"If an order is passed by an executing court after 1-2-1977 disposing of an application under Order 21, Rule 97, C.P.C. which was pending on that date, whether the order passed by the executing Court is appealable under the provisions of the amended Code of Civil Procedure or the aggrieved party has to file a suit under the provisions of the Code as it stood prior to its amendment?"

2. The material facts are that a decree for eviction was passed on 10th Jan. 1971 in favour of the appellant. In execution of that decree there was resistance by respondent No. 1, Mangal. The appellant decree-holder filed an application on 6th March 1975 under Order 21, Rule 97, Code of Civil Procedure, complaining of resistance by respondent No. 1. This application was allowed by the executing Court On 28th April 1977 holding that respondent No. 1 was not entitled to resist delivery of possession in execution of the decree. Respondent No. 1 preferred an appeal against this order which was allowed by the First Additional District Judge, Ujjain, by his order dated 13th Sept.

1978 and the application of the appellant under Order 21, Rule 97 was dismissed as barred by limitation. The appellant decree-holder then filed the present appeal in the High Court. One of the contentions raised on behalf of the appellant before the High Court is that respondent No. 1 was not entitled to file an appeal against the order dater 28th April 1977 passed by the executing Court and that he should have filed a suit under Order 21, Rule 103 of the Code as it stood prior to its amendment by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976), It is this contention which has led to the reference made by the learned single Judge.

3. The scheme of the Code as it stood before its amendment was that an application made under Rule 97 of Order 21 by the decree-holder was disposed of in accordance with Rule 98 and Rule 99. If the resistance or obstruction was occasioned without any just cause, the executing Court would allow the application of the decree-holder under Rule 98 whereas if the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court was enjoined to dismiss the application under Rule 99. Similarly, if a person other than the judgment-debtor was dispossessed in execution he could apply under Rule 100. If the executing Court found that the applicant was in possession on his own account or on account of some person other than the judgment-debtor, the executing Court was to allow the application and to put the applicant in possession under Rule 101. Rule 103 which made the orders passed under Rules 98, 99 and 101 conclusive subject to a regular suit provided as follows:--

"Rule 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,"

4. The Code of Civil Procedure (Amendment) Act, 1976 has brought about drastic changes in the Code. The Amendment Act came into force on 1st February 1977. Section 72 of the Amendment Act sets out the amendments made in Order 21. The amendments substitute new Rules 98 to 103 in place of the old rules. The scheme of the new rules is that all questions of right, title or interest arising for consideration in an application under Rule 97 or Rule 99 are to be determined finally by the executing Court and not by a separate suit and an order disposing of such an application has the force of a decree and is appealable. The new Rules 101 and 103 which are important read as follows:--

"101. All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives; and relevant to the adjudication of the application, shall be determined by the Court, dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

103. Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree."

5. Section 97 of the Amendment Act which is also material and which deals with repeal and savings, in so far as relevant for this case, reads as follows:--

"97. Repeal and savings.

(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, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement."

6. Section 97 of the Amendment Act has been construed in three Division Bench decisions of this Court. These decisions are Chuluram v. Bhagatram 1980 MPLJ 37 : (AIR 1980 MP 16), Sheshkumar Pradhan v. Kesheo 1980 MPLJ 335 : (AIR 1980 MP 166) and Sita-ram v. Chaturo (1981 Jab LJ 171). It has been held in these cases that the specific savings made in Clauses (a) to (zb) of Section 97 (2) are without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 and, therefore, if a vested right arose under Section 6 of the General Clauses Act, that would also be preserved by Section 97 (2) unless a clear intention is evinced either in Clauses (a) to (zb) or in other provisions of the Amendment Act to negative continuance of such a right. Section 97 (3) which makes the Code as amended apply to every proceeding pending at the commencement of the Amendment Act has its operation "save as otherwise provided in Sub-section (2) of Section 97." The implication of these words is to subordinate section 97 (3) to section 97 (2) and if a right is saved under Section 97 (2) it is not taken away by Section 97 (3). As already seen, Section 97 (2) is not limited to savings in Clauses (a) to (zb) but it also preserves the generality of the provisions of Section 6 of the General Clauses Act. Therefore, if a vested right of suit or appeal can be said to be preserved either by Clauses (a) to (zb) of Section 97 (2) or by Section 6 of the General Clauses Act it is not taken away by Section 97 (3).

