Andhra HC (Pre-Telangana)
Pallamreddy Masthan Reddy And Others vs Nellore Finance Corporation And Others on 26 February, 1993
Equivalent citations: AIR1993AP297, 1993(2)ALT97, AIR 1993 ANDHRA PRADESH 297, (1994) BANKJ 391, 1993 SCFBRC 509, (1993) 2 APLJ 100, (1993) 2 ANDH LT 97
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. Whether a claim petition filed under Order XXI, Rule 58 C.P.C. and pending on the date of commencement of the C.P.C. (Amendment) Act, 1976 has to be dealt with in accordance with the pre-amended Rules 58 to 63 of Order XXI, or in accordance with the amended Rules 58 and 59, and whether a suit under the repealed Rule 63 lies against the order passed therein, are the questions that broadly fall for consideration in this Second Appeal and the C.R.P. The answer to this question mainly depends on the interpretation of Sectoin 97 (2) and (3) of the C.P.C. (Amendment) Act, 1976 which came into force on 1-2-1977. A Division Bench of this Court consisting of Jeevan Reddy, J. and Sardar Ali Khan, J. before whom the Second Appeal came up for hearing on a reference by the learned single Judge, felt that in view of the various conflicting decisions on this point, the matter is fit to be decided by a Full Bench. Incidentally it may be mentioned that the Division Bench doubted the correctness of the earlier judgment rendered by Jeevan Reddy, J. sitting singly. The C.R.P. has been directed to be posted before a Full Bench along with the Second Appeal. That is how these two cases are before the Full Bench.
2. In the Second Appeal, the appellant is the claim-petitioner. In execution of the money decree obtained in O.S. 127/71 on the file of the Sub-Court, Nellore, the 1st respondent herein-the decree-holder, attached certain immovable properties on 27-10-1976 as if they belonged to the 2nd respondent-judgment-debtor. The appellant herein and another person by name Sesha Reddy filed a claim petition in E.A. 29/77 in the District Court, Nellore, to raise the attachment. The said claim petition was partly allowed and a part of the property was released from attachment, by an order dated 2-4-1977. Questioning this order in so far as it was against him, the appellant filed a suit -- O.S. No. 571/77, purportedly under the repealed Rule 63 of Order XXI. By judgment dated 14-8-1980, the Principal District Munsif, Nellore dismissed the suit as not maintainable. He took the view that the claim order having been passed after the C.P.C. (Amendment) Act came into force, the amended provisions would govern and a suit does not lie. For the conclusion he reached, the learned District Munsif relied upon the judgment of this Court rendered by Jeevan Reddy, J. in B. N. Murthy v. Sriukakulam Co-op. Central Bank Ltd, (1978)2 APLJ 238. On an appeal preferred to the District Court, the learned District Judge upheld the judgment of the lower Court. The appellate Court felt that thejudgment of Narsing Rao, J. in N. Tati Reddi v. Syed Meera Hussami, AIR 1979 AP 70 relied upon by the appellant did not have a direct bearing on the question and therefore it preferred to follow the judgment of Jeevan Reddy, J. in B. N. Murthy case (supra). The appellate Court observed that the remedy of filing a suit under Order 21, Rule 63 has not been, saved and therefore the only remedy available for the plaintiff was to prefer an appeal against the claim order. Thereafter, the second appeal was filed by the unsucessful appellant. The substantial question of law framed for consideration in the second appeal is "whether the suit is not maintainable to set aside a claim order passed after the commencement of the amended Rule 58 of Order XXI'in respect of an attachment subsisting on the date of the commencement of the amendment rule. "The ground raised in the second appeal is that the date of attachment as well as the claim petition being well before the effective date of the Amendment Act, the old provisions alone would govern.
3. The C.R.P. arises out of an order passed by the learned Subordinate Judge. Kakinada in I. A. No. 1395/74 in O.S. No. 52/74. The decree-holder in a money suit -- O.S. 52/74 is the petitioner herein: He obtained an order of attachment before judgment of certain properties on 9-1-1974. The claim petitioner is the 1st respondent in CRP. The 1st respondent who is a third party claimant filed LA. No. 1395/74 on 20-6-74 seeking to raise attachment to the extent of half of the property attached. In the course of enquiry on that petition, a preliminary.objec-tion was raised by the petitioner herein with regard to the procedure to be followed in disposing of the petition. It was contended by the petitioner that the claim petition had to be disposed of in accordance with the amended provisions of C.P.C. If the amended provisions were to be applied, the Court was legally bound to determine the questions relating to right, title and interest over the property. Faced with the situation of two conflicting decisions -- one rendered by Jeevan Reddy, J. and the other by Narsing Rao, J. (referred to above), the learned Subordinate Judge followed the later decision of Narsing Rao, J. (2) (supra) and repelled the preliminary objection. He held that the procedure prescribed in the old provisions of C.P.C. was applicable. Accordingly, the LA. was posted "for further steps to 27-9-80". Assailing the legality of that order, the C.R.P, has been filed by the decree-holder (2nd respondent in the LA. in the lower Court).
