Andhra HC (Pre-Telangana)
Guntupalli Rama Subbayya vs Guntupalli Rajamma on 29 October, 1987
Equivalent citations: AIR1988AP226, AIR 1988 ANDHRA PRADESH 226, (1988) 1 CIVLJ 558 (1987) 1 ANDH LT 243, (1987) 1 ANDH LT 243
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
JUDGMENT Syed Shah Mohammed Quadri, J.
1. The short question of significant practical importance that arises in this civil revision petition is whether an order determining any question within See. 47 C.P.C, passed after amendment of definition of 'decree', in proceedings pending on the date of commencement of the Amendment Act, is appealable or revisable. A Division Bench of this court- noticing difference of opinion in the decisions of Division Benches ,in Challa Ramamurthy v. P. Adinarayana' Sons, and Gopu Peddi Reddy v. Gopu Thirupathy Reddy, referred this civil revision petition to the Full Bench, which is now before us.
2. The facts giving rise to this revision in a narrow compass and may be stated thus:
The revision petitioner is the husband. He suffered a decree dated 18-2-1972 in O.S. No. 191/71 on the file of the Additional Subordinate Judge, Guntur, filed by his wife (the respondent) for recovery of her maintenance On 22-9-1975 the petitioner filed EA N6.816/75 under Order XXI Rule 2 C.P.C. alleging that pursuant to a settlement between the parties, he paid an amount of Rs.6,500/- under Ex. A-1 in full and final satisfaction of the maintenance decree and prayed to record the satisfaction. The executing court after elaborate enquiry held that no credence could be given to Ex. A-1 and dismissed the petition on August20,1979. The petitioner carried the matter in appeal to the District Court, Guntur. The learned District Judge, following the decision of ibis Court in R. Ramana v. G. Demudu, (1979) 2 APLJ (HC) 250 by his order dated November 3, 1979, returned the appeal for presentation to the Court of competent jurisdiction. The order of the executing court in the said EA dated August 20, 1979, was then assailed in this revision petition.
3. Under the scheme of the Code of Civil Procedure (for short 'C. P.C.'), in so far as it relates to providing remedy of appeal, every decree defined in See. 2(2) passed by, any court exercising original jurisdiction is appealable under See. 96 read with Order X Ll R ule-1 except (i) the decree passed with the consent of parties and (ii) the decree passed in any suit of the nature cognizable by courts of Small Causes of valuation not exceeding three thousand rupees otherwise than on a question of law; but every order defined in See. 2(4) is not appealable except the orders specified in Sec. 104 read with Order XLIII Rule 1, against which a miscellaneous appeal is provided. Sec. 100 C.P.C. provides a second appeal against the appellate decree if the High Court is satisfied that the case involves a substantial question of law except against the decree passed in an appeal filed under sub-section (4) of Sec. 96 C.P.C.; but no second appeal lies from any order passed in a miscellaneous appeal filed under See. 104 C.P.C. Against a non- appealable order or decree in a case decided by a Court, a revision lies to the High Court under See. 115 C.P.C. provided the Court is subordinate to it and if such subordinate court appears to have exercised jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The Code of Civil Procedure (Amendment) Act 104 of 1976 (for short the 'Amendment Act') imposed further conditions, namely, that the High Court shall not vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings or, if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom .it was made.
4. If the order in question satisfies the requirements of 'decree' as defined in Sec. 2(2) C.P.C., or answers the description of any of the orders specified in Order XLIII Rule 1, it would accordingly be appealable either under See. 96 or See. 104 C.P.C., as the case may be. Otherwise it can be revised provided it satisfies the conditions of Sec. 115 C.P.C. It can immediately be noticed that an order passed under Order XX I Rule 2 C.P.C. does not find a place in Rule 1 of Order XLIII, therefore, the order in question is not appealable under See. 104. In other words, no miscellaneous appeal lies against it. We are left with the question whether the order in question is a 'decree' within the meaning of the term in Sec. 2(c) C.P.C. Answer to this question depends upon the answers to the further questions :
(i) Whether orders determining tiny question within Sec. 47 C.P.C. passed after February 1, 1977, satisfy the requirement-"f the amended definition of 'decree'.
(ii)
(iii) Whether the definition of 'decree' before amendment takes in its fold the orders-passed after February 1, 1977 in proceedings involving determination of any question within Sec. 47 which were pending on that date.
(iv)
(v) What is the scope of Sec. 97 of the Amendment Act ?
(vi)
5. While dealing with these questions it may be useful to keep in mind that one of the objects of the Amendment Act is to ensure expeditious disposal of suits and proceedings without detriment to fair trial in accordance with the acknowledged principles of natural justice. Before the Amendment Act came to he passed, there had been a long felt grievance .that the procedural formalities contained in the C.P.C. were lending support to prolonging the litigation and were responsible for delays in the disposal of cases. The problems of a ,decree-holder can well be understood by the saying the trouble of the decree-holder begins from the date on which he obtains his decree. The Law Commission in reports, 27th and 54th, suggested copious amendments to the provisions of the C.P.C. The bill introduced in the Parliament in 1968 on the basis of 27th report lapsed. Based on the recommendations of Law Commission in its27th, 40th 54th and 55th Reports, the Civil Proceditre Code (Amendment) Bill, 1974 was introduced in the Lok Sabha in April, 1974. It was referred to a joint committee of both Houses of Parliament which after meticulous examination of functional operation of the provisions of the C.P.C. suggested amendments to the Bill which, inter alia, provided amendment to See. 2(2), Sec. 47 and introduced of new Section, 99-A to shorten the litigation at the stage of execution- of a decree and to avoid delay. Incorporating the suggestions of the joint committee and amendments made by Lok. Sabba, the Amendment Act was passed. It contains six chapters and 98 sections introducing many changes in the C.P.C. with a view to shorten the litigation and provide speedy justice.
Chapter 1 contains Sec. 1 dealing with short title and. commencement of the Act. Chapters 2, 3 and 4, containing Sections 2 961 deal with amendment of sections, orders &,Id form respectively of the C.P.C. Chapter 5 contains only one section,, See, 97 which 'dealt with the repeal and savings. Chapter 6 contains Sec. 98 which amends Art. 127 of the Limitation Act, 1963.
5A. Though the -petitioner filed the- revision petition against the order of the .executing court, not against the order of the appellate court returning the appeal as not being maintainable, Shri A. L. Narayana Rao, the learned counsel for the petitioner contends that notwithstanding the deletion of the words and figures 'Section 47 or', the wording of the amended Section 2(2) is wide enough to: embrace determination of any such question in the EP/EA. The syllogism runs : The order in question conclusively determines the rights of the parties with regard to the matter in controversy in the EP, the execution proceeding is a continuation of the suit, therefore, the order in question is a decree.
6. BySec.3oftheAmendmentActwhich came into force from February 1, 1977, the definition of decree in Sec. 2(2) of the C. P. C. has been amended. Before amendment, it was in the following terms:
"2. In this Act, unless there is anything . repugnant in the subject of context, -
(1) ........... ..........(2)
(3) 'decree, means the formal expression of an adjudication which, so far as 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 he either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within (See. 47 or) See. 144, but shall not include -(4)
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for defaults Explanation : A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. it may be partly preliminary and partly final;"
The effect of the amendment of the definition of the decree, is that the words and figures 'Section 47 or', bracketed in the definition extracted above, have been omitted. Consequently, an order determining any question within Sec. 47 namely, any question arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, can no longer be treated as 'decree within the amended definition of the term.
