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Chuluram Hariram v. Bhagatram Bodlo .
Structured Summary of the Provided Opinion
Factual and Procedural Background
The appellant obtained a money decree against the respondent on 30th September (year not expressly stated). The respondent filed an objection to execution claiming protection under the Madhya Pradesh Gramin Rin Vimukti Tatha Rin Sthagun Adhiniyam, 1975; this objection was filed on 25th November 1976. The executing Court upheld the respondent's objection by an order dated 8th April 1977 and dismissed the execution application. The appellant appealed that order to the Additional District Judge, Bilaspur, who dismissed the appeal on 21st January 1978 on the ground that the appeal was not maintainable under the Code of Civil Procedure as amended by Act 104 of 1976. The appellant then filed a second appeal (the present appeal), relying on a single Bench decision in Ratanlal v. Hanuman Singh S. A. No. 54 of 1978, D/- 6-4-1978 to support maintainability. The appeal was first heard by a single Judge who referred the matter to a larger Bench because he was inclined to take a view different from the Ratanlal decision; the matter accordingly came before the court that authored this opinion.
Legal Issues Presented
- Whether the amendment made by Amending Act 104 of 1976 (which omitted the words "Section 47 or" from Section 2(2) of the Code of Civil Procedure) operated to deprive the appellant of a vested right of appeal against the executing Court's determination under Section 47 in pending execution proceedings.
- Whether Section 97(2) of the Amending Act preserves the right of appeal against determinations referred to in Section 47 and requires such appeals to be dealt with as if Section 3 of the Amending Act had not come into force.
Arguments of the Parties
Appellant's Arguments
- The appellant argued that the right of appeal against the determination under Section 47 accrued when the respondent filed his objection to the execution application (25th November 1976), i.e., at the institution of the proceeding in which the order was to be passed.
- There is a presumption that a vested right of appeal in pending proceedings is not affected by a subsequent change in the law relating to appeals; reliance was placed on Section 6 of the General Clauses Act, 1897 for this presumption.
- The appellant further relied on Section 97(2)(a) of the Amending Act which, it was contended, expressly preserves the right of appeal against determinations referred to in Section 47 and requires that every such appeal be dealt with as if Section 3 of the Amending Act had not come into force.
- The appellant relied upon a single Bench decision in Ratanlal v. Hanuman Singh S. A. as an authority supporting the maintainability of his appeal against the order dismissing execution.
The opinion does not contain a detailed account of the respondent's legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ratanlal v. Hanuman Singh S. A. No. 54 of 1978, D/- 6-4-1978 | Authority relied upon by the appellant for the maintainability of an appeal against the order dismissing an execution application. | The court notes that the appellant relied on this single Bench decision, and that a single Judge hearing the appeal was inclined to take a view different from Ratanlal's case, prompting referral to a larger Bench. |
| Garikapati Veeraya v. N. Subbiah Choudhry & Others, AIR 1957 SC 540 | Principle that a vested right of appeal in pending proceedings is not impaired by a subsequent change in law relating to appeals; right of appeal vests at the time of institution of the proceeding. | Used as the leading authority to support the conclusion that the amendment to Section 2(2) of the Code could not be construed to take away a vested right of appeal in pending executions. |
| Sadarali v. Doliluddin, AIR 1928 Cal 640 (FB) | Cases dealing with the effect of amendments restricting Letters Patent appeals showing that amendments curtailing appeal rights did not apply to pending suits. | Cited as one of the cases approved in Garikapati's case to illustrate that changes curtailing appeal rights do not affect vested rights in pending proceedings. |
| Re, Vasudeva Samiar, AIR 1929 Mad 381 (FB) | Similar principle as Sadarali regarding non-application of restrictive amendments to pending suits. | Cited alongside Sadarali and approved in Garikapati's case to reinforce the rule that restrictions on appeals do not take away vested rights in pending matters. |
| State of Bombay v. S. C. Films Exchange, AIR 1960 SC 980 | Reaffirmation of the construction that changes curtailing appeal rights do not impair vested appeals in pending proceedings. | Referred to as one of the subsequent cases that reaffirm the rule established in Garikapati's case. |
| Kashi Bai v. Mahadu, AIR 1965 SC 103 | Again reaffirmation of the rule concerning vested rights of appeal. | Cited as another authority confirming the construction in Garikapati's case. |
| Indira Sohanlal v. Custodian Of Evacuee Property, Delhi & Others, AIR 1956 SC 77 | Distinguishes conferral of a new right of revision or appeal during pendency (which can apply to subsequent orders) from abolition/curtailment of an existing right (which cannot be applied to pending proceedings). | Relied upon to explain the distinction between laws that confer/enlarge rights (which can apply to subsequent orders) and laws that curtail/abolish rights (which do not apply to vested rights in pending proceedings). |
| Gari-kapati v. Subbiah Choudhry (same as Garikapati Veeraya case), AIR 1957 SC 540 | See Garikapati Veeraya (leading rule on vested rights of appeal). | Quoted for the proposition that abolition of a right of appeal cannot be applied to orders made in pending proceedings because the right vests at institution of proceedings. |
Court's Reasoning and Analysis
The court began by identifying the statutory change: Amending Act 104 of 1976 (in force from 1 February 1977) amended Section 2(2) of the Code of Civil Procedure by omitting the words "Section 47 or", so that a determination under Section 47 no longer amounts to a decree. The object (as stated in the objects and reasons) was to reduce delays in execution by preventing determination under Section 47 from constituting a decree that attracts appeals.
