D.S Tewatia, J.:— The determination of the ambit of sub-section (2)(a) and (3) of section 97 of the Code of Civil Procedure (Amendment) Act 1976, hereinafter referred to as the Amending Act, is the legal issue of some substance that falls for consideration in this referred revision petition.

2. This revision petition, in the first instance, came up before Goyal, J who finding himself unable to subscrib to the view enunciated by Sharma, J. in two reported decisions in Darshan Kumar v. Raghunandan Sharma . 1978 80 PLR 368. and Surjit Singh v. Sarda a Singh . 1978 80 PLR 779. and similar view taken in Orissa High Court decision reported in Nanda Kishore Mahara ???ana v. Mahabir Prasad Lath . AIR 1978 Orissa 129., and also finding a contrary view taken in Mohan Dass v. Kamla Devi . AIR 1978 Raj 127., referred the matter to the larger Bench and that is how the matter is before us.

3. In order to appreciate the legal point, a reference to certain basic facts at this very stage would be relevant. The petitioner herein preferred objections under section 47 of the Civil Procedure Code which were dismissed by the executing Court, vide order dated 15th July 1977. Against that order, the objector preferred an appeal to the District Judge who held that in view of the amendment effected in section 2(2) of the Code of Civil Procedure by section 3 of the Amending Act the order passed under section 47 of the Code of Civil Procedure ???s ed to be a decree and therefore no appeal was competent. This order came to be assailed in the High Court in the present revision petition.

4. For facility of reference, the relevant provisions of the Civil Procedure Code as these stood prior to the amendment and after the amendment deserve to be noticed at this stage:

5. Sub-clause (a) of clause (2) of section 2 of the unamended Civil Procedure Code was in the following terms:—

“2. In this Act, unless there is and thing ???epugn???t in the subject or context—

(2) ‘decree’ means the formal expression of an adjudication which ??? far as regards the Court expressing it,. ???onclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either p???ninary or ??? It sh??? be deemed to include the rejection of a plaint and the determination of any question within section 47 or section ??? but shall not include—

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

6. Sub clause (a) of clause (2) of section 2 of the amended Civil Procedure Code is in the following terms:

“2. In this Act, unless there is anything ???ep???ant in the subject ??? context—

7. ‘decree’ means the formal expression of an adjudication which so far at 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 144, but shall not include—

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

8. Further the relevant provisions of section 97 of the Amending Act are as under;—

“97. (1) Any amendment made, or any provision in???erted 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 on the repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section ??? of the General Clauses Act, 1897 (1??? 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;

(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 commenc???ment, notwithstanding the fact that the right, or cause or action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement”

9. The facts involved in the case of Darshan Kumar (supra) were that one Vishnu Datt Aggarwal, owner of the property in dispute, on 2nd September, 1964, obtained an order of ejectment against one Raghunandan Sharma. Before this order could be executed, Darshan Kumar petitioner purchased the suit property from Vishnu Dutt Aggarwal on 7th July, 1975, He then on 1st September, 1976 filed a suit for possession of the said property on the ground that the tenancy of Raghunandan Sharma had come to an end and he was a trespasser. In the return an objection was taken that the suit for possession was not maintainable as the petitioners should have executed the order of ejectment obtained by Vishnu Dutt Aggarwal. On 30th November, 1976, petitioner Darshan Kumar filed an application before the learned trial Court that suit under section 47, sub section (2), of the Code of Civil Procedure, as unamended, be converted into an execution petition. This prayer was turned down by the learned trial Court on the ground that sub section (2) of section 47 of the Code had, by then, been deleted and It was not open to him to convert the suit into an execution petition. It is this order that came up in challenge in the revision petition in the High Court, Sharma, J, who decided the revision petition, observed that the opening words ‘used in subsection (3) of section 97 of the Amending Act were save as otherwise provided in sub-section (2)’. These words clearly implied that sub-section (2) should dominate the geld and sub section (3) would apply only to those cases to which subsection (2) would not be applicable. And that substantive rights of the litigants had thus been preserved by the legislature under sub section (2) of section 97 by expressly laying down that the provisions of that statute would not affect the generality of the provisions of section 6 of the General Clauses Act and thus section 6 of the General Clauses Act enjoyed precedence over the provisions of section 97 of the Amending Act.

