Tapan Chandra Deb Barma And Others v. Dulal Chandra Deb Barma And Others Opposite Parties.

1. I propose to dispose of the two civil revisions as they involve common questions of law touching the jurisdiction of the appellate Court to hear appeals arising out of an order under Section 47 of the CPC passed on or after 1-2-1977.

2. The petitioners are Judgement-Debtors. Dulal Chandra Deb Barma instituted Title Suit No. 10 of 1956 and obtained a decree. The Judgement-Debtors preferred abortive appeals. No further appeal was taken. The decree-holder plaintiffs took preliminary steps for preparation of the decrees, after their preparations execution proceedings were started. On registration of the Execution Cases notices were issued on the Judgement-Debtors who appeared and filed separate sets of objections under Section 47 of the CPC. As such two Misc. Cases stemmed before Shri B.K Bhattacharjee, Subordinate Judge, Tripura West at Agartala: (1) Civil Misc. Case No. 24 of 1974 (connected with Civil Revision No. 2 of, 1978) and (2) Misc. Case No. 26 of 1975 (connected with Civil Revision No. 3 of 1978). The objections of the petitioners were heard by the learned Subordinate Judge who by a common order dated 29-4-1977 held that the execution of the decrees could not be proceeded with and allowed the Misc. Cases.

3. Decree-holder Dulal Deb Barma filed two Misc. Appeals being Misc. Appeals Nos. 7 and 8 of 1977 before the Addl. District Judge, Agartala as appeals against the original decrees. They were heard analogously as the appeals arose out of a common judgement. One of the grounds taken was that no appeal lay against the orders passed in proceedings under Section 47 of the CPC as the appellants had no right to prefer an appeal against the orders dated 29-4-1977 passed under Section 47 of the CPC in view of the provisions contained in Section 97(2)(a) read with Section 3 of the Civil Procedure (Amendment) Act, 1976 for short “the Amendment Act”. Section 3 of “the Amendment Act” amends the definition of the term “decree” as contained in Section 2(2) of the Principal Act by deletion of the words and figures “Section 47 or”. As such on and from 1-2-1977, the date of enforcement of the Amendment Act, Section 2(2) of the CPC stands repealed and determination of any question within Section 47 is not a decree. Section 97(2)(a) of the Amendment Act reads as follows:—

“97. Repeal and savings—

(1) ** ** **

(2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-Section (I) has taken effect, and without prejudice to the generality of the Provisions of Section 6 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 S. 47 and every such appeal shall be dealt with as if the said Section 3 had not come into force;

* * * * * *”

4. Therefore, in view of the amendment made in the Code of Civil Procedure in amending Section 2(1)(a) and the provisions of repeal and savings contained in Chapter V, Section 97 of the Amendment Act, it was urged before the appellate Court that it had no jurisdiction to hear the appeals. The appellate Court held that it had jurisdiction to entertain and dispose the appeals in view of the provisions contained in Section 99-A as introduced by Section 96 of “the Amendment Act.” Whenever there is a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless a different intention appears in the repealing statute. The principles of Section 6 are that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in force at the time of the repeal. The question that is to be asked is whether the new Act manifests an intention to destroy old rights and liabilities and not whether it expressly keeps alive old rights and liabilities. Unless the new legislation manifests an intention incompatible with or contrary to the Provisions of Section 6 of the General Clauses Act, the principles of Section 6 will be applicable. Such incompatibility would have to be ascertained on due consideration of the relevant provisions of the new statute. Provisions of Section 6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous re-enactment unless contrary intention can be gathered from the new statute.

5. In view of the amendment of Section 2(2) of the Code the legal fiction by which determination of any question within Section 47 of the CPC amounted to a decree is no longer so after 1-2-1977 the date of commencement of “the Amendment Act.” Previously by virtue of the deeming provision determinations of questions under Section 47 were deemed as decrees whereas it is not so under the Code as amended.

6. Let me proceed to examine how far and to what extent the right of appeal against an order under Section 47 has been affected by the Amendment Act. It is clear that any determination under Section 47 on or after 1-2-1977 cannot be treated as a decree. Therefore, such determinations are not appealable as appeal from the original decrees. Therefore, the said right of appeal has been destroyed by expressed words, by the aforesaid deletion of the words and figures “Section 47 or”.

7. In expressed words contained in Section 97(2)(a) pending appeals have not been affected. It clearly says that the amendment introduced:

“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.”