4. Thus, it is seen that in both the Second Appeal and the C.R.P., the attachments were made and the claim petitions were filed before 1-2-1977. The claim petitions were pending on the date of commencement of the C.P.C. (Amendment) Act i.e., on 1-2-1977. In the Second Appeal, the claim petition was disposed of two months later; a suit was filed by the claim petitioner questioning the claim order and the suit was dismissed as not maintainable in view of the amended provisions of C.P.C. In the C.R,P., the lower Court expressed its view to proceed with the claim petition in accordance with the old provisions notwithstanding the amendment. By virtue of filing of the C.R.P. and the stay granted by this Court, the said claim petition is said to be pending.
5. Briefly stated, the contention of the learned Counsel, Mr. P. Krishna Reddy appearing in Second Appeal is that the claim petitions pending by the date of Amendment Act are governed by old Rules and the remedy of suit could be availed of by the unsuccessful claimants. On the other hand, the learned Counsel for the respondent in the Second Appeal Mr. S. Dasaratharama Reddi and Mr. VL NGK Murty, appearing for the petitioner in CRP contended that the new law regulates such proceedings and the remedy of suit is no longer available to the claim petitioner.
6. Before we proceed to deal with the respective contentions, we shall have a conspectus of relevant changes made to the Civil Procedure Code in the year 1976 and the nature and effect of these amendments in a nut-shell. In order to minimise the delays and to regulate the conduct of civil proceeding on sounder lines so as to render more effective justice to the parties, the Parliament enacted the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as 'the Amemdmenf Act'). The Act came into force on 1-2-1977. The Amendment Act has brought about far-reaching changes in the civil procedure. Some of the provisions were deleted, some were added and some were amended.
7. We would now refer to such of those amendments made to Order XXI which need special mention in the context of the present controversy. Order XXI, as is well known, lays down the rules for execution of the decrees and orders. Concerning the subject of attachment, Rules 31, 32, 48A and 57 were amended. The period of six months prescribed in sub-rules (2) and (3) of Rule 31 has been abridged to three months. That is to say, if the attachment of moveable property remained in force for three months without a decree being satisfied and the decree-holder applied to have the attached property sold, such property can be sold. If no application to sell the property attached has been made till the' expiry of three months from the date of attachment, the attachment shall cease (Vide sub-rule (3)). Rule 32 deals with the execution of the decrees for specific performance, restitution of conjugal rights or for injunction. Under unamended Rule 32(3), if the judgment-debtor had not satisfied the decree for a period of one year while the attachment was in force, the Court may direct the sale of property. Under sub-rule (4) of the amendment Rule 32, if the application to have the propert sold has not been made till the end of six months from the date of attachment, the attachment shall cease. The period of one year which was prescribed by the unamended sub-rules (3) and (4) was thus abridged to six months. Rule 48A is a new provision introduced providing for attachment of salary of private employees, and the procedure therefor. Rule 57 deals with the determination of attachment. A new rule has been substituted for the old rule. According to the new rule, the Court while dismissing an application for execution of a decree shall specifically direct whether the attachment shall continue or cease and in the former case, to further indicate the period up to which such attachment shall continue. If the Court omits to give such direction, the attachment shall be deemed to have ceased.
8. The more crucial amendments with which we are concerned in the present case are the substitution of Rules 58 and 59 in the place of old Rules 58 to 63. Rules 60 to 63 stand deleted. Rule 58 has been recast. The new Rule 59 deals with the same subject matter viz., stay of sale, as the old sub-rule (2) of Rule 58 and it is an improvement over that sub-rule. The sub-heading -- "Investigation of claims and objections" was substituted as "Adjudication of claims and objections" in keeping with the content of amendment of Rule 58. It is necessary to extract Rule 58 as amended.
"58. Adjudication of claims to, or objections to attachment of property: (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained :
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination, --
(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or
(d) pass such order as in the circumstances of the case it deems fit.