10. In Surjit Singh's case (supra), the facts were that a decree for possession by way of pre emption was passed in respect of agricultural land. When the respondent took out execution proceedings, the petitioner therein raised an objection that the decree was unexecutable on the ground that if execution was allowed, the total land which the respondent would come to possess would go beyound his permissible area. These objections were dismissed by the learned executing Court on 22nd April, 1978. The petitioner went up in appeal before the learned Additional District Judge, Ambala. That appeal was dismissed on the ground that because of the amended Civil Procedure Code no appeal lay against the order passed by the learned executing Court dismissing the objections filed under section 47 of the Code of Civil Procedure. Following his earlier decision in Darshan Kumar's case (supra), Sharma, J. observed that substantive rights of the parties which became subject-matter of proceedings instituted prior to the amendment of the Code had been preserved by the legislature under sub section (2) of section 97 of the Amending Act.

11. In Nand Kishore Moharana's case (supra), the facts where that the executing Court dismissed the objections preferred under section 47 of the Code. The aggrieved party preferred an appeal before the District Judge on 4th July, 1975. When that appeal failed, the aggrieved-party preferred a second appeal in the High Court. In the High Court the respondent raised a preliminary objection challenging the maintainbility of the appeal on the ground that by the amendment of the Code in the year 1976 orders passed under section 47 of the Code would not be taken to be a decree and so the appellant could not prefer the said appeal against the order of the Court below determining a question under section 47 of the Code of Civil Procedure. In the facts mentioned in the judgment it is not clear as to whether the appeal was preferred after the Amending Act had come into force or it was at that time pending. The learned Judge, however, took the view that the provisions of sub section (2) of section 97 of the Amending Act protected the right that existed prior to the coming in force of the Amending Act.

12. The facts involved in Mohan Dass's case (supra), were that it wag a case of special leave under section 11 of the Rajasthan High Court Ordinance, 1949, directed against the judgment of the learned Single Judge dated 9th May, 1977. A preliminary objection was raised that in view of the amendment of clause (2) of section of the Principal Act by section 3 of the Amending Act, the appeal was not maintainable, P.D Kudal, J., who delivered the judgment for the Court repelled the contention with the following observations:

“……The basic question for consideration is, whether by the Amending Act, 1976, the necessary intendment can be inferred by which a right of appeal has been taken away. In the scheme of the Amending Act, 1976, it is writ large that the litigation should be shortened and curtailed and by emission of the words Section 47 or’, the orders under Section 47, Civil Procedure Code, are no more appealable. The intention of the Legislature therefore, is that the decree-holder should be able to reap the fruits or his decree as expeditiously as possible, and that the judgment debtor should not be allowed to have a second inning by way of fri??? objections and thus defeat the very purpose of the decree. The Le???islature further intended that execution matter should be disposed of as expeditiously as possible and hence these amendments. In our considered opinion, the necessary intendment can be dearly inferred from the fact that appeals against the orders under section 47, Code of Civil Procedure, are barred.”

13. We, however, find no detailed discussion in any of the decided cases referred to us from either side.

14. Mr. P.C Mehta learned counsel for the petitioner, has contended that the language of clause (a) of sub section (2) and sub section (3) of section 97 of the Amending Act leaves no scop??? for any doubt that application of clause 6 of the General Clauses A??? far from being dispensed with was on the contrary invoked in express terms by the Amending Act and that once it is held that clause 6 of the General Clauses Act continued to apply, then all rights that vested in a litigant on the date of the filing of a suit in view of be law then prevailing would remain intact and available to the litigating parties throughout the career of their suits. In support of the above wide proposition, he sought sustenance from the following observations of their Lordships of the Supreme Court in Garikapati Veeraya v. N. Subbiah Choudhry & Others . AIR 1937 SC 540..