7. In support of his contention, the learned counsel placed reliance on Parshava Properties Ltd. v. A. K. Rose, . In that case, the decree-holder obtained a decree declaring that he was entitled to quarry lime stones and manufacture lime from the lower and upper Murli Hills and that the State of Bihar, its agents and servants and M/s. Dahnia Jain and Co. Ltd, were restrained from interfering with the plaintiffs possession of the lands mentioned therein so long as the tenancy rights vested in the plaintiff were not lawfully determined. In the EP, the decree was sought to be executed by detention of the judgment-debtor in civil prison. This prayer was objected to by the judgment- debtor. The executing court having overruled the objection granted leave to the decree- holder for determining the director or other principal officer of the company in civil prison in execution of the decree. This order was challenged in the civil revision petition which was referred to a Division Bench on the question of its maintainability. The Bench took the view that if an order passed by a court satisfied the essential characteristics of a decree as amended by the Amendment Act, the mere fact that the order was passed in exercise of powers under Sec. 47 of the Code would not be of any consequence. It held: (a) to satisfy the definition of decree there should be conclusive determination of .the rights of the parties with regard to all or any of the matters in controversy in the suit, (b)'suit' in Sec. 2(2) C.P.C. in its wider meaning included proceedings which were in continuation of the suit in the-eye of law, and (c) the determination 'm a proceeding such as an appeal from or execution of the decree would he a determination in the suit so as to amount to a decree within See. 2(2) C.P.C. This decision was dissented from by a Division Bench of this Court in Challa Ramamurthy's case (supra). The learned Judges of this Court did not agree with the view that the determination of a question in execution proceedings would be a determination in the suit' so as to amount to a decree within See. 2(2).C.P.C. The Division Bench decision of the Patna High Court in Parshava properties case was overruled by a Full Bench of the same Court in Namrda Devi v. Rama Nandan Singh, which referred to the said decision of ibis Court in Challa Ramamurthy's'case (supra) and agreed with the view expressed in it. That the law laid down in Parshava Properties' case (supra) is no more good law should have been a good answer to the learned counsel's contention, but the learned counsel submits that dehors the decision in Parshava Properties' case (supra), his contention that the order in question finally determines the rights of the parties in controversy in the EP which is continuation of suit, and therefore amounts to 'decree'- within Sec. 2(2) may be considered. We fail to see any force in this submission. From the definition of decree in Sec. 2(2), it is manifest that the determination must relate to the matters controversy in the suit or in the proceedings which can properly be regarded as continuation of the suit. Execution Proceedings, in our view, cannot be regarded as continuation of the suit in the sense in which the proceedings in appeal are treated. As long back as in 1898 it was observed in Venkata v. Venkataramana, ILR (1898) 22 Mad 256 that the execution proceeding though proceeding in a suit, is not a suit. As noticed above, though the proposition that the execution proceedings are continuation of the suit, found favour with the Division Bench of the Patna High Court in Parshava Properties' case (supra), the Division Bench of this court in Challa Ramamurthy's case (supra) dissented from it and took the view that the execution proceedings started when the suit ended and in the context the suit could not be given erode meaning so as to include the proceedings in execution. In our view execution proceedings are independent proceedings. they may be initiated in a suit but they are not in continuation of suit. They are taken to execute, the decree passed in the suit either at the original stage or at the appellate stage but they do not culminate in a decree. That cannot, therefore, be treated as in continuation of the suit much less as a suit. We are, therefore, in entire agreement with the view expressed by the Division Bench of this Court in Challa Ramamurthy's case (supra) on this aspect and the Division Bench of Gujarat High Court in Hansumatiben v. Ambalal Krishnalal Parikh, . With respect we agree with the view taken by the Full Bench of the Kerala High Court in Mohamad Khan v. State Bank of Travancore, AIR 1978 K& 201; the Allahabad High Court in Prarap Narain Agarwal v. Ram Narain Agarwal, (FB); and the Patna High Court in Narmada Devi's case (FB) (supra) on this point.
The learned counsel for the petitioner cited the decision of the Privy Council in Adaikappa v. Chandrasekhara, AIR 1948 PC 12 to support his contention that an order determining any question within See. 47 C.P..C. was appealable. It is obvious that the Privy Council was dealing with the definition of 'decree' as it stood prior to the amendment which included determination of any question within See. 47 C.P.C. After the amendment of Sec. 2(2) such a determination cannot be said to be a 'decree', and, therefore, the decision is of no avail. Further it was held by the privy council that the order challenged in that case was not made in the execution proceedings but was made in the suit and amounted to a 'decree' within the meaning of Sec. 2(2) C.P.C.
9. The Full Bench decision of the Madras -High Court in Desikachariar v. Ramachandra, (FB) to the effect that against an order determining any question under See. 47, an appeal would tie under See. 96 C.P.C.' is also relied upon by Shri Narayana Rao, In that case, after preliminary decree, the judgment-debtor made an application in the suit, under See. 19 of the Madras Agriculturists' Relief Act, to the Court which passed the decree praying for its amendment declaring that the debt had been wholly discharged. That application having been dismissed on the ground that the judgment- debtor was not an agriculturist, the question arose whether a revision would lie against that order. It was held that the order related to the execution, discharge or satisfaction of the decree within the meaning of See. 47 and an appeal lay under See. 96. Subba Rao, J., (as he then was), speaking for the Full Bench, laid down :
'On a combined reading of Ss. 47,2(2) and 96, Civil Procedure Code it was apparent that an appeal from an order in execution would he only if the following three conditions are complied with : (1) the order must relate to execution, discharge or satisfaction of the decree between the parties to the suit; (2) it shall conclusively determine the rights of the parties with regard to all or any of the matters in controversy; (3) such conclusive determination of the rights is with reference to the court in which such rights are decided.
An order under Sec. 20, Madras Agriculturists Relief Act, dismissing an application for stay of execution, complies with the above conditions and hence an appeal lies against such an order".
As this decision also deals with the definition of 'decree' as it stood prior to the amendment, it does not advance the contention of the learned counsel.
10. Gopu Peddi Reddi's case (supra) arose out of an order rejecting an application to record compromise in a partition suit. Under Order XLIII Rule 1 before its amendment a civil miscellaneous appeal was provided against an order recording or refusing to record a compromise, agreement or satisfaction. The question before the Division Bench was whether after the deletion of that provision, an appeal against the order refusing to record the compromise, was maintainable. The Division Bench held that the appeal was not Maintainable. Raghuvir, J., however, held that he order under appeal was a 'decree' within he meaning of clause (2) of See. 2 of C.P.C. while Seetharam Reddy, J., held that it did not amount to a 'decree' for the order could not be held to be an adjudication which conclusively determined the rights of the parties with regard to any of the matters in Controversy in the suit as it came to be passed independent of and dehors the pleadings and it could not be said to relate to execution discharge or satisfaction of the decree. The term 'order' in Sec. 2(14) C. P.C., means the normal expression of any decision of a Civil Court which is not a decree The fact that the order ref using to record the compromise was treated as an appealable order, shows that by the very definition it cannot be a 'decree'. Further the order rejecting the application to record the compromise cannot also be said to have adjudicated and determined the rights of the parties with regard to all or any of the matters in controversy in the suit. In this view of the matter, with respect, we cannot find ourselves in agreement with the opinion expressed by Raghuvir, J., that the order refusing to record the compromise amounted to a decree within the meaning of sub-section (2 of See. 2 of the C.P.C. and endorse the view taken by Seetharam Reddy, J. Relying on the judgment of Raghuvir, J., in Gopu Peddi Reddi's case (supra) the learned counsel for the petitioner submits just as after deletion of cl. (m) in Order XLIII Rule 1, the order refusing to record the compromise is treated as a decree, so also, notwithstanding the deletion of the words and figures 'Section 47 or', the order rejecting an application to record the satisfaction should be treated as a 'decree'. We regret our inability to accept this contention, first because, as pointed out above, we do not agree with view of our learned brother Raghuvir, J.1 and secondly, as noticed above, the term 'decree' means ,the formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and it has already been he Id by us, the execution proceedings cannot be treated as suit or in continuation of suit and, therefore, the order in question cannot be said to be a 'decree". for the aforesaid reasons, we hold that an order determining any question within Sec. 47, 'afortiori' the order dismissing an application to record satisfaction under Order XXI Rule 2. passed after February 1, 1977 does not satisfy the requirements of the amended definition of 'decree'.
11. Now we shall consider the second and the third questions together, viz., whether the definition of 'decree' before amendment takes in its fold the orders passed after February 1,1977, in proceedings involving determination of any question within Sec. 47 which were pending on that date and what is the scope of See. 97 of the Amendment Act ? The impact of the provisions of the Amendment Act on the right of appeal which is said to have existed on the date of coming into force of the Amendment Act, may be brought out by examining the following categories of appeal that could be filed against the determination of any such question as is referred to in See. 47 C.P.C.
(i) appeals against orders of determination made before February 1, 1977, which were pending on that date;
(ii)
(iii) appeals against orders of determination made before February 1, 1977, which were filed after that date;
(iv)
(v) appeals against orders of determination made after February 1, 1977, in proceedings which were pending on that date.
(vi)
(vii) appeals against order of determination made after February 1, 1977 in proceedings which may be initiated after that date.
(viii) At this stage it would be appropriate to set down the extent of the right of appeal which exists in a litigant. Since the date of the judgment of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369, the principle that the right of appeal is not a mere matter of procedure but is a substantive right, has been followed by a catena of decisions of different High Court in India which were referred to by the Supreme Court ,in Garikapati Veeraya v. N. Subbaiah Choudhary, AIR 1957 SC W. In the case before the Supreme Court the suit out of which the petition for special leave to appeal arose, was filed in April, 1949. On that date right of appeal was available to an aggrieved party to go up to the High Court and the Federal Court as the valuation of the suit was above Rs.10,000/-. Subsequently the Federal Court was abolished and the valuation was raised to Rs.20,000/- for appeal to the Supreme Court. Our High Court allowed the plaintiffs appeal but dismissed the application for leave to appeal to the Supreme Court on the ground of the valuation of the suit being less than Rs.20,000/-. The Supreme Court granted the leave and laid down the following principles :
(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 unity and are to be regarded as one legal proceeding.
