S.B.Majmudar:-
(1). This second appeal is filed by the original judgment debtor being defendant in regular civil suit no. 12 of 1969 wherein tie respondent - decree - holder had obtained decree for rs. 6182 56 - p. For execution of the said decree regular darkhast no. 60 of 197 was field by the respondent in the court of the civil judge j. D. Godhra. The said darkhast came to be dismissed by the executing court on 16 - 12 - 76. Against that order the respondent - decree - holder filed appeal no. 21 of 1977 in the district court at godhra on 7 - 3 - 1977. The said appeal was registered on the same day and it came to be allowed on 25 - 1 - 78 by the learned district judge panchmahals at godhra. The learned district judge has set aside the order of the executing court and remanded the darkhast for further proceeding to the executing court. It is this order which has been challenged by the judgment - debtor in this second appeal. This appeal was filed after the code of civil procedure stood amended and in view of the code of civil procedure amendment act 1976 every substantial question of law was required to be framed and certified by the learned admitting judge and accordingly two substantial questions of law have been framed at the stage of admission. They are as under :
(1) whether the lower appellate court had jurisdiction to entertain and allow the appeal in view of the amendment made in the code of civil procedure and having regard to the fact that the appeal was filed after the amendment came into force? (2) whether there was an adjustment of the decree by ex. 70 and if so whether the present darkhast was maintainable ?
The first substantial question impinges upon the jurisdiction of the appellate court to entertain an appeal arising out of an order in execution proceeding on account of the amendment of sec. 2 (2) by the said amendment of civil procedure code in 1976. Now if this submission is correct even no second appeal would lie against the decision in appeal as the appellate judge would be exercising power as an executing court. Mr. Desai has therefore requested that this second appeal may be permitted to be converted into a revision application and that is how it has been so permitted to be converted.
(2) Mr. Desais argument on the point of jurisdiction proceeds as under: once sec 2 (2) of the code of civil procedure is amended by deletion of the word under sec. 47 no order in execution would have the force of decree and consequently no first appeal would lie to the district court in execution proceedings and consequently the order of the appellate court is a null and void order and is without jurisdiction. Mr. Desai submitted that the word decree as originally defined under sec. 2 (2) of the c. P. Code before its amendment included reference to sec. 47. Any order under sec. 47 was deemed to be a decree and consequently it was subject to first appeal under sec. 96 and second appeal under sec. 100 c. P. C. As it stood then. By the code of civil procedure amendment act 1976 which was brought in force on 1 - 2 - 77 reference to sec. 47 was omitted from the definition of the word decree under sec. 2 (2) of the c. P. C. With the result that on and after 1 - 2 - 77 no order of any executing court can be deemed to be a decree for the purpose of appealability against it. Sec. 97 is a saving provision found in the same amending act. Sec. 97 of the code of civil procedure amendment act 1976 reads as under:
"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 - sec. (1) has taken effect and without prejudice to the generality of the
provisions of sec. 6 of the general clauses act 1879 (a) the amendment made in
clause (2) of sec. 2 of the principal act by sec. 3 of this act shall not affect any appeal against determination of any such question as is referred to in sec. 47 and every such appeal shall be dealt with as if the said sec. 3 had not come into force;."