(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same condition as to appeal or otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conducive."
Rule 58 (1) as it stood prior to amendment, was in the following terms :
"Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects as if he was a party to the suit.
Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unecessarily delayed."
The scope of enquiry under the old Rule 58 and the circumstances in which the claim had to be allowed or rejected were indicated by the then existing Rules 59 to 61. Under the old Rule 59, the claimant or objector must adduce evidence to show that on the date of attach ment he had some interest in or was possessed of the property attached. If the Court is satisfied after investigation that the property when attached was not in possession of the judgment-debtor or of some person in trust for him or in the occupency of his tenant and even if it was in possession of the judgment-
debtor, such possession was not on his account or as his own property but on account of or in trust for some other person, the Court shall make an order releasing the property wholly or partly. The old Rule 61 lays down that the Court shall disallow the claim where it is satisfied that the property was, at the time of attachment, in the possession of the judgment-debtor as his own property and not on account of any other person. A person whose claim or objection was rejected, could file a suit under Rule 63 to establish the right which he claims to the property under attachment. Subject to the result of such suit, the order passed under Rule 61 is conclusive.
9. Thus, it is to be seen that under the old Rules, the scope of investigation into a claim petition was limited to the question of possession of the attached property. In such summary enquiry, questions relating to title could not be canvassed. However, the questions of title to the attached property could be agitated by way of a separate suit that may be filed by the unsuccessful party -- be it third party claimant or decree-holder. Though the old Rule 63 does not say in so many terms that the title to the property could also be canvassed in a suit arising out of a claim order, it is now well settled that the questions of title as well as possession will have to be gone into in such suit. Vide A. Vittal v. Rama-kistiah, AIR 1969 AP 167. The position now is that the Court is empowered to adjudicate upon the claim in a comprehensive manner covering the questions relating to right, title or interest over the property attached. The circuitous procedure of enquiry into possession in the first instance and then relagating the parties to a suit for establishing the right or title over the property is now dispensed with, The claim petition filed under Rule 58 could now be dealt with just as a suit in which questions of title and possession could be gone into. Another significant change made is that the order made in the claim petition shall be treated as a decree, against which an appeal lies.
10. Taking an overall view and broadly speaking, the changes brought about by the Amendment Act to Rules 58 to 63 do not, in any appreciable measure, affect or curtail the rights and remedies of the claim-petitioners or the decree-holders. The scope of enquiry under Rule 58 has been amplified so as to cover the questions of right and title to the property. Instead of driving the parties to a separate suit, the amendment provides for the . adjudication of the claim on all aspects including the right, title and interest in and over the property. The necessary concomitant of this change is that a claim petition is decided virtually as if it is a suit for title and possession. When there is such compresensive adjudication under the amended Rule 58, the filing of another suit is, in the very nature of things, superfluous and the suit is therefore necessarily excluded. At the same time, against the order passed under Rule 58, an appeal is provided for just as an appeal could be filed against the decree in a suit. The right to move the Court for raising attachment on the basis of a claim to property still subsists. The only change is that the claimant's objection will now be enquired into more comprehensively so as to cover the questions of right, title and interest over the attached property as well. The new provisions do not curtail the pre-existing rights and remedies nor do they place any of the parties in a disadvantage or detriment. In our considered view, the change brought about by the Amendment Act to Rule 58, is essentially a procedural change having a bearing on the ambit and manner of determination of claim petition. If that be the proper perspective of the change, there could be no legal objection in applying the amended provisions to the pending claim petitions, unless of-course there is anything in the Repeal and Savings provision which excludes the applicability of the new provisions. It is exiomatic that there is no vested right to have recourse to a particular procedure for enforcing a right. The following observations of a Full Bench of this Court in Allied Exports & Imports v. State of A.P., are quite apposite :
"In cases where rights substative or re medial are touched, the presumption is that the legislature does not intend to take away or affect such rights retrospectively unless, as stated earlier the intention of the Legislature is made explicit in that behalf. However in regard to the procedural law, the general presumption is that the alteration in the procedure is retrospective in the sense that ' not only applies to the pending cases but also applies to causes of action which had arisen before the change in the procedure was effected. But there is an exception to this general rule. In cases where the alteration in procedure would have the effect of destroying the right of action, the procedural law also is presumed to be prospective and not retro spective."