(ii)
(iii) The right of appeal is not a mere-matter of procedure but is a substantive right.
(iv)
(v) 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.
(vi)
(vii) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant 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 dare 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.
(viii)
(ix) This vested right of appeal can be taken way only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
(x) These principles have been followed in many decisions of the High Courts and the Supreme Court. In view of the fact that these principles aye not in any way been modified we feel it unnecessary to multiply the decisions by referring to the subsequent decisions.
12. It is now well settled that right of apeal is not an inherent right like the right suit, but it is a statutory right which accrues a litigant when the lis commences though ,nay actually he exercised by him when the verse judgment is pronounced as it is reserved to him till the disposal of the lis. It not a mere matter of procedure but is a substantive right. The right 'of appeal is governed by the law in force as on the date of the institution of the suit or proceedings or the filing of E.P./E.A., or objections as the case may be, not by the law that prevails at the date of its decisions or at the date of filing of the appeal. The vested right of appeal can be taken away either expressly or by necessary intendment by any subsequent legislation. Where the E.A./E.P. was filed before the amendment of the definition of 'decree' in regard to determination of any question within S. 47 the parties had a vested right of appeal in as much as the order determining any such question was a 'decree' under the unamended definition of the term which was applicable on the date of initiating the proceedings, which inhered in the parties to the lis. Having regard to the acquisition or accrual of a vested right to appeal and its existence as on the date of the commencement of the Amendment Act the scope of the present enquiry would be to what extent the vested right of appeal is taken away by amendment of S. 2(2) read with S. 97 of the Amendment Act, keeping in mind the golden principle of harmonious construction of different provisions of the Statute.
13. Before proceeding further it may be apposite to note the observations of the Supreme Court in Garikapati's case (supra). in construing the articles of the Constitution courts must bear in mind a cardinal rule of construction that statutes should be interpreted, if possible, so as to respect vested right. The golden rule of construction is that in the absence of anything in-the enactment to show that it is to have. retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed."
What is said about the interpretation of the Constitution is equally applicable to the interpretation of a statute.
14. We shall now take up for consideration, the categories of appeal mentioned above. The first category of appeal deals with orders determining any question within S. 47 which were admittedly 'decree' within S. 2(2) C.P.C. as it stood before the amendment. There is no controversy about the question that appeals filed against such decrees in exercise of vested right of appeal, which 'were pending on the date of commencement of Amendment Act, are saved by S. 97(2)(a) of the said Act. So also it is not in dispute that appeals falling within the fourth category, that is, appeals against the determination of any question within S.47 in proceedings initiated after , the commencement of the Amendment Act, cannot properly fall within the saying cl. (a) of sub-sec. (2) of S. 97 as no right of appeal is available to a litigant at the commencement of the lis in view of the amendment of definition of 'decree' having regard to the date of filing of E.P./E.A.
15. In so far as the, appeals falling under the second category are concerned, that is, where an order determining the question within S. 47 C.P.C. had been passed by the Court before coining into force of the Amendment Act, but the vested right of appeal was exercised subsequent to the Act, there is preponderance of opinion that the words 'any appeal' in Cl. (a) of sub-see. (2) of S. 97 include appeals that may be filed from orders which had determined any question within S. 47, C.P.C. before coming into force of the Amendment Act. This view is taken by the Division Bench of this court in Challa Ramamurthy's case, (supra) which is supported by the view taken by the Full Bench of Kerala High Court in Mohammad Khan's case (supra); Allahabad High Court in Pratap Narain Agarwal's case (FB) (supra). The Full Bench of the Patna High Court in Narmada Devi's case (supra) referred to the judgment of the Division Bench of this Court in the said case and agreed with it. We are in agreement with the decision of the Division Bench of this Court in Chalia Ramamurthy's case on this aspect and with respect we agree with the view expressed by the Full Benches of High Court of Kerala, Allahabad and Patna in so far as they lay down that the appeals filed against determination on any question within S. 47 C.P.C. after the Amendment Act came into forte, are saved by S.97(2)(a) provided orders appealed against were passed before Feb. 1, 1977. We have no doubt that such appeals are saved by S. 97(2)(a) in as much as. before the coming into force of 'S. 3 of Amendment Act omiting 'S. 47 or' from definition of 'decree', there existed a Yes right of appeal against such orders which were admittedly within the fold of unamended definition of 'decree'.
16. The controversy which remains to resolved is with reference to the appeals the third category, namely, appeals against orders of determination made after Feb. 1977 in proceedings involving any question within S. 47 which were pending on that date. As observed above in such cases right appeal vests in the litigants as the proceedings for determining questions within S. 47, C.P.1 were intitiated before the commencement the Amendment Act. What, if any, would then be the effect ion the orders passed such proceedings after the enforcement in the Amendment Act?
17. To resolve this controversy we bar to examine the scope of S. 97 of the Amendment Act which deals with repeal and savings. The cleavage in the language of thi section gave rise to difference in judicial opinion with regard to this category of appeal As it requires a close examination, it may be usefully extracted here :
'97.(1) Any amendment made or an, provisions inserted in the Principal Act by State Legislature or a High Court before the commencement of this Act shall, except ins( far as such amendment or provision in consistent with the provisions of the Principal Act as amended by this Act, stand repealed.
(5) 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 S. 6 of the General Clauses Act, 1897 (10 of 1897).(6)
(a) the amendment made to clause (2) of S. 2 of the Principal Act by S. 3 of this Act shall not affect any a peal against the determination of any such question as is referred to in S.7 and every such appeal shall be dealt with as if the said S. 3 had not come into force;
(b)
(c) to (zb) xxxx xxxx xxxx xxxx.
(d) (7) Save as otherwise provided in sub- sec. (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 initiated or filed after such commencement, notwithstanding the fact that the right, or cause of actior4 in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement."(8)
Before embarking upon the interpretation of this section it may be relevant to note S.6 of the General Clauses Act, which in so far as it is relevant for our purpose, reads :
"6. Where this Act or any Central AC, or regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not.
..... ..... .... .... ....
(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(f) .... .... .... .... ..... .....
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid."
(f) A combined reading of Cls. (c) and (e) of S. 6 makes it clear that the rights acquired or accrued and the remedy in respect of any such right under the repealed Act will not not be affected by the repeal unless a contrary intention appears in the repealing Act.
18. In State of Punjab v. Mohar Singh Pratap Singh, AIR 1955 SC 84 the Supreme Court while considering the scope of operation of S. 6 of General Clauses Act held :
'Whenever there is a repeal of enactment the consequences laid down in S. 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of inquiry would be, not whether the new Act alive old rights and liabilities but whether it manifests an intention to destroy them.'
19. Sub-section (1) is not relevant to the issue on hand. It provides that any amendment or any provisions inserted in the C.P.C. by a State Legislature or a High court before the commencement of the Amendment Act shall, except in so far as such amendment or provision is consistent with the provisions of the C.P.C. as amended by this Act, stand repealed.
20. Sub-section (2) is a saying clause. To appreciate the real import of sub- section (2)(a), we should not dissociate the prefatory language used in sub-sec. 2 from. the wording used in Cl. (a). The former should be read in conjunction with the latter. Thus arranged they read as follows :
"Notwithstanding that the provisions of this Act have come into force or the repeal under sub-see. (1) has taken effect, and without prejudice to the generality of the provisions of S. 6 of the General Clauses Act, 1897 (10 of 1897), the amendment made to Cl. (2) of S. 2 of the Principal Act by S. 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 S. 3 had not come into force."
On a plain reading of the provision extracted above, it is manifest that this sub-section opens with a non obstante clause and thus renders the application of the provisions of the Amendment Act inoperative as if the provisions of the Amendment Act have not come into force., preserves generality of the provisions of S. 6 of the General Clauses Act and thus protects the vested right of appeal., saves 28 proceedings enumerated in clauses (a)to (zb) of that sub-section out of large number of amendment introduced by the Amendment Act.