“From the decisions cited above the following principles clearly emerge:

i) That the legal pursuit of a remedy, Suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic un???ty and are to be regarded as one legal proceeding

(ii) The right of appeal is not a more matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the ???tigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment ???ad not otherwise”

15. The learned counsel for the petitioner also placed reliance on Jose Da Costa v. Bascora Sadasiva Sinai Narcornium . 1976 2 SCC 917, and drew our pointed attention ???o the following observations herefrom:

“Before ascertaining the elect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to b???r in mind two well established principles. The first is that ??? provision of a statute dealing merely with matters of procedure may properly, unless that con???truction b??? textually inad???ible, have r???pective effect attributed to them provisions w???h touch a right in existence at the p???ing of the s???tute are not to DS applied retrospectively in the a absence of express ???actment or necessary intendment’ (see Delhi Cloth & General Mills Co. Ltd. v. Income tax Commissioner) 54 Ind App 421 (AIR 1927 PC 242) The second is that a right or appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit through out the rest of the caree??? of the suit. There are two exceptions to the application of this rule, viz. (1) when by competent enactment such right of appeal is taken away expressly or impliedly with ???pective effect and (2) When the Court to which appeal lay at the commencement of the suit stands a???hed (see Garikapatti Veeraya v. N. Subbiah Choudhury 1957 SCR 488 : (AIR 1957 SC 540) and Colonial Sugar Refining Co. v. Irving ([1905] A.C 369),”

16. There is no dispute with the proposition of law enunciated by their Lordships in the aforesaid two decisions, but whether any right vested in a litigant under the existing law, after the enforcement of a subsequent???la??? survives or not with or without the aid of section 5 of the General Causes Act would depend on the language used in the Amending Act and the ???ention of the legislature which the a rending statute attempted to effec???uate.

17. A ??? reading of sub section (3) ???s the expression ‘save as otherwise provided in sub section (2) would show that the legislature expressly ???nde the principal Act as amended to apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such amendment notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceedings, appeal or application was instituted or tiled had been acquired or had accured before such commencement. The legisla???ure could not have expressed its intention in language most unequivocal than the one we find used above in sub-section (3) and if sub section ??? had stood as mentioned above, then no doubt whatsoever could be entertained that not only the suit, proceeding, appeal or application that were pending were to he governed by the principal Act as amedded but even those which were to be filed, were to be so governed despite the fact that right or cause of action had accrued in pursuance whereof the suit, proceeding, appeal or ???tion was to be instituted or filed had been acquired or ???d acc???red before the commencement of the Amending Act. When considered in that undiluted form, that was the effect of sub section (3).

18. Now we have to see as to what extent the expression ‘save as otherwise provided in sub-section (2)’ dilutes such drastic retrospective effect of the Amending Act. This takes ???s to sub section (2) in order to examine the ambit of the said provision.

19. If sub section (2) had stood minus the expression ‘and without prejudice to the generality of the provisions of section 6 of the General Clauses Act. 1897 (10 of 1897), then there could be no controversy and doubt about the scope thereof which was to save from the application of the Amending Act only such pending matters as were enumerated in clauses (a) to (???) thereof, but then the question arises, what to make of the expression ‘and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897)’ The learned counsel for the petitioner interpreted the incorporation of the said expression in sub-section (9) as being intended by the lagislature to protect such rights as accrued to a litigant on the filing of the suit under the then prevailing law for being availed throughout the career of the said suit in regard to matters enumerated in clauses (a) to (z) of sub section (2) of section 97 of the Amending Act.

20. On the other hand on behalf of the respondents, it was argued that the use of the said expreasion in subsection (2) signifies no such thing as argued on behalf of the petitioner. What it signifies, according to the learned counsel for the respondents, is that despite section 6 of the General Clauses Act what the legislature intended to save were the pending matters enumerated in clauses (a) to (z) of sub section (2) and nothing more

21. At this stage, relevant provisions of section 6 of the General Clauses Act require noticing:

“6. Where this Act or any Central Act or Regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then unless a different intention appe???rs, the repeal shall not—

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or sufferred thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed;

22. If one is to accept the interpretation put upon sub section (2) on behalf of the Petitioner, then sub-section (3) becomes totally redundant and ot???, but if we accept the interpretation sought to be put on behalf of the respondents, then use of the expression ‘and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897)’ in sub section (2) becomes totally irrelevant.