The following observations of the Full Bench of Calcutta High Court in Bhobo Sundari Debi v. Rakhal Chunder Bose., ILR 12 Calcutta 583. were cited with approval by the Full Bench:
"There is I think a clear distinction between, relief and the mode of procedure, for obtaining such relief. The relief remains unaffected by the change of the procedure. The rights and liabilities of the mortgagor and mortgagee, and the relief in respect of such rights and liabilities are the same under the Transfer of Property Act as they were before. A different procedure for enforcing such rights and obtaining such relief has however been adopted. The procedure for enforcing a right is no portion of that right, nor does it alter or affect it."
In Abdul Karim v. Dy. Custodian-General, , the question was whether the amended Section 48 of the Administration of Evacuee Property Act could be applied to the pending matters. The amended Section 48 laid down that sums payable to the Government or to the custodian can be recovered as arrears of land revenue and that where there is any dispute as to whether any sum is payable, the custodian has to make an enquiry and decide the question after giving opportunity to the person concerned. The decision of the Custodian was made final subject to any appeal or revision. The Supreme Court held at page 1258.
"Sub-sections (1) and (2) are clearly procedural and would apply to all cases which have to be investigated in accordance therewith after October 22, 1956, even though the claim may have arisen before the amended section was inserted in the Act. It is well-settled that procedural amendments to a law apply, in the absence of anything to the contrary, retrospectively in the sense that they apply to all sections after the date they came into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date."
In State of U.P. v. Anand Swamp, the Supreme Court was considering the effect of the U.P. Government Premises (Rent Recovery and Eviction) Act 1952 which provides for a summary procedure for recovery of rent and damages. The contention that that Act cannot be invoked for the purpose of recovering the arrears of rent and damages from unauthorised occupants of the buildings let out before the Act came into force was negatived. The Supreme Court observed at page 128.
"Before the commencement of the Act, suit was the only remedy for recovering the arrears of rent. But the Act gives another remedy for recoverying arrears of rent to the Government. There is neither a vested right nor a vested liability in any procedure. The tenant or a trespasser of a Government premises has no vested right in the suit procedure."
In State of Tamil Nadu v. M/s. Hind Stone, one of the questions was whether the applications filed for renewal of mining lease before the new Rule 8C came into force should be dealt with in accordance with that Rule or the old Rules, The Supreme Court held that the new Rule ought to be applied although the applications were filed long prior to the introduction of that Rule. It was observed at page 721:
"No one has a vested right to the grant or renewal of a lease and none can claim vested right or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in any one, an application for a lease has necessarily to be dealt with according to rules in force on the date of disposal of the application despite the fact that there is along delay since the making of the application."
We have cited the above decisions to reinforce the view which we have expressed earlier that the change effected by the Amendment Act in Rules 58 to 63 of Order XXI are basically procedural in nature and no vested right for the disposal of the claim petition in accordance with the old procedure can be said to have accrued to a party.
11. We shall now revert to the important question as to the effect of the Repeal and Savings provision contained in Section 97 of the Amendment Act and whether there is anything in the said provisions which calls for a different approach. The relevant subsections and Clauses of Section 97 are extracted hcreunder:
"97. Repeal and Savings:
(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.
(2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,--
(a) to (p)...
(q) the provisions of Rules 31, 32, 48A, 57 to 59, 90 and 97 to 103 of Order XXI of the First Schedule as amended or, as the case may be, substituted or inserted by Section 72 of this Act shall not apply to or affect-
(i) any attachment subsisting immediately before the commencement of the said Section -72, or
(ii) any suit instituted before such commencement under Rule 63 aforesaid to establish right to attached property or under Rule 103 aforesaid to establish possession, or
(iii) any proceeding to set aside the sale of any immoveable property, and every such attachment suit or proceeding shall be continued as if the said Section 72 had not come into force.
(r) to (zb)... ... ... ...
(3) Save as otherwise provided in subsection (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement."
Sub-section (3) if it stood alone, leaves no room for doubt that a proceeding or an application pending at the commencement of the Act or instituted after such commencement shall be governed by the amended provisions, notwithstanding the fact that the right or cause of action in pursuance of which such suit, application or proceeding was instituted had been acquired or accrued before the Amendment Act. It is to be noted that the operation of sub-section (3) is controlled by its prefatory words "Save as otherwise provided in sub-section (2)". Thus, sub-section (3) is made subservient to subsection (2). As between sub-section (2) and sub-section (3), the provisions contained in sub-section (2) have overriding effect. If there is anything in sub-section (2) which gives a contrary indication in the sense that it excludes the applicability of amended provisions of C.P.C. to the pending matters, that will prevail and the amended provisions will have to be eschewed from consideration.