The court then examined Section 97 of the Amending Act. Section 97(1) provides for repeal of amendments made by State Legislatures or High Courts inconsistent with the Amending Act. Section 97(2), and specifically Section 97(2)(a), preserved the applicability of Section 6 of the General Clauses Act, 1897 and declared that the amendment to clause (2) of Section 2 of the principal Act by Section 3 of the Amending 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."
Applying established rules of construction and precedent, the court reasoned that:
- There is a well-settled principle (as in Garikapati Veeraya and related cases) that a right of appeal vests at the time of institution of the proceeding in which the decree or order is ultimately passed, and a strong presumption exists that such vested rights in pending proceedings are not impaired by subsequent changes in the law governing appeals.
- The amendment to Section 2(2) (by which a Section 47 determination no longer amounts to a decree) cannot be construed to take away a vested right of appeal in pending executions because that would deprive parties of rights already vested at the time proceedings were instituted.
- Section 97(2) reinforces this view by expressly preserving appeals against determinations referred to in Section 47, and by stating that such appeals shall be dealt with as if Section 3 had not come into force. The court observed that the phrase "any appeal" in Section 97(2)(a) is wide enough to cover appeals from orders passed in pending execution proceedings in which the right of appeal had vested under the law as it stood before the Amending Act.
- The court distinguished the principle that a right to finality does not vest in a suitor until the order is passed (which supports the application of a new law conferring or enlarging rights during pendency to subsequent orders) from the present situation where the new law curtails or abolishes an existing right. The latter cannot be applied to pending proceedings because that would affect vested rights. This distinction was supported by Indira Sohanlal and Garikapati.
- Although the practical effect of allowing such appeals might to some extent frustrate the parliamentary object of reducing appeals (i.e., it may "stultify" the amendment's object in respect of pending cases), the court held that this consequence is not enough to treat the amendment as retrospective in intention; if Parliament had intended to take away vested rights, it would have done so in clear terms.
On this analytical foundation, the court concluded that the appellant's right of appeal was subsisting and unaffected by the amendment to Section 2(2) of the Code; therefore the Additional District Judge erred in dismissing the appeal as not maintainable.
Holding and Implications
Holding: The appeal is allowed. The court set aside the order of the Additional District Judge dismissing the appeal and directed that the Additional District Judge decide the appeal afresh in accordance with law.
Consequential orders explicitly directed by the court:
- The parties are directed to appear before the Additional District Judge on 1st September, 1979.
- The records of the case are to be returned forthwith to the Additional District Judge's Court.
- There shall be no order as to costs.
Implications noted by the court (as stated in the opinion):
- The conclusion permits filing of appeals against determinations under Section 47 in pending executions, which may to some extent counteract the amendment's object of reducing delays in execution; the court acknowledged this potential consequence but did not regard it as a sufficient reason to deprive parties of vested appellate rights.
- The court's decision applies established principles concerning vested rights of appeal and the non-retrospective operation of laws that curtail such rights; the opinion reasons from, and relies upon, prior authorities rather than announcing a novel legal rule beyond applying those principles to the legislative amendments in question.