7. The question that arises is whether on the facts of the instant case a right of suit under the old Rule 103 of Order 21 can be said to, have arisen and preserved by Section 97 (2) of the Amendment Act or Section 6 of the General Clauses Act. The relevant clause in this respect of Section 97 (2) is Clause (q) (ii) which only preserves a suit instituted under the old Rule 103 before the commencement of the Amendment Act. This clause has no application here as no suit under Rule 103 was pending before the commencement of the Amendment Act. As regards Section 6 of the General Clauses Act, a right of suit could be preserved by it only if the right had arisen before the commencement of the Amendment Act. We have already quoted the old Rule 103 above. A perusal of that rule would go to show that a right of suit under that provision accrued in favour of any party not being a judgment-debtor against whom an order was made under the old Rules 98, 99 or 101. In the instant case, the application made by the appellant decree-holder under Rule 97 was pending when the Amendment Act came into force. As this application had not been disposed of before the commencement of the Amendment Act, there was no accrual of any right of suit under the old Rule 103. It would thus be seen that a right of suit under the old Rule 103 in the instant case did not accrue before the commencement of the Amendment Act and no such right is preserved by the provisions of Section 97 (2) or Section 6 of the General Glasses Act Section 97 (3), therefore, had full operation and the application under Rule 97 pending at the commencement of the Amendment Act had to be disposed of in accordance with the Code as amended. Under Rules 98 and 101 as amended the executing Court had jurisdiction to decide all questions of right, title or interest in disposing of the application under Rule 97 and the order allowing the application was appealable under Rule 103. Such an order could not be challenged by filing a suit under the old Rule 103 because the right to institute a suit under that rule did not accrue before the commencement of the Amendment Act and was not preserved. This is also the view which was taken by a learned single Judge in Modi Bai v. Nagraj (1982 Jab LJ 218), which, in our opinion, was correctly decided.

8. We may, however, state that had the application under Order 21, Rule 9V been decided before the commencement of the. Amendment Act, the position would have been different because then the right of suit under the old Rule 103 would have accrued to the party against whom the application had been decided and this right of suit would not have been affected by the Amendment Act. Reference in this connection may be made to the case of Sheshkumar Pradhan (AIR 1980 Mp 166) (supra) in which it was held that a suit instituted under Order 21, Rule 103 (old) after the commencement of the Amendment Act challenging an order made under Order 21, Rule 100 (old) before the commencement of the Amendment Act was maintainable.

9. Now we come to the decision in Bhanwarlal Jain v. Bherulal (1982 MPLJ 253) : (AIR 1982 MP 154). In that case it was held that the right to challenge an order made after the commencement of the Code in a pending application under Order 21, Rule 58 by a suit under Order 21, Rule 63 (old) was preserved and was unaffected by the Amendment Act. We are not here directly concerned with Order 21, Rule 58. However, the reasoning that a right of suit under Order 21, Rule 63 (old) arose on the date of attachment cannot be supported. On the language used in Order 21, Rule 63 the right of suit under that provision could arise only after an application under Order 21, Rule 58 was disposed of. The question, however, whether such a suit could be filed even after the commencement of the Amendment Act to challenge an order made after the commencement of the Amendment Act in a pending application under Order 21, Rule 58 has also to take into account Clause (q) (i) of Section 97 (2) of the Amendment Act which does not directly arise for consideration in the instant case. We, therefore, decline to express any opinion on the correctness of the ruling in Bhanwarlal Jain's case.

10. Before parting with the case we will like to point out that the principle that a right of appeal arises at the commencement of the original proceeding has no application to the accrual of right of suit under the old Rules 63 and 103 of Order 21. The suits under these Rules were not continuations of the applications made under Rules 58 and 97 and were also not in the nature of appeals.

This was specifically held by the Supreme Court in Sawaj Singhai Nirmal Chand v. The Union of India AIR 1966 SC 1068 at p. 1071, The principle that may apply in the instant case is that when a right of appeal or revision is conferred or enlarged during the pendency of a proceeding the right so conferred or enlarged is available in respect of an order subsequently made in such a proceeding Moti Ram v. Suraj Bhan AIR 1960 SC 655 at p. 657. The new Rule 103 conferred a right of appeal during the pendency of the application under Order 21, Rule 97 and so on the above principle the right became available in respect of the order made by the executing Court disposing of the application.

11. For the reasons given above, our answer to the question referred is as follows:--

If an order is passed by an executing Court after 1st Feb. 1977 disposing of an application under Order 21, Rule 97 which was pending on that date, the order passed by the executing Court is appealable under the provisions of the amended Code and the aggrieved party has no right to file a suit under the provisions of the Code as it stood before its amendment.

There will be no order as to costs of this reference.

12. The case will now be listed before the appropriate single Bench at Indore for final disposal.