23. Sub section (2) has to be interpreted keeping in view the well known rule of interpretation that the language of statute has to be so construed as to save the vested right from being taken away if that can be done without doing violence to the language of the statute and if it does not conflict with the express or necessarily implied intention of the legistature which it sought to give effect to by enacting the ???aid statute. However, one can also not lose sight of another equally important rule of interpretation of statutes that ???he Court has to ???o ???ise various provisions as it h???s to be assumed that the legislature does not enact anything that is ???vant or contrary to the purpose behind the enactment

24. When the construction of sub-section (2) is ‘approached in the light of the aforesaid rule of ???tion’ then on? reaches an Inesc ???e conclusion—

(1) that the legislature intended by inc???orating sub-section ??? to save the enumerated pe???ing ???s alone from the application of ??? Act as a???;

(2) by ??? ab??? he legislature used the ???s ??? ‘and without pr??? of the provisions of section 6 of the ??? C???s Act ??? (??? of 18???7)’ in order to fully ???? of ??? the pending matters ??? ???d in c??? ??? to???(2); ???

(3) that the use of ??? expression ??? was not ???ed at all by the ??? re ??? brin??? ??? of sub section (2) any pending matter ??? had not been ???erated therein or saving the ??? of any such ??? after the commen???ent of the Amending Act from the application thereof.

25. When sub section (2) is ??? ???sion ??? completely harmon???sed ??? sub section ??? use of the expression and without p???e to ???s of rection ??? of the General Clauses Act ???97 ??? of 18??? ??? (2) is also not rendered ???.

26. Mr. Mahta, ??? the petioner, them s???ght ??? that the ??? of ??? sub section (2) of ??? of ??? ????ndir.g Act would show ??? the ??? therein is diffe??? the la??? used in the ??? of sub ection 12 and th??? ???er the ???re intended to save ???tters pending before the ???nt of ??? Act, only it ??? expre???ly said ??? S??? (a) of sub section ??? exp???sion ??? immediately before the com??? of th??? section as used in clauses ???) thereof is ???? regard ??? the appeal against the order disposing of the objections under section 47, not ??? the pending appeal ??? to ??? filed is ??? in-tended to be protc???ed

27. We find no merit ??? contention Clause (a) of sub section (2) can make ???e when bet??? ???o or???s ‘appeal’ and ???ag a???’ either the ???rd ???rred or to be insti???d’ ???sed. If the word ???? used h???t clearly brings in accord this clause with the ??? sub-section (2) which was to save matters pending imm??? be ??? the ??? into force of the relevant provisions of the principal Act, but if the words ‘to be pr???fer re???’ or to be filed or ‘to be ???d’ a re???n the two words ‘appeal’ and ‘against’ occur??? in clause (???) ??? it would render the amendment affiected in claus??? (2) of section 2 of the principal Act by section 3 of the Amending Act ???y ???ory, in that it would protect the character of the ???d r???disposing of the objections arising even from a suit filed after the co???ment of the Amending Act

28. Our reasons for the aforesaid conc???usions will become imme-???iately ???r from the mere reading of clause (e) with the insertion of the latter cetegory of words, as when the said words are so incorporated, clause (a) would read:

“(a) the amendment made to clause (2) of section 5 of the principal Act by section 3 of this Act shall not affect any appeal ‘to be instituted, 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:”

29. Clause (a), when so read in simple language, would mean this any appeal filed against the determination of any such question as is referred to in section 47 shall be dealt with as if the said section 3, which amended clause (2) of section 2 of the principal Act, had not come into force’. When so ???ead, we find no limiting words in the clause which may confine the scope of saving to an appeal to be filed against an order disposing of objections under section 47 arising only in a suit instituted prior to the commencement of the Amending Act alone.

30. For the aforesaid reasons, we are clearly of the view that clause (a) of sub section (2) of section 47 of the Amending Act saves only the pending appeal against the determination of the objections filed under section 47, that is, the pending appeal should not be nonsu???ted on the ground that no such appeal was competent by virtue of clause 2) of section 2 of the Principal Act, as amended by section 3 of the Amending Act.

31. In the present case, the appeal was not pending before the District Judge when the Amending Act became operative. The appeal in question was filed after the Amending Act came into force Such appeal on the day on which it was filed was clearly incompetent and, therefore, the District Judge rightly dismissed the same on that ground Accordingly, we find no merit in this revision petition and dismiss the the same but with no order as to costs.

R.M.S

Petition dismissed.