. In our opinion the intention of the Legislature is quite clear from the omission of the words “section 47 or” from Section 2(2) of the Code. It is well settled that if two interpretations of a provision are possible then one which is in tune with the intention of the Legislature should be preferred. The intention of the Legislature is further clear from section 99-A which reads as under:

“99-A. Without prejudice to the generality of the provision of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case”.

This provision became necessary because of the amendment to section 2(2). If the provisions of section 2(2) as amended, and sections 97(2), 97(3) and 99-a are read together, and harmoneously then it is quite clear to us that the amendment is retrospective in operation. It cannot be disputed that Legislature has a plenary power of legislation within the field of legislation and subject to certain constitutional restrictions it can legislate prospectively as well as retrospectively. An enactment can be given retrospective effect either expressly or by necessary implication. Section 2(2) of the Code was obviously amended to affect the vested right of appeal retrospectively. This intention is manifest from the deliberate and express omission of words “section 47 or” from Section 2(2) of the Code. Even otherwise such a conclusion is inevitable by necessary implication. Viewed it from any angle it appears to us that section 2(2) was amended to give it a retrospective effect.

6. Similar view is taken by Chandurkar J. in Kisan Ranchhoddas v. Lalaji Dharamdas . 1982 Mah. LJ 216., while dealing with the effect of the provisions in Order 21, rules 97 to 103, introduced by the amendment to Code of Civil Procedure. The relevant observations in paras 10 and 11 read as under:

“10. Now it is difficult to see how the learned counsel for the petitioner can place reliance on reference to section 8 of the General Clauses Act made in section 97 of the Code of Civil Procedure (Amendment) Act, 1976. Section 97(1) is the repealing provision and the saving provision is in sub-section (2). Under section 97(1) of the Amending Act any amendment made by the State Legislature or by the High Court in the Code of Civil Procedure before the commencement of the Amending Act were to stand repealed in so far as the amendments were inconsistent with the provisions of the Amending Act. Sub-section (2) provides that certain provisions as amended will not affect certain pending matters. …………………

“Now the effect of sub-section (2), in so far as the provisions of Order 21 referred to in clause (q) are concerned will be that apart from the effect of the general provisions in section 6 of the General Clauses Act, the Parliament has expressly provided inter alia that any suit instituted before the commencement of the Amending Act under rule 63 or Order 21 to establish right to the attached property or under rule 103 to establish possession will not be affected by the provisions of the amended Code and they shall be determined as if the provisions mentioned in clause (q) have not come into force. It is obvious that when reference was made to section 6 of the General Clauses Act, the purpose was merely to indicate that the specific provision in section 97(2) was being made in addition to the general provision of section 6, General Clauses Act in order to provide that the pending suits under Order 21, rule 103 would not be affected by the amended provisions in rules 97 to 103 of Order 21”.

11. The learned counsel for the petitioners argued that the original proceeding under section 41 of the Presidency Small Cause Courts Act of which the obstructionist proceedings arose commenced prior to the coming into force of the Amending Act and, therefore the remedy by way of a suit provided by the earlier provision in rule 103 must be treated as saved by virtue of clause (e) of section 6 of the General Clauses Act. This argument however must be rejected in view of the express provisions of sub-section (3) of section 97 of the Amending Act, which is a complete answer to the contention that the rights of the petitioners are not regulated by the new provisions in rule 103………………………… …………

It is clear from the words of section 97(3) that except for the matters which are mentioned in clauses (a) to (zb) of section 97(2), all other matters, whether pending or instituted, or filed after the commencement of the Amending Act, would be regulated by the amended provisions. Therefore, whether we treat an obstructionist proceeding as a continuation of the original application for eviction or whether we treat that proceeding as newly instituted after the commencement of the Amending Act, the provisions of sub-section (3) of section 97 of the Amending Act leave no room for doubt that the amended provisions in Order 21, to rule 98 to rule 103 will be attracted in the instant case. Once the provisions of section 97(3) are attracted it is obvious that the only remedy was by way of an appeal against the order of the Court in the obstructionist proceedings and under rule 103 if no such appeal is filed that order will become final and an independent suit to establish the right, which has been negatived under Order 21, rule 98, will not be maintainable. There is thus no error in the view taken by the Appeal Bench of the Small Cause Court, that the suit filed by the petitioners is not maintainable”.

7. The view taken by the Full Bench of the Allahabad High Court is followed by Gauhati High Court in Tapan Chandra Deb Barma v. Dulal Chandra Deb Barma by the Orissa High Court in Mst. Sarabai Agarwal v. Haradhan Mahopatra by the Gujarat High Court in Hasumatiben v. Ambalal and by the Kerala High Court in Kuriakose v. P.K Narayanan Nair. A contention similar to one advanced by Shri Abhyankar was also advanced before the Kerala High Court in Kuriakose's case. While considering such a contention based on section 97(2)(a) read with section 6 of the General Clauses Act, this is what the Kerala High Court has observed in paras 7 and 8 of the judgment:

“7. This clause, it was contended, saves appeals from orders on execution petitions pending at the commencement of act 104 of 1976 even where the orders were subsequent to such commencement. In order to meet the objection that clause (a) covers only pending appeals or appeals from orders passed before such commencement, counsel for the petitioner referred to clauses (f), (j), (k), (m), (n), (o), and (2) of section 97(2), emphasising the absence in clause (a) of words like “Pending immediately before the commencement of” occurring in clauses (f) and (z). I find it unable to accept this contention. The language of clause (a) shows that it is meant to save only appeals which were pending at the date of commencement of act 104 of 1976 and also appeals from orders under section 47 which had been passed before that date — In these cases the amendment to section 2(2) has no application as decrees have already come into existence and in the former case even an appeal had been filed. The clause cannot reasonably or fairly be construed as preserving the right of appeal from orders on execution petitions which had been filed before the date of commencement of act 104 of 1976, even where those orders are subsequent to that date As the object of clause (a) was to cover the two classes of cases-where the appeal was pending and where a decree in terms of the unamended section 2(2) had already come into existence it did not understandably use the expression ‘pending’ which would have limited it to one class and excluded the other.