12. That takes us now to sub-section (2). Sub-section (2) enjoins that notwithstanding the fact that the provisions of the Amendment Act have come into force, the amendments shall not apply to or affect certain matters or proceedings specified in Clauses (a) to (zb). Another important qualification is engrafted into sub-section (2). The amendments are said to be 'without prejudice to the generality of provisions of Section 6 of the General Clauses Act". Regarding the effect of Section 6 of the General Clauses Act, we will advert to a little later. Omitting the reference to Section 6 of the General Clauses Act for the time being one thing is crystal clear. Sub-section (2) carves out exceptions to the operation of the general rule laid down in sub-section (3). In regard to specified matters and situations envisaged by Clauses (a) to (zb) of sub-section (2), the old provisions of the Code would continue to apply even for the pending applications, proceedings, etc. Let us therefore see whether any of those clauses come into play in the instant case. Amongst various clauses, Clauses (q) is the only clause relevant to the present controversy and accordingly we shall closely examine that clause. It is contended by the learned Counsel for the appellant Mr. P. Krishna Reddy that by virtue of Clause (q) (i), the entire pre-existing procedure governing the attachment, raising of attachment, filing and disposal of claim petition and filing of suit, is kept in tact and the proceedings pending and/or disposed of subsequent to the Amendment Act are governed by the unamended provisions only. Naturally, the learned Counsel has relied on certain judgments of this Court and of other High Courts. Mr. S. Dasaradharama Reddi, learned Counsel appearing for the respondent in Second Appeal and Mr. VLNGK Murthy, appearing for the petitioner, in the C.R.P. have vehemently countered this proposition and commended for our acceptance the view expressed by the Division Bench while making the reference to the Full Bench. We are of the considered view that Clause (q) (i) cannot be so construed as to deal with the claim petitions arising out of attachments and the matters incidental thereto. Agreeing with the reasoning of the Division Bench which has made the reference, we are inclined to hold that each one of the three Rules mentioned in Clause (q) should be relegated and confined to the relevant sub-clause. The Rules mentioned are 31, 32, 48A, 57 to 59, 90 and 97 to 103. Sub-clause (i) of Clause (q) speaks of an attachment subsisting immediately before the commencement of the Amendment Act. Such attachment is unaffected by the amended Rules. As far as attachment (sub-clause (i)) is concerned, the rules applicable thereto, in our view, are Rules 31, 32, 48A and 57. These are the Rules which brought out certain changes vis-a-vis the subject of attachment. What clause (q) enjoins is that notwithstanding such changes, the-attachments already made shall remain unaffected. We have already adverted to the salient aspects of the changes made by the four Rules mentioned above on the subject of attachment and it needs no repetition. Then, we come to Rules 58 and 59. In our view, Rules 58 and 59 are relevant and applicable only to sub-clause (ii) but not to sub-clause (i). Sub-clause (ii) speaks of a suit instituted before the commencement of the Amendment Act under Rule 63. With the obvious purpose of allowing such suit to continue irrespective of the deletion of Rule 63, sub-clause (ii) was introduced to make it clear that the amendment to Rules 58 and 59 should not make any difference as far as such suit is concerned. Rules 58 and 59 cannot be projected into the first sub-clause relating to attachment for the obvious reason that a claim arising from attachment is not an integral part of attachment itself but it is always considered to be an independent proceeding. Rules which have no direct bearing on the subject of attachment cannot be read into sub-clause (i). Perhaps, much of confusion could have been avoided by mentioning the specific rules against each sub-clause instead of combining all of them in the opening portion of Clause (q). Nevertheless, a close analysis of the three sub-clauses placed in juxtaposition with the rules mentioned in Clause (q), would make it clear that the rules have to be allocated to the respective sub-clauses, as rightly observed by the Division Bench in the order of reference. Now, coming back to sub-clause (ii), it is to be seen that not only Rules 58 and 59 but also Rules 97 to 103 will be relevant in the context of that sub-clause because sub-clause (ii) refers to a suit instituted under Rule 63 as well as asuit under Rule 103. We may recall that Rules 97 to 103 deal with resistence to delivery of possession to a decree-holder or purchaser. Whereas the claim under Rule 58 is preferred by a third party, application under Rule 97 is made by the decree-holder or the purchaser of the property sold. Similar changes as in the case of claim petitions by third parties have been made in this gamut of rules as well. Hence, Rule 97 to 103 shall also be assigned to sub-clause (ii). As far as the third sub-clause is concerned, it is Rule 90 that becomes relevant and has to be read into that sub-clause. With regard to proceedings to set aside the sale of immovable property, material changes were made in the Amendment Act. The Parliament wanted to make it clear that the amended Rule 90 shall not affect the pending proceedings to set aside the sales of immovable property and the same shall be disposed of as if the amendment was not made.