21. A careful reading of sub-sec. (3) of S. 97 suggests that the provisions of the C.P.C. as amended by the Amendment Act shall apply to every suit, proceedings, appeal or application pending at, the commencement of the Amendment Act or instituted or filed matter such commencement notwithstanding the fact that the right or cause of action in pursuance of which suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement except in so far as they are saved or otherwise provided in sub-sec.(2) It, therefore, follows that not withstanding the acquisition of right of appeal to a litigant on account of filing of E.P./EA. before the commencement of the Amendment Act, the provisions of CPC as amended including amended definition of decree in S. 2(2) will apply to the pending appeals proceedings etc. thereby affecting the appealabiliity of the orders determining any question within S. 47 which are jettisoned from the ambit of decree and rendering them not appealable unless sub-see. (2) of S. 97 saves such appeals in which case the operation of sub-see. (3) of that section, is excluded.
22. At the first glance it appears that there is some conflict between sub-secs. (2) and (3) of S. 97, but an analytical examination of the said sub-sections will dispel that impression. The opening words of sub-see. (3) clearly exclude the consequences of amendments in different situations mentioned in sub-sec. (2), and provide that the provisions of the C. P. C. as amended by the Amendment Act shall apply to every suit, proceeding, appeal or application either pending at or filed after the commencement of the Amendment Act. It is significant to note that even if any suit, proceeding, appeal or application instituted or filed after the commencement of the Amendment Act, is pursuant to any right accrued or acquired before such commencement still the same will be governed by the provisions of the amended C.P.C. This no doubt shows contrary intention. But this contrary intention cannot be imported in sub- see. (2) first because sub-sec. (3) itself provides ,save as otherwise provided in sub-sec. (2)' and secondly because sub-see. (2) reaffirm the preservation of the generality of S. 6 of the General Clauses Act. In our view to cut down the amplitude or sweep of sub-see. (2) with reference to contrary intention contained in later part of sub-sec.(3), would amount to opening words of sub-sec. (3)'save as otherwise provided in sub-sec. (2)' redundant and nugatory and the prefatory wording of sub-see. (2) 'notwithstanding ......... General Clauses Act' otiose. The areas of operation of sub-secs. (2) and (3) are clearly demarcated. Each sub-section has to be effective and operative within that area without entrenching upon the area meant for the other. On harmonious constructions of sub-sees. (2) and (3) of S. 97, what clearly emerges is that out of vast field of amendments introduced by the Amendment Act certain amendments enumerated in cls. (a) to (zb)of sub-sec. (2) have been carved out and kept out of reach of sub-sec. (3) which gives retrospective operation to the remaining amendments. In our view the prefatory clauses in the sub-section, the one beginning with a non obstante clause and rendering the Provisions of the Amendment Act inoperative, and the other beginning with 'without Prejudice' and preserving the sweep of generality of the provisions of S.6 of the General Clauses Act and the wording in Cl. (a) of sub-sec. (2) that the amendment made to Cl. (2) of S. 2, the definition of decree, by S.3 of the Amendment Act shall not affect ,any appeal against the determination of any such question as is referred to in 5. 47 and every such appeal shall be dealt with as if the definition remains unamended, read with sub- sec. (3) of S. 97 of the Amendment Act give no scope for thinking that the Parliament intended to destroy the vested right of appeal against the determination of any such question as is referred to in S. 47 on the contrary the intention to protect and save the existing vested rights is manifest.
23. If the Parliament intended to destroy or take away, the vested right of appeal and limit the operation of the saving clause only to the appeals already filed and pending on the date of the commencement of the Amendment Act, it would have said so by stating 'pending appeals' as it did in many of the succeeding cls. (b) to (zb). Therefore it is clear that appeals other than the pending appeals are also saved by cl. (a). That 'any appeal' includes future appeals, as noticed above, is no longer in controversy. The controversy is about limiting the scope of 'future appeals' to appeals against determination already made, whether or not the appeals were actually filed before the commencement of the Amendment Act. We see no justification in limiting the scope of the clause to such appeals alone. Had the Parliament intended so to limit the scope of any appeal' to appeals failing in the second category it would have specified in cl. (a) that any appeal against determination already made as it did in cl. (d) by specifying the proceeding 'in which report has been made' or in Cl. (g) By specifying attachment made before the commencement' or in cl. (i) by specifying any decree passed or execution of such decree' or in cl. (r) by specifying 'order of abatement made before the commencement'.
24. It may probably present some difficulty if the words 'any appeal' in Cl. (a) are divorced from the rest of the clause 'against the determination ......... in S. 47'and interpreted in isolation. But if the clause any appeal against the determination of any such question as is referred to in S. 47'is taken as a whole, the key word appears to be determination and as there are also no words ,qualifying the determination', as 'already made' or made before the commencements consequently appeals against determination made both before and after the commencement of the Amendment Act, would be saved. We may, however, hasten to add that the same reasoning cannot be extended to determination in proceedings initiated after the commencement of the Amendment Act, for the reasons already mentioned above.
25. It may be pointed out that cl. (a) of sub-see. (2) has two limbs. Having regard 101 the wide language in which the first limb of c L (a) namely, 'the amendment made in cl. (2) of 5. 2of the Principal Act by S. 3of this act shall not :affect any appeal against the determination of any such question as referred to in S. 47, is couched, we are of the opinion that appeals against determination of any such question as is referred to in S. 47 in pending proceedings, are also saved. otherwise the first limb will become otiose because the said amendment would not affect the appeals falling under the first and the second category as the orders already passes before the amendment had become 'decree against which appeals did lie and the second limb 'every such appeals shall be dealtwith as if the said S.'3 had not come into force which gives directive to the Courts not to take note of S. 3 of the Amendment Act, while disposing of such appeals, would have been sufficient to save those categories of appeals. On a close examination of cls. (a) to (zb) of sub-sec. (2) it can also be noticed that the said clauses deal with and save the suits, appeals, proceedings, injunction, attachment, etc., as the case may be, in so far as they are affected by the amendment Act. By amendment of definition of 'decree' in S. 2(2), proceedings or applications including one filed under 0. XXI, R. 2, are not any way affected. The orders that may be passed after Feb. 1, 1977 in such proceedings or on applications pending on that date in so far as they determine any question within S. 47, will be outside the amended definition of 'decree' and as such no appeal can lie against such orders. Therefore to protect and preserve vested right of appeal clause (a) deals with and saves such appeals by providing any appeal against the determination of any such question as is referred to in S. 47, not any proceedings or application as such. Questions, as are referred to in S. 47 may arise in many types of proceedings in execution of a decree. It is neither practicable nor expedient to specify all such proceedings or applications in a saying clause. The object of the amendment is to take away the right of appeal against determination of any question as is referred to in S. 47 and that is achieved by amending the definition of decree in S. 2(2) C.P.C. while the intendment to save the vested right of appeal is expressed in sub-sec. (2)(a) of S. 97. For the aforesaid reasons we are clear in our mind that the Parliament did not intend to destroy the vested right of appeal in a litigant on the date of commencement of the Amendment Act.
26. We shall now refer to the cases which have dealt with this question. The Full Bench of Kerala High Court in Mohammad Khan's case (supra), on the ground that determination under 5. 47 was deleted from the definition of 'decree' consequently such determination did not fall within the definition of decree, held that such an order was not appealable. In that case in the execution of a money decree by the respondent Bank, the Judgment Debtor. claiming to be an agriculturist filed an application under Kerala Agriculturists Debt Relief Act, seeking amendment of the decree. The executing court held that the question of scaling down did not arise as the amount in question was not 'debt' within the meaning of the Act. It was the maintainability of appeal against this order that was before the Full Bench. The Full Bench did not consider the effect of sub-secs. (2) and (3) of 5. 97 of the Amendment Act, therefore, we cannot place any reliance on this judgment. In Pratap Narain Agarwal's case (supra) the Full Bench of Allahabad High Court was dealing with an appeal filed against an order dismissing an objection of executability of the compromise decree. The Full Bench took the view that from the manner in which the Amendment Act was made, the irresistible conclusion was that the intention of the legislature was to affect the vested right of appeal retrospectively and that even otherwise the necessary implication of the amendment appeared to give retrospective operation to the amendment. It held that the legislature intended to cover two types of cases, viz., the pending appeals and the appeals against the orders which were already decided before the date of enforcement of the'. Amendment Act. In rejecting the contention based on S. 6 of the General Clauses Act, the Full Bench held that a reading of sub-section (2) of S. 97 clearly showed that sub-sec. (2) supersedes the provisions of S. 6 of the General Clauses Act to the extent stated in clause (a)to(zb) as in its opinion the contrary intention was provided in cls. (a) to (zb).