it will be apparent that be
sec. 3 of the amending act sec. 2 (2) has been amended and reference to the word sec. 47 has been deleted from the definition of the word decrees. Consequently after 1 - 2 - 77 no appeal will lie against any order passed by the executing court in exercise of under sec. 47 of the code. To this general provision an exception has been carved out by sec. 97 (2) (a) extracted above. As per the said provision pending appeals against such order are saved and such appeals are not to be affected by the amendment of sec. (2) (2). The said saving provision is of a limited nature. It saves an appeal which may be pending on the date on which the amending act came into force as it says that the amendment shall not affect any appeal against determination of any question referred to in sec. 47 and every such appeal shall be dealt with as if sec. 3 had not come into force. The very concept of dealing with such appeal presupposes that the appeal must be pending on the date on which the amending act came into force. No other interpretation of the express language of sec. 97 (2) (a) is possible otherwise all those orders which may have been passed by the executing courts immediately prior to 1 - 2 - 77 but which were not subject matters of appeals would be appealable at any time after 1 - 2 - 77. That does not appear to be the intention of the legislature. If the legislature wanted to expressly save the appealability qua all the orders which were passed by executing courts prior to 1 - 2 - 77 when the amending act came into force the wording of sec. 97 (2) (a) would have been different and it would have been stated that the amendment shall not affect any order which has been passed under sec. 47 prior to the coming into force of the amendment. Such words are conspicuously absent. On the contrary the emphasis is only to save the subsisting appeals. Hence the conclusion is inevitable that if any order passed by any executing court prior to the coming into force of the amending act was subjected to an appeal and if such an appeal was pending on 1 - 2 - 77 when the amending act came into force such appeal was saved but the appeals instituted for the first time after 1 - 2 - 77 challenging the orders of the executing courts passed even before 1 - 2 - 77 could not be entertained on the dates on which such appeals came to be filed after 1 - 2 - 77. Thus on the date of the institution of any appeal after 1 - 2 - 77 there would be no order of any executing court which would remain clothed with the deeming effect of a decrees as such a deeming effect had stood withdrawn on 1 - 2 - 77 when the amending act came into force and consequently no appeal could be filed after 1 against any order passed by the executing court whether such an order was passed before or after 1 - 2 - 77. Only such appeals which were already filed on or before 1 - 2 - 77 and which may have been pending on the file of the appeal court would be saved under sec. 97 (2) (a). Similar provision is also made under sec. 97 (2) (m) for second appeals. The said provision is quoted as under: - xxx xxx xxx xxx 97 (2) - - - - - xxx xxx xxx xxx (m) the
provisions of sec. 100 of the principal act as substituted by sec. 37 of the act shall not apply to or affect the appeal from an appellate decree or order which had been admitted before the commencement of the said sec. 37 after hearing under rule 11 of order xli and every such admitted appeal shall be dealt with as if the said sec. 37 had not come into force.
Here also the legislature has emphasised the tendency of appeal against the orders of the first appellate court limited to a further fact that such pending appeal should have been admitted to the file of the high court under sec. 100. Only such second appeal would be saved and would be decided under the unamended provision otherwise new provision would apply. This clearly indicates the legislative intention that it wanted to save only pending second appeals with further fetter that they should be only admitted second appeals. Unadmitted second appeals which were pending on 1 - 2 - 77 had to be decided under the provisions of sec. (1) as amended. If the legislature for the purpose of second appeals has provided for the saving clause to this limited extent there is no reason why so far as the first appeals under execution are concerned a different intention should be culled out. In fact sec. 97 (2) (a) and 97 (2) (m) represent the same legislative intent with one modification that so far as the first appeals under execution are concerned their mere filing on or before the relevant date would save them. Further fetter is only for the second appeals. Otherwise the saving scheme in same secs. 97 (2) proposes to save the pending appeals and does not choose to save future institution of appeals against the orders that may have been passed before 1 - 2 - 77. In that view of the matter the first appeal filed before the district court was obviously incompetent. The order of the executing court was dated 6 the new amendment came into force on 1 - 2 - 77. The first appeal before the district court was filed oil 7 - 3 - 77 i. E. More than a month and six days thereafter and consequently it was not an appeal which was pending on the file of the district court on 1 - 2 - 77 and hence it could not have been entertained as a first appeal in the light of the amended definition of the word decree as found in sec. 2 (2) as amended by the amending act of 1976 and consequently the appellate order was also incompetent and null and void. As no appeal lay to the district court inevitable result is that the appellate judgment and order would be without jurisdiction and would be liable to be quashed under sec. 115 of the c. P. C. Accordingly this revision application is allowed. The judgment and order passed by the district judge panchmahals at godhra on 25th january 1978 in civil appeal no. 21 of 1977 are quashed and set aside as being competent and without jurisdiction. Rule is therefore made absolute on this limited ground with no order as to costs. Application allowed.