8. I cannot agree that the other clauses in section 97(2), as clauses (f) and (z) which use the words “pending immediately before the commencement” would assist the petitioner's contention about clause (a). A glance at these clauses and clause (j), (k), (m), (n), and (o) will show that the same method has not been used in respect of the words in all of them. In clause (a) the word ‘Pending’ was not used obviously because the right to file appeal had accrued before the relevant date, as a decree had already come into existence. That is not true of clauses (j), (k), (m), (n) and (o) which provide for different contingencies. I reject the petitioner's contentions”.

We are in respectful agreement with this view, of Kerala High Court. Contrary view taken by the Patna High Court in Parshaya Properties Ltd. v. A.K Bose is rightly rejected by the Gujarat High Court in Hasumatiben's case. The said observations read as under:

“12……………. We have already come to the conclusion that an order passed under section 47 of the code is an order which was deemed to be a decree within Section 2(2) of the Code before the amendment and which is now deemed to be a decree for the purpose of Order XXI, Rules 46-H, 58(4) and 103 of the Civil Procedure Code. For all other purposes they are not deemed to be decrees, and therefore they are orders. We, therefore, with respect cannot agree with the propositions laid down in case of AIR 1979 Patna 308 (supra) that an order passed under section 47 of the Civil Procedure Code is covered by the first part of the definition of the word ‘decree’ contained in section 2(2) of the Civil Procedure Code. We are of the view that an order passed under section 47 of the Civil Procedure Code was not covered by the definition of the word ‘decree’ given in first part of section 2(2) of the Civil Procedure Code even before the amendment of section 2(2) of the Civil Proce-dure Code. In the circumstances the Parliament had in fact made a deeming provision and realising that unless such a deeming provision was made, an order passed under section 2(2) of the Civil Procedure Code would not become a decree they made that order to be a decree. That deeming provision is now taken out by the amendment and we have referred to the scheme of the Amending Act and it clearly appears to us that the Parliament clearly intended that the orders passed under section 47 of the Civil Procedure Code are not required to be made applicable as decrees and they made further provisions in Order XXI, where-ever it was thought fit, that the orders passed should be made appealable as decrees. We have in our judgment referred to the definition of the word ‘order’ contained in section 2(14) of the Civil Procedure Code and the added provision of section 99-A of the Civil Procedure Code. All these provisions were not considered in the judgment reported in AIR 1979 Patna 308 (supra). We have, therefore, disagreed with the views expressed in that ruling. We, therefore, hold that when executing Court passes an order under section 47 of the Civil Procedure Code, it is an order which is not appealable as a decree unless it is expressly provided for in other provisions of the Civil Procedure Code”.

Since we agree with the reasons given by the Gujarat High Court for rejecting the view of Patna High Court, we do not propose to deal with the said decision any further.

8. The decision of the Madhya Pradesh High Court as well as that of Patna High Court are also considered in the latest decision of the Orissa High Court in Sarabai Aggarwal's case. As already observed by us orders under section 47 would never have been treated as ‘decree’ except for the fiction created under Section 2(2) of the Code. Once the definition has undergone the amendment and the said words were expressly omitted, then by process of interpretation it cannot be held that the amendment has misfired and in spite of the amendment the said order still amounts to a decree. The main object behind the amendment was to reduce number of appeals. If the construction put up by the Madhya Pradesh, Patna and Delhi High Courts is accepted, then the very purpose of the amending enactment will be frustrated. Therefore in our opinion the view taken by the Full Bench of the Allahabad High Court is the correct view of the matter and section 97(2)(a) only preserves a right of appeal against the order passed under section 47 of the code in respect of the appeals already pending on the date of the enforcement of the amending Act as well as in respect of the appeals where orders on objection filed under section 47 had already been passed before the coming into force of the said amending Act. In case where the order under section 47 is already passed before the enforcement of the amending Act, an appeal is capable of being filed, if not actually filed, subject to law of limitation and other procedural requirements. Therefore such a right is also preserved by section 97(2)(a) of the Act.

9. In the present case the Darkhast in execution proceedings was filed on 10th July, 1980. Applications i.e Exhibits 54, 55 and 57 were filed thereafter and they came to be decided by the orders passed on 18th September, 1981. Thus the very execution proceedings were initiated after the amending Act came into force. Therefore obviously in the view which we have taken the appeals against the said orders were not maintainable and therefore the only remedy left to the plaintiffs was to file Civil Revision Applications under section 115 of the Code of Civil Procedure. Therefore these Civil Revision Applications will have to be heard on their merits in accordance with law. Since under the rules of the High Court these Civil Revision Applications are to be heard by a Single Judge of this Court, these matters may be placed before the Single Judge dealing with the Civil Revision Applications for deciding them on merits in accordance with law.

Order accordingly.