27. The Division Bench of our High Court in Challa Ramamurthy's case (supra) was dealing with a batch of Civil Revision Petitions which arose rout of execution proceedings in which the judgment- debtors had taken the plea that they were small farmers entitled to the benefit of Act 7 of 1977. The question of maintainability of appeal against order determining any question within S. 47 C.P.C. after commencement Of the Amendment Act, fell for consideration of the Court. The Bench held :
'The purpose with which the definition of decree in S. 2(2) is amended by Act 104 of 1976, however clearly indicates that the intention was to affect the vested rights. As such in cases where execution is started prior to the amendment and order is passed after amendment, no appeal lies as such order is not decree within the meaning of amended su6-sec. (2) of S. 2. Orders under S. 47 prior to the amendment are decrees. S. 96 is not amended and S.96 says that an appeal shall he from every decree. Therefore, where a decree had already come into existence, the right of appeal is not affected, even though that right had not been exercised before the Amendment Act came into force. 'But where a decree had not come into existence and by virtue of the amending Act the decision is not a decree, but only an order, no appeal lies as the right of appeal had not accrued. Such appeals are not saved by S. 97(2)(a) of the Amending Act. The appeals are also not saved by S. 6 of the General Clauses Act because sub-sec. (2) of S. 97 prevails over anything contained to the contrary in S. 6 of the General Clauses Act."
The Full Bench of Patna High Court in Narmada Devi's case (supra) took the view that the changes brought about by the Amendment Act viz., the amendment in S. 2(2) and S. 47 as also the insertion of s. 99-A indicated that the right of appeal was being taken away with retrospective operation and that if the right of appeal was taken to have been kept intact it would tend to frustrate the very object of the amendment in this context. In that case the dispute arose in execution of a compromise decree in a partition suit. When the decree-holder brought to sale the lands of judgment-debtor in execution of the decree, the judgment- debtor fl 'led a petition claiming that the amount due under the decree except some marginal amount, had been paid. The execution court dismissed the petition. Maintainability of the appeal against this order was before the Full Bench.
28. We may now advert to the reasons for the view taken in the said decisions that S.97(2)(a) did not save appeals against determination of any question within S. 47 C.P.C. in proceeding pending on Feb. 1, 1977 as the intendment of the Legislature was to take away the vested right of appeal against such determination. We have already pointed out that cls. (a) to (zb) of sub-see. (2) of S. 97 do not in any way arrest the operation of S. 6 of the General Clauses Act. The legislatures has designedly used the words 'without prejudice to the generality of the provisions of S. 6 of the General Clauses Act" now notwithstanding the generality of the provisions ............... therefore, the intention of the legislature is not only to preserve the effect of S. 6 of the General Clauses Act. no to cut it down with reference to clauses (a) to (zb) of the said sub-section but also to protect the vested right of appeal. We also feel that having taken the view that 'any appear,' in cl. (a) of sub-see. (2) includes not only the pending appeals but also future appeals. There is no justification in restricting the 'future appeals' to only such appeals filed against the orders that were passed before the commencement of the Amendment Act and excluding appeals against order passed after the coming into force of the Amendment Act though in both the cases proceedings were initiated before the commencement of the Act. In our view date of passing of an order is an uncertain element. It depends on number of factors, e.g., service of notice and appearance of parties, convenience of the counsel and the court, pendency of cases in different courts, even cases filed in the same court on the same day will not normally be decided on one day, etc. Therefore it has no rational bearing upon taking away the vested right of appeal nor does it distinguish one case from another for that purpose. Can it be said that the vested right of appeal of the parties to a lis is left, by the legislature, to depend on an uncertain event of a mere chance of the case being decided either on 31-1-1977 or 1-2-1977 or any day thereafter by the court, so as to preserve the vested right of appeal in the former case and destroy in the later case to the prejudice of the parties for the inability of the Court to decide the case before February 1, 1977? We are unable to answer this question in affirmative for we cannot impute such an intention to the Parliament. We are, therefore, inclined to hold that cls.(a) to (zb) do not in any way clip the sweep of the language of S. 6 of the General Clauses Act, nor do they supersede that section. For these reasons we find it, difficult to conclude that the Amendment Act manifests an intention to destroy the vested right of appeal.
29. In our view interpretation of S. 97(2)(a) to include appeals against determination of any such question as is referred to in S. 47 in proceedings pending as on the date of the commencement of the Amendment Act, thus upholding preservation ,of the vested right of appeal does not frustrate the object of the amendment of the definition of 'decree' by deleting 'S. 47' in S. 2(2). On a careful examination of the provisions of the Amendment Act, we find he object of amendment of S. 2(2) is to take away the right of appeal, not the vested right of appeal. This will undoubtedly be achieved as in all cases which may be filed after the amendment, no right of appeal would be available to a litigant under the amended provisions of C.P.C. as a litigant's right of appeal is governed by the law as it exists on the date of institution of the proceedings. In Sadar Ali v. Dalimuddin, AIR 1928 Cal 640 (FB) while the second appeal in Calcutta High Court was pending before the learned single Judge, Cl. 15 of the Letters Patent was amended with a view to reduce the number of Letters Patent Appeals from the judgments of single Judges which had assumed alarming proportions in every High Court. The learned single Judge while dismissing the second appeal declined to grant leave under Cl. 15 of the amended Letters Patent. However, the appellant filed the appeal and argued that under the unamended rule he was entitled to maintain the appeal and that the amendment did not take away the vested right in him. The Special Bench consisting of five judges of the Calcutta High Court held that the amendment made by the Letters Patent, was made with no other view than to obviate unreasonable, or unreasonably prolonged litigation but in view of the decision of the Privy Council in Colonial Sugar Refining Company's case (1905 AC 369) (supra), felt bound to answer the question whether it is any necessary part of the intendment of the amended Letters Patent that they should operate upon appeals arising out of suits instituted before the date of amendment when such appeals were heard after that date, in negative. It held :
"The long postponment of a desirable reform may have been thought wise, and it would hardly be correct for a court of law to proceed merely upon its own opinion as to the degree of respect to which the right of a third appeal is entitled. In this aspect the present case may reasonably be thought less strong than the case of Bourke v. Nutt, (1894) 1 QB 725 (M1) where a similar argument was ultimately negatived. If bankrupts may continue to become members of school boards, I cannot say that litigants may not continue to have a third appeal unless it otherwise appears that this construction of the Letters Patent is not reasonably possible. Far be it from me to distinguish between such forms of excess or to divide such claims to toleration'.
30. In re, Vasudeva Samiar's case AIR 1929 Mad 381, the Madras High Court was also concerned with the effect of the amended Cl. 15 of the Letters Patent on a preexisting right of appeal. After the amendment came into force the second appeal was disposed off. A letter patent appeal was filed without a declaration by the learned single Judge who disposed of the second appeal that it was a fit case for appeal. The maintainability of the Letters Patent Appeal was referred to the Special Bench consisting of five Judges. It was argued that the amendment was retrospective, otherwise, the result would be that Cl. 15 of the amended letters Patent would remain a dead letters for many years to come. The Special Bench repelled that contention in the following words.
The result is regrettable, because it makes the amended Letters Patent which were doubtless brought into being to relieve the heavy burden of Second Appeals, which in this court have now reached the starting figure of 5,000 cases, unable to effect any substantial relief to us for five years.
..... ..... .....
We must therefore hold, however, reluctantly, that the institution of the suit carries with it the implication that all appeals then in force are reserved to it through the rest of its career, unless the legislation has either abolished the court to which an appeal then lay or bag expressly or by necessary intendment given the Act a retrospective effect. We agree with the Calcutta High Court that the words of the amended Letters Patent do not admit of such an interpretation."
It may not be necessary to multiply the decisions. Suffice it to say that these two decisions were referred to with approval by the Supreme Court in Garikpati's case (supra). The facts of Garikapati's case have already been narrated above. The question before the Supreme Court was whether special leave petition under Art. 133 was maintainable. On the date of institution of the suit of valuation of more than Rs.10,000/-, appeal to the Federal Court was maintainable as a matter of right. Subsequently Federal Court was abolished and the valuation of appeal to the Supreme Court was raised to Rs.20,000/- during the pendency of the case. It cannot be disputed that raising the valuation to Rs.20,000/- was also with a view to limit the institutions of appeals in the Supreme Court. But, the Supreme Court held that the right of appeal is a vested right, negatived the contention that Art. 133 impliedly took away that vested right and laid down the principles which have been extracted in this judgment.
31. We cannot also subscribe other view that deletion of the word 'appeal' in S. 99-A as contained in the Bill and its absence in the Act, supports taking away of the vested right of appeal because it is conceded that notwithstanding the amendment of definition of 'decree' appeals pending on the date of commencement of the Amendment Act and appeals against orders determining any Question within S. 47, passed before the enforcement of the Amendment are saved by S. 97(2)(a) of the Amendment Act. When such appeals can properly be entertained in spite of absence of the word 'appeal 'in S. 99- A, it is difficult to understand how the same factor can be an indicator against maintainability of appeals from orders passed later the commencement of the Amendment Act in proceedings involving determination of any question within S. 47 which were pending on the date of commencement.