8. Therefore, all pending appeals shall be proceeded against and determined as appeals notwithstanding the omission of the words and figures “Section 47 or” in Section 2(2) of the Code. Thus it has expressly saved pending appeals. Further, I am of the opinion that all determinations made under Section 47 of the CPC prior to 1-2-1977 are also appealable as they were decrees as contemplated under Section 2(2) of the Code and the accrued rights were not demolished or destroyed by the Amendment Act either expressly or by necessary intendment. Therefore, all rights that had accrued to a party prior to 1-2-1977 are also saved by the saving clause. Therefore, all accrued rights are also saved by virtue of the provisions of Section 97(2)(a) by necessary intendment. However, the Section does not save the rights which did not accrue to a party prior to 1-2-1977. The amending Act by necessary intendment has taken away the right of appeal in respect of the determinations made under Section 47 of the CPC on or after 1-2-77. It has saved pending appeals and rights accrued to a party to prefer an appeal in respect of the determinations made prior to 1-2-1977. Only the rights accrued and vested to a party prior to 1-2-1977 are saved. The object of the legislation touching the execution proceedings is writ large - the prime object is to shorten unnecessary and prolonged execution proceedings. By taking away the right of appeal it has shortened the protracted course of execution proceedings enabling the decree holders to enjoy the fruitage of their litigations as expeditiously as possible. In view of the object and scheme of the Amendment Act the necessary intendment can be clearly gathered that orders rendered under Section 47 on or after 1-2-1979 are no longer appealable.

9. The learned Judge has not considered the provisions of Section 97(2)(a) of the Code but instead gave much emphasis on Section 99-A as inserted by “the Amendment Act”. Section 99-A reads as follows:—

“No order under Section 47 to be reversed or modified unless decision of the case is prejudicially affected - Without prejudice to the generality of the provisions of Section 99, no order under Section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceedings relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.”

10. If Sections 2(2), 97(2)(a) and Section 99-A are read together and a harmonious construction is given it becomes clear that even in respect of the pending appeals as well, the appellate Court's powers are circumscribed and constricted. It cannot reverse or substantially vary an order under Section 47, unless it come to the conclusion that any error, defect or irregularity in any proceeding relating to execution has prejudicially affected the decision of the case. Section 99-A deals only with and in respect of the appeals saved by Section 97(2)(a) of the CPC.

11. Mr. M.C Deb Roy, the learned counsel for the opposite party has strenously submitted that though determinations made under Section 47 of the CPC are no longer a decree but are orders yet such orders are made appealable by or under Section 99-A of the Code as introduced in “the Amendment Act.” The contention is based on the fact that Section 99-A has been incorporated in Part VII of the Code which deals exclusively with appeals.

12. This contention overlooks the object and intention of Parliament in introducing the necessary amendment. If the object would have been to make such orders appealable Parliament would have conferred the right of appeal expressly in incorporating the right of appeal in S. 104 of the Code which deals with appeals from orders. Omission to introduce an order rendered under Section 47 as appealable under Section 104 clearly expresses the intention of the Legislature. Had the said intention been so it could have made the necessary amendment of Section 104 of the Code, and would have added a sub-clause making an order under Section 47 appealable, more so when the right of appeal had been snapped by the amendment made in Section 2(2) of the Code.

13. That apart, as already held Section 99-A relates only to the pending appeals and/or the rights of appeal that had accrued and not the right of appeal which had been taken away by “the Amendment Act”. A right of appeal must be expressed in clear and unambiguous language. A clear intention demolishing the right of appeal is crystal clear. However, there is no express provision conferring the right of appeal so taken away. I do not find that Section 99-A confers a right of appeal either expressly or by necessary intendment.

14. As a result of the foregoing discussions, I arrive at the conclusion that determinations made under Section 47 of the CPC on or after 1-2-1977 are not decrees and therefore not appealable, No right of appeal has been conferred by Section 99-A or any other provision of the Amendment Act. As the order of the learned Subordinate Judge was passed under Section 47 of the CPC on 29-4-1977 no appeal lay against his order, the Additional District Judge, Agartala acted without jurisdiction in entertaining and disposing of the appeals and the impugned appellate judgement dated 24-11-1977 in the Misc. Appeals is set aside.

15. However, the appellate Court may return the memorandum of appeals to the opposite parties (appellants therein) for due presentation before this Court as revisions. Parties will bear their respective costs in the revisions.

16. Order accordingly.