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 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. The leading Indian authority on this point is the case of Garikapati Veeraya v. N. Subbiah Choudhry & Others AIR 1957 SC 540. It was held in this case that in suits filed in British India before the coming into force of the Constitution an appeal lay to the Supreme Court against a decision of the High Court rendered after that date, if the suit satisfied the requirement of valuation for appealing to the Privy Council or the Federal Court according to the law in force at the date of institution of the suit, although it" did not satisfy the requirement of valuation as laid in Article 133 of the Constitution as it stood before the Constitution 30th Amendment Act. In Sadarali v. Doliluddin AIR 1928 Cal 640 (FB) and in Re, Vasudeva Samiar AIR 1929 Mad 381 (FB) which were approved in Gurikapati's case the question related to the effect of amendment in Letters Patent restricting the right of appeal from the judgment of a single Judge by putting condition of leave to be obtained from that Judge and it was held that the amendment did not take away any vested right of appeal and. therefore, did not apply to appeals arising from pending suits. In all these cases the object of the change La law was obviously to curtail appeals yet they were held not applicable to appeals arising from pending cases though this conclusion deprived to a substantial extent the new law in achieving its object immediately. The rule of construction recognised in Garikapati's case was reaffirmed in subsequent cases; State of Bombay v. S. C. Films Exchange, AIR I960 SC 980, Kashi Bai v. Mahadu, AIR 1965 SC 103.
6. The provisions of Ss. 3 and 97 of the Amending Act have to be construed in the light of these principles. 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. This inference is further strengthened by Section 97 (2) which preserves the applicability of Section 6 of the General Clauses Act, 1897. It is also noteworthy that Section 97 (2) (a) of the Amending Act, which provides that the amendment made to Section 2(2) of the Code by Section 3 "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" is not in terms restricted to pending appeals or to appeals arising from determinations made before the coming into force of the Amending Act. The words "any appeal" are wide enough to cover appeals from orders passed in pending execution proceedings in which the right of appeal had vested in a party in accordance with Ss. 2 and 47 of the Code as they stood before the Amending Act had come into force.
7. The learned single Judge in his referring order has referred to the principle (hat the right to finality of an order does not vest in a suitor until the passing of the order and, therefore, if a new right, of appeal or revision is conferred during the pendency of the proceeding but before making of the order it is the new right of appeal or revision conferred that would govern the order. This principle has application when the new law confers a new right of appeal or enlarges an existing right of appeal; but it has no application when the new law takes away or curtails an existing right of appeal. The reason behind this distinction is that a right to finality of an order does not vest until the making of the order and, therefore, enlargement of an existing right of appeal or conferral of a new right of appeal during pendency of a proceeding applies to all orders subsequently made as the application of the new law in this manner does not affect any vested right. In contrast, 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. The distinction pointed out above is fully borne out by the Supreme Court decisions in Indira Sohanlal v. Custodian Of Evacuee Property, Delhi & Others, AIR 1956 SC 77 and Gari-kapati v. Subbiah Choudhry AIR 1957 SC 540 at pp. 546-547 (supra). Sohanlal's case which dealt with conferral of a new right of revision during the pendency of proceeding, was distinguished on this basis in Garikapati's case. As we are here dealing with a new law which abolishes a right of appeal, the principle to which reference was made by the learned single Judge has no application.
8. The conclusion reached by us will no doubt enable the filing of appeal against determinations under Section 47 in pending executions and that may to some extent stultify the object with which Section 2(2) of the Code may have been amended. But this itself is not sufficient for us to hold that the amendment of Section 2(2) is intended to be retrospective so as to take away vested rights of appeal. We have already referred to the cases dealing with change in law restricting Letters Patent Appeals where the obvious intention was to reduce the number of such appeals, yet it was held that the new law did not affect any vested right of appeal in a pending suit. It has to be presumed that Parliament, while enacting the Amending Act, was aware of the rule of construction recognised by the Supreme Court in Garikapati's case and affirmed by it in subsequent case and if it intended to take away vested rights of appeal in pending execution proceedings it would, have expressed that intention in clear terms. There is an inevitable interaction between methods of parliamentary drafting and the rules of construction recognised by the highest tribunal of the country and although these rules are not binding on Parliament and fashions in Parliamentary draftsmanship are not static, yet there must exist very strong reason to enable us to infer that Parliament formulated its legislation without any regard to a well established rule of construction.
9. For these reasons, we are of opinion that the appellant had a subsisting right of appeal against the order of the executing Court dismissing his execution application which was unaffected by the amendment made in Section 2(2) of the Code, and that the Additional District Judge was not right in dismissing the appeal as not maintainable.
10. The appeal is allowed. The order of the Additional District Judge dismissing the appeal is set aside and he is directed to decide the appeal afresh in accordance with law. The parties are directed to appear before the Additional District Judge on 1st September, 1979. The records of the case be returned forthwith to that Court. There shall be no order as to costs.
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