32. By S.20 the Amendment Act, sub- sec. (2) of S. 47 is omitted. That subsection enabled the Court, subject to any objection as to limitation or jurisdiction, to treat a, proceeding under S. 47 as a suit or a suit as a proceeding. In the Absence of such a power the court cannot convert a suit into proceeding or a proceeding into suit. This, in our view does not affect in the least t he vested right of appeal.
32A. We are, therefore, inclined to hold that the amendment of S. 2(2) and S. 47 and addition of S. 99-A of C.P.C. read with sub- ss. (2) and (3) of S. 97 do not indicate intention to destroy the vested right of appeal which existed in a litigant on the date ox commencement of Amendment Act.
33. For the aforesaid reasons we hold that appeals failing under the third category, namely, appeals filed from orders passed after the commencement of the Amendment Act, in cases which were pending on the date of Amendment Act, are saved by S. 97(2)(a). In this view of the matter we overruled the judgment of the learned single Judge in Rogali Ramana v. Gogade Demudu, (1979 2 APLJ (HC) 250) (supra) and the Division Bench in Challa Ramamurthy v. P. Adinarayana sons, (supra) in so far as they lay down that appeals failing under the third category mentioned above, are not saved by Cl. (a) of sub-sec. (2) of S. 97. With respect to the learned Judges we are unable to agree with the view taken by the Kerala High Court; Allahabad High Court and Patna High Court on this point. For the same reasons we agree with the view taken by the Division Bench of the Madhya Pradesh High Court in Chuluram v. Bhagatram ; Orissa High Court in Nanda Kishore Moharana v. Mahabir Prasad Lath, AIR 1978 Orissa 129 and Delhi High Court in Syndicate Bank, New Delhi v. M/s. Rallies India Ltd., New Delhi, .
33A. Inasmuch as an appeal lies against the impugned order, this Civil Revision Petition is not maintainable. It is, therefore, dismissed. In the circumstances we make no orders as to costs.
Jagannadra Rao, J.
34. I am in agreement with my learned brother Quadri, J. on question No. 1 but am, with respect, unable to agree fully on question Nos. 2 and 3 with the views expressed by him as well as the ultimate conclusion. In my view, so far as category (iii) type of cases, namely, where, 'appeal against orders of determination made after Feb. 1, 1977 in proceedings which are pending on that date are concerned no appeals he and that the only remedy is by always of revision under S. 115, C.P.C.
35. The effect of the repeal of certain provisions of the C.P.C. by the provisions of the 1976 Act is set out by Parliament in s. 97 of the Amending Act and it is the rather difficult interpretation of the sub-clauses of S. 97 that falls for consideration.
36. Repealing statutes are generally not all couched in the same language and the Legislature employs different words in each case to express the particular intention. General principles which are applicable to all Cases of repeals are, however, stated in S. 6 of the General Clauses Act, and those principles are applicable unless a 'contrary intention' appears in the Repealing statute and this is an in built restriction in S. 6 itself.
37. If the provisions of S. 6 apply with full vigour to the present case and the repealing law does not contain a 'contrary intention', there can be. no doubt that the repeal 'shall not affect any right, privilege. obligation or liability acquired or incurred under the previous law' (S. 6(c)) and 'shall not also, affect any investigation, legal proceeding or remedy" (S. 6(e)) in respect of the matters mentioned in S. 6(c). In other words, in respect of a cause of action arising before 1-2-1977 and in respect of all rights attached to any application filed under O. 21, R. 2, C.P.C. before 1-2-1977, all previous remedies should normally continue to attach, notwithstanding the fact that the application was disposed of after 1-2-1977. But the question is whether any 'contrary intention' appears in the provisions of S. 97 of the repealing law?
38. Section 97 of the 1976 Act, in so far as it is material for this case, reads as follows:
'S. 97(1). Any amendment made or any provisions 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 repeat under sub-sec. (1) has taken effect, and without prejudice to the generality of the provisions of s. 6 of the General Clauses Act, 1897 (10 of 1897).
(a) the amendment made to clause (2) of S. 2 of the Principal Act by S. 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 S. 3 had not come into force.,
(b)
(b) to (zb) xxx xxx xxx xxx (3) Save as otherwise provided in sub- sec. (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 initiated 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."
39. Analysing S. 97, it will be seen that it contains three sub-clauses. The first sub. clause all facts High Court amendments made before the 1976 amendment and their repeal, unless such previous amendments are consistent with the Code as now amended. So far as sub-clause (2) is concerned, It deals with various matters in clauses (a) to (zb) which are saved, in spite of the repeal. There is also a reference to 5. 6 of the General Clauses Act, 1897 in sub-clause (2); sub- clause (3) deals with the effect of the repeal. Do these provisions in S. 97(3) disclosed ,contrary intention anyway derogating from the preservation of accrued rights and their remedies as provided in S. 6 of the General Clauses Act? What does S. 97(2) imply in saying "without prejudice to the generality of the provisions of S. 6 of the General Clauses Act"? These are the basic questions to be decided by us. I shall first deal with the statutory interpretation and then support the same with rulings of the Supreme Court which according to me, are nearer to the point.
40. It is, at the outset necessary, to refer to the various sub-clauses in 5. 6 of the General Clauses Act, 1897.
'S. 6. Effect of repeal : - 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 appears, the repeal shall not-
(a) revive anything not in force existing al the time at which the repeal takes effect; or
(b)
(c) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(d)
(c) affect any right, privilege, obligation or liability acquired or incurred under any enactment so repealed; or
(e) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed., or
(f)
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigatior4 legal proceeding or remedy maybe instituted, or continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
41. Reading these clauses and comparing the same with sub-clause (3) of S. 97, it will be seen that by virtue of S. 97(3), the Act as amended 'shall apply, to every suit, proceeding, or appeal or application, pending at the commencement of the Act (or initiated or f led after the commencement of the Act), 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."
In other words, S. 97(3) clearly derogates from the full effect of the provisions in S.6(c) and (c) of the General Clauses Act which seek to preserve previous rights, privileges, obligations or liabilities acquired or incurred and the remedies previously available in that regard. To t-hat extent S. 97(3) conflicts with S.97(2) read with the General Clauses Act.
42. If thus, there is a conflict between S. 97(3) of the Amending Act of 1976 and ; S.6 of the General Clauses Act, 1897, the conflict can be resolved only by resort to the principal of harmonious construction of statutes. Otherwise, if we proceed to give overriding effect to the words 'without prejudice to the generality of the provisions of S. 6 of the General Clauses Act, 1897', and thereby to each and every one of the sub. clauses (a) to (e) of S. 6, then the last part of S. 97(3) extracted above win be rendered wholly nugatory. If both S. 97(3) and S.6 have to Play their respective roles, the principle of harmonious construction of statutes alone will have to be applied and S. 6(c) and 6(c), to the extent abrogated-'by S. 97(3) have to be treated,, as no longer applicable. Thus in view of S. 97(3), S. 6(a), (b), (d) shall alone fully continue in force while S. 6(c) and (c) can continue only partially, to the extent, they are not covered by S. 97(3).
43. The words in S. 9.7(2), "without prejudice to the generality of the provisions of S. 6 of the General Clauses Act, 1897", in my view, mean that these provisions apply in general as stated in S. 97(2) unless of course, some particular clauses cease to apply because if S. 97(3).-The words 'general application' are significant and indicate that clauses (a) to e) of S. 6 generally apply unless there is something specific to the contrary.
44. That being the result of harmonious construction of S. 97(3) and S. 97(2) read with S. 6 of the General Clauses Act, 1897, it is, in my view, clear that because of S. 97(3), "every suit, proceeding, appeal or application pending at the commencement decided only as per the amended code,- notwithstanding the preservatory character of S. 6(c) and (e) the General Clauses Act, i.e., notwithstanding the fact that the right or cause of action , in pursuance of which the suit, proceeding or appeal or application was "instituted or filed" (before 1-2-1977), "had been acquired or had accrued" before such commencement. In other words, the application under Order 21, Rule 2 pending on 1-2-1977 shall have to be dealt with as per amended Code, notwithsta that the right to file the same accrued earlier to 1-2- 1977 and notwithstanding that all the other concomitant rights annexed to such an application, were acquired before 1-2-1977.
45. That the right of appeal is a vested right accruing to a person with reference to the law in force on the date of the filing of the application is a matter too well settled today and cannot admit of any doubt. But, this general principal is subject to the well- recognised exception set out in principle (v) in Garikapati v. Subbaiah Choudary, .
"(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or , by necessary implication."
Thus, while giving effect to the principles laid down by the Supreme Court in Girikapati's case (1) as to the right of appeal being vested in a party with reference to the date of filing of the application, it is in my opinion,, equally necessary to apply the exception mentioned by the Supreme Court in principle (v) mentioned in the very case. Otherwise, it will lead to a serious curtailment of legislative, powers. In fact, S. 6 of the General Clauses Act itself agrees to yield (expressly) to a 'contrary intention' contained in the repealing law.
46. In the result, the remedy of vested of appeal preserved by S. 6(c) and S. 6(e) a clearly a expressly set at nought by .5. 97(3) in so far as it says that pending applications shall be decided only as per the amended law notwithstanding that the, remedy' of appeal was acquired or had accrued prior to 1-2-1977. If the right of appeal been expressly or impliedly taken away by the amending Act in respect of orders passed under O. 21, R. 2, there will now be no right of appeal even if the application was filed before 1-2-1977 and even if prior to 1-2- 1977, there was a right of appeal. s. 97(3) removes the remedy of appeal as contained in 5. 6(c) and (e), to the extent excluded by S. 97(3).
47. Nor can the non-obstante clause in or S. 97(2) help the preservation of the previous right of appeal. Firstly, S. 97(2) preserves only the application of S. 6 of the General Clauses Act, 1897 but not any 'specific' exceptions, if any, laid down in the latter part of S.97(3). Secondly, even if S.97(2) and S. 6 are given overriding effect, it must be deemed that this is clearly subject to cases where a ,contrary intention' is contained in the repealing law. This is because S. 6 itself contains such an in built express restriction. So the non obstante clause in Clause (2) of S.97 is devoid of its overriding power to the extent that any provisions in S. 97(3) show a contrary intention".
48. The words 'save as other wise provided in sub-sec. (2) in S. 97(3) take in only the appeals or applications etc. referred to and saved in clauses (a) to (zb) enumerated in S. 97(2). But those words do not give any overriding status to S. 6 of the General Clauses Act, 1897 referred to in S. 97(2) inasmuch as S. 6 itself yields again to any 'contrary intention' in the repealing law. Even if the general application of S. 6 is saved, it suffers from its own inherent weakness of being subjugated by a 'contrary intention' in the repealing law. Therefore, the opening words of S. 97(2) are of no avail.
49. So far as legal position as decided by the Supreme Court in regard to repeals and savings is concerned, it is sufficient to refer to the three leading cases on the subject. The first of these cases is State of Punjab v. Mohar Singh, AIR 1955 SC 84. Therein B. K. Mukherjea, J. observed that under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it totally except for the purpose of those actions, which were commenced prosecuted and concluded while it was in existing law. A repeal therefore, without any saving clause was treated as destroying any proceeding even if it was pending at the time when the repealing law was enacted, even though no final judgment was given. To obviate such results, a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the previous law. Later on, with a view to dispense with the necessity of having to insert a saying clause in every repealing statute, S. 38(2) was inserted in the Interpretation Act of 1889 which provided that a repeal, unless a contrary -Intention appeared, did not affect the previous operation of the repealed enactment or anything duly done or suffered under it and that any investigation, legal proceeding or remedy might be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the repealing Act had not been passed. Section 6 of the General Clauses Act was on the same lines as Section 38(2) of the Interpretation Act of England. Thereafter, B. K. Mukherjea, J. observed as follows (at p. 88) :
"Whenever there is a repeal of an enactment, the consequences laid down in S. 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is valid by fresh legislation on the same subject, we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.
The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifest an intention to destroy them. We cannot therefore subscribe to the broad proposition that S. 6 of the General Clauses Act is ruled out when there is a repeal of an enactment followed by a fresh legislation. S. 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saying clause is by itself not material."
The above 'principle laid down by the Supreme Court have been reiterated time and again in several cases. Whether a different intention to the contrary, derogating from the provisions of S. 6 of the General Clauses Act or derogating from the continuance of the previous law, exists or not has to be judged by reference to the provisions of the new law. In what cases such a contrary intention can be said to have been expressed will, therefore depend on the provisions of the new law.
50. As to when such a contrary intention can be said to have been expressed was first pointed out in the next leading case in Indira Sohanlal v. Custodian of Evacuee Property, . After referring to the above passage from Mohar Singh's case (AIR 1955 SC 84) Jagannadhadas, J. referred to S. 58(3) of the Administration of Evacuee Property Act (Act 31 of 1950) which repealed certain provisions of the East Punjab Evacuee's (Administration of Property) Act of 1947.
51. Under Section 55 of Ordinance 27 (of 1949 the provisions of the Administration of Evacuee Property Ordinance 12 of 1949 were repealed. Later Ordinance 27 of 1949 was also repealed by Central Act 31 of 1950'This Act was amended by an Ordinance and later by an Act of the same year. Sec. 58 is repealing provision of this Act as so amended. The material portion thereof is as follows: -
'S. 58(3). The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (27 of 1949) ...... shall not affect the previous operation thereof and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken."
52. After referring to the above provision in S. 58(3) of the Central Act 31 of 1950 and to the provisions of S. 6 of the General Clauses Act the Supreme Court compared both provisions and observed as follows : (page 83, col. 1) "In the present case sub-section(3)of S. 58 of Central Act 31 of 1950 purports to indicate the effect of that repeal, both in negative and in positive terms. The negative portion of it relating to the 'previous operation' of the prior Ordinance appears to have been taken from S. 6(b), General Clauses Act, while positive portion adopts a 'deeming' provision quite contrary to what is contemplated under that Section.
Under the General Clauses Act the position, in respect of matters covered by it, would have to be determined as if the repealing Act had not been passed, while under S. 58 of the Central Act 31 of 1950 the position so far as the positive portion is concerned - has to be judged as if the 'repealing Act' were in force at the earlier relevant date.
Therefore where, as in this case the repealing section which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self-contained and indicative of the intention to exclude the application of S. 6. General Clauses Act."
It was then pointed out (at page 84, column 1) "In the present case the position is different. The action was still pending when Central Act 31 of 1950 came into force. No order was passed which could attract the attribute of finality and conclusiveness under S. 5-B of the East Punjab Act 14 of 1947.
Further the possibility of such finality was definitely affected by the repealing provision in Central Ordinance No. 12 of 1949 and Central Ordinance No. 27 of 1949. which specifically provided that a pending action was to be deemed to be an action commenced under the new Ordinance as if it were in force at the time and therefore required to be continued under the new Ordinances. Each of thew Ordinances provided for appeal against such an order and the second of them provided for she exercise of revisional power against an appellate order of the custodian."
53. Their Lordships then went. on to observe (at p. 84, column 2, para. 12) that it appeared to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action (though they said they do not se decide), no such vested right to obtain a determination with the attribute of finality could he predicated in favour of the Litigant on the institution of the action. They finally concluded:
"Indeed a comparison of the working of S. 58 of Act 31 of 1950 with the wording of 'S. 6 of the General Clauses Act which show that- if the Legislature intended either that pending proceedings were to he continued under the previous law or that anything in he nature of vested right of finality of Determination or some right akin thereto was .o arise in respect of such pending Proceedings, the negative portion of S. 58(3) would not have stopped short with saying only the 'previous operation' of the repealed law.
It would have borrowed from out of some portions of the remaining. sub-sections (c), (d) and (e) of S. 6, General Clauses Act and provided in express terms for the continuance of the previous law in respect of pending proceedings. Obviously no particular sub- section of S.6 of the General Clauses Act could be borrowed in toto as that...would contradict the positive portion of S. 58(3) of Act 31 of 1950 and would be inconsistent with the idea underlying it "
54. The most important aspect stated in the above judgment is that we have to consider the terms of the repealing Act and to find out as to how far it is positively- inconsistent with the previous law or the various sub-clauses (a) to (c) 6f 5. 6 of the General Clauses Act. If the provisions of the repealing Act are positively inconsistent with the continuance of the previous law or with any one or other of the clauses (a) to (e) of S. 6 of the General Clauses Act, the applicability of the particular sub-clauses of the General Clauses Act, to that extent, will have to be negatived.
55. The other important decision is the one already referred to in Garikapati v. Subbaiah C houdary .That case referred with approval to the decision in Indira Sohanlal's case last referred to (para. 7). However, S. R. Das, C.J. pointed out that in Indira Sohanlal's case the question was left open whether a right of appeal in respect of a pending action could be treated as a substantive right vesting in the litigant on the commencement of the action. (See page 547, para. 8). It was this latter question that was finally decided in Garikapati's case. If a right of appeal is therefore to be treated as a substantive right vesting in the litigant of the commencement of the action, the question will still arise whether there is anything in the repealing Act which shows a 'contrary intention' on the part of the Legislature not preserving that substantive right of appeal. If there is any positive provision or for that matter any such necessary implication therein, inconsistent with the continuance of the substantive right of appeal, the provisions of the repealing law will have to be given effect to and the corresponding sub-clauses (a) to (e) of S.6 of the General Clauses Act have to be treated as not applicable.
56. It is in this context that S.97 (3) of the 1976 Amending Act (of the Code of Civil Procedure) has to be examined for finding out whether there is anything positively, (or by necessary implication) inconsistent in 5. 97(3) with the continuance of the substantive right of appeal which vested in the parties on the commencement or on the filing of the petition. Sec.97(3) clearly states - without any vagueness at all - that the principal Act as amended by the 1976 Act shall apply to every suit, proceeding appeal or application pending at the commencement of the repealing Act (or initiated 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.
57. In my opinion the latter part of S.97(3) is too explicit to admit of any doubt that it is the principal Act as amended in 1976 that should apply to pending suits, proceedings, appeals and applications. This, in my opinion, clearly goes against and is inconsistent with clauses (c) and (c) of S. 6 to the extent referred to in S. 97(3). Viewed in that light, to me it appears difficult to say that the right of appeal vesting in the parties at the commencement ,of the action was not taken away by the repealing law by showing a different intention.
58. As pointed out by Hidayatullah, J. (as he then was) in Dayawati v. Inderjit, , it is not an 'inviolable' rule that a repealing statute cannot or should not affect a vested right. Even as recently as 1975, the Supreme Court has pointed out in Jose Da Costa v Bascora, that here are two exceptions to the rule that a Substantive right of appeal is generally intended to be preserved. In this case the Supreme Court had pointed out as follows:
"The right of appeal being the substantive right, the institution of a suit carries with it the implication that all successful appeals available under the law then in force would be preserved to the parties to the suit, throughout the rest of the career of the suit. There are, however, two exceptions to, the suit viz., (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the Court to which appeal lay at the Commencement of the suit stands abolished.' The above decisions of the Supreme Court, in my opinion, read in the light of S. 97(3) lead to the conclusion that the Civil Procedure Code as amended in 1976 applies to pending applications even though they are disposed of after 1-2-1977 and that the definition of decree in S. 2(2) which deletes orders passed in execution, is applicable to such cases.
59. The next question is whether the matter is covered by the saying provisions in S.97(2)(a) and an appeal can still be filed in respect of applications filed before 1-2-1977 but disposed of after that date. This turns upon the meaning to be given to the words 'application' and 'appeal' in S. 97(2)(a). That part of the section reads as follows:
"S. 97(2) ............
(a) the amendment made to clause (2) of Section 2 of the Principal Act by 5. 3 of this Act shall not affect any appeal against the determination of any such question as is referred to in 5. 47 and every such appeal shall be dealt with as if the said S.3 had not come into force."
In order to decide the scope and ambit of the words 'any appeal' in s. 97(2)(a), it is necessary again to refer to S. 97(3). For convenience, I shall again extract S. 97(3). It reads :
"S. 97(3). Save as otherwise provided in sub-sec. (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 initiate for filed after such commencement notwithstanding ......."
60. Now the question has to be approached by a consideration not only of the words 'appeal' but also 'application' in S. 97(3). If an application is pending as on 1- 2-1977, it has to be disposed of, as per S. 97(3) on the basis of the amended Code only, unless S. 97(2) saves any applications for being dealt with as per the old law. If, therefore, under S. 97 (a), applications such as those under O. 21, R. 2, C.P.C., pending on 1-2-1977, are not saved and are to be dealt with as per the amended Code and they are to be disposed of after 1-2-1977 as per the amended Code, then can it still be said that for questioning that order the unamended Code applies and an appeal lies? In my view, not. If the application itself is to be disposed of as per the amended law, the further proceedings for questioning that order cannot be under the unamended law. Secondly, once the application is disposed of as per the amended law and the order passed under S. 47 is not to be deemed to be a decree and is only an 'order' simpliciter, the question whether an appeal lies after 1-2-1977 should be decided only on the basis of the provisions, if any, of Order 43, Rule 1, C.P.C. as amended by the 1976 Act.
61. If that be the law applicable to 'pending applications' under Order 21, Rule 2, C.P.C. as on 1-2-1977 and if such 'applications' are not covered by the saying provisions in S. 97(2), 1 fail to see how the words 'any' appear, in S. 97(2) can be treated including within their meaning, future appeals to be filled after 1-2-1977, especially when the very applications out of which the appeals are to arise, are to be dealt with as per the amended Code. In my view, the words any appeal', if they are to be treated as including 'future appeals' also of this category, - namely against orders passed after 1-2- 1977 in pending applications as on 1-2-77 - such a construction will directly conflict with the latter part of S. 97(3) which expressly rakes the amended Code applicable to pending applications' and render the same otiose. This is therefore, a clear case for applying the principle of harmonious construction to the provisions in S.97(2)(a) and in S. 97(3). The words 'any appear' in S. 97(2)(a) cannot, therefore, be held to include appeals against determination applications pending on 1-2-1977, unless such applications' as such are also saved by s. 97(2). 10 far applications under Order 21, Rule 2, ..P.C. are concerned, they are not so saved under 5. 97(2) and are to he dealt with as per the amended Code under S. 97(3). Hence the further proceedings for questioning the same annot be under the unamended Code.
62. It is true that S.97 (2) (a) uses the words 'any appeal' but, for the reasons mentioned in the last paragraph, the category of 'appeals' overed by S. 97(2)(a) cannot include appeals rising out of applications under 0. 21, R. 2, pending as on 1-2-1977 but disposed of after 1-2-1977. If thus 'future appeals' of that category are outside the words 'any appeal' in S.97(2)(a), the words 'any appeal' an include only the other two categories (1) ending appeals as on 1-2-77, (11) appeals to e filed in respect of determinations of applications where such determination has already taken place before 1-2-77, but because of delay in the court furnishing copies or ,here the period of limitation has not expired before 1-2-1977, the appeals are preferred after 1-2-77. This second category no doubt; one relating to 'future appeals' after 1-2-77 but here the point to be noted is that the Determination was before 1-2-77 and the order under Order 21, Rule 2, C.P.C. is a decree because of the unamended law applicable to the order which was passed before 1-2-1977. But, to those two categories, we cannot add he category of applications under Order 21, ,Rule 2, C.P.C. which are filed before 1-2-77 but disposed of after 1-2-77. The words 'any appeal' in S. 97(2)(a) cannot, therefore, help.
63. It then remains to consider three arguments of other High Courts which have taken a view opposite to that of none in elation to the amendment of S. 2(2), C.P.C. and S. 97(2)(a) of the Amending Act.
64. So far as Chuluram v. Bhagatram of the Madhya Pradesh High Court is concerned, it is no doubt held there that applications failing under S. 47, C.P.C. though filed earlier to 1-2-77 will be appealable if decided after 1-2-77. It is unfortunate that the attention of the learned Judges was not drawn to S. 97(3) at all which is the crucial provision in the amending Act showing a different intention. In fact, when S. 97 is extracted (at p. 17), only sub clauses (1) and (2) are extracted and not sub-clause (3 '). The same is the case with the judgment of the Orissa High Court in Nanda Kishore v. Mahabir Prasad, AIR 1978 Orissa 129. Even here while referring to 5. 97 (see p. 130), sub- clause (3) of 5. 97 is omitted. As the crucial provision in 5. 97(3) is not adversed to in these two decisions, I dissent from the same. The third decision is that of the Delhi High Court in Syndicate Bank, New Delhi v. Rallis' India Ltd., New Delhi . That case does not deal with Ss. 2(2) and 47, C.P.C. or with S. 97(2)(a) but deals with applications under O. 21, R. 58, C.P.C. That case cannot he of much help in deciding the present case dealing with a different type of application.
65. I entirely agree with the reasoning and conclusion of Amareswari, J., in Challa Ramamurthy v. P. Adinarayan and Sons, . In my view, observations if any, to the contrary, in Gopu Peddl Reddi v. Gopu Thirupathi Reddy, are not correct.
66. For all the aforesaid reasons, I hold that when an application under O. 21, R. 2, C.P.C. was filed before 1-2-77 but was decided after 1-2-77, the said adjudication falling under S. 47, C.P.C. does not amount to a decree and as the matter is not covered by O. 43, R. 1, as amended, no appeal lies and the order is only revisable under S. 115, C.P.C. The revision preferred to this Court is therefore entertainable. On the merits of the cases, it is to be seen that the respondent obtained a maintenance decree in O.S. 19111971 and the claim of the petitioner that he has discharged the decree by payment has not been accepted by the trial court. That finding does not warrant interference in revision. The C.R.P. is therefore dismissed on merits but without costs.
67. Order accordingly.