13. Clause (q) thus understood, imparts a perfect cohesion and better meaning to various parts of that clause. What emerges from the above discussion is that it would be inappropriate and impermissible to read Rules 58 and 59 into sub-clause (i) of Clause (q) and if so, the saving in sub-clause (i) applies only to the attachments made prior to the Amendment Act but not to claims or objections filed under Rule 58 as a sequel to such attachments. It cannot be said that by virtue of attachments effected prior to the Amendment Act, the pending claim petitions and the claim petitions filed thereafter shall be governed by the old provisions.
14. Having regard to the view we have taken, we overrule the judgments of this Court in N. Tati Reddi v. Syed Meera Hussairti AIR 1979 AP 70 (supra), A Gyaneshwar Rao v. Mahmood Shareef, and Tilat Shaheen v. Omprakash Gupta, . We respectfully dissent from the view taken by the Delhi High Court in Syndicate Bank v. Rain's India Ltd., which formed the basis for the similar view taken by the Allahabad High Court in Shama Devi v. Ramjab Rolling Mills, , by Karnataka High Court in Laxmidevi v. M/s. The Firm of Prakash & Co., by Patna High Court in Jyotsna Mehta v. M/s. Ram Bahadur Thakur & Co., by Rajasthan High Court in Juharmal v. Kapoor Chand, by Madras High Court in Kannappa Chettiar, A. N. v. Nachiamuni alias Maniammal, (1984) 97 LW 624 and Madhya Pradesh High Court in Bhanwarlal v. Bherulal, . In these cases, with respect, we must say that the -learned Judges without much of reasoning assumed that Clause (q) would govern the case. The inter se relation of various sub-clauses to the Rules specified in the opening part of Clause (q) was not kept in view by the learned Judges, The fact that the claim petition which is a remedy given to a third party to question the attachment is something distinct from attachment itself was also not noticed by the learned Judges. In the first case decided by this Court, the claim petition was filed after the Amendment Act. Even then, the learned Judge (Narsing Rao, J.) held that it will have to be decided according to the old provision inasmuch as the attachment was made earlier. We have no hesitation in disapproving this view. In Tilat Saheen case (supra), Anjaneyulu, J. observed that the Division Bench of this Court in M. Janikamma v. Vajjula Paradesi, AIR 1980 AP 209 impliedly approved the principle laid down by Narsing Rao, J. in N. Tati Reddi case (supra). We are unable to subscribe to this view point. In Janikamma case, the order of the Executing Court was passed in October, 1977 i.e., after the Amendment Act. While construing Section 97(2)(a) of the Amendment Act, the learned Judges held that only the appeal before the District Court was covered by Section 97(2)(a) but not a further second appeal under Section 100, C.P.C. Far from relying upon the observations of Narsing Rao, J. in Tati Reddy case, the Division Bench cited with approval the observations made by Jeevan Reddy, J. in B.N. Murthy case (supra) to the following effect:
"This sub-section (S. 97(3)) does not leave any doubt that except in so far as specifically provided, the Amending Act does not have retrospective effect and it applies to all pending proceedings."
The Division Bench held that the provisions of the old C.P.C. would continue to apply except to the proceedings under sub-section (2) and in respect of all other proceedings, the provisions of the amended Code would apply. The learned Judges then expressed the view that the right of appeal was expressly taken away by the amended law. Referring to the judgment of Narsing Rao, J. the Division Bench observed that the decision was with reference to Section 97(2)(q) and the learned Judge did not consider the scope of Section 97(3). We need not dilate further on this decision.
15. The controversy in this case does not get resolved with the conclusion we reached on the scope of Section 97(2)(q). The next question which is an equally important question is whether and how far the operation of sub-section (3) of Section 97 is controlled by the provisions of Section 6 of the General Clauses Act and if so whether by virtue of the application of Section 6 of that Act, the right to file the suit under the repealed Rule 63 is preserved in respect of a claim application pending on the date of commencement of the Amendment Act. The argument in favour of sustaining such a right to file a suit runs on these lines: Sub-section (3) is subject to subsection (2) of Section 97; sub-section (2) apart from mentioning certain specific exceptions, uses the expression "without prejudice to the generality of Section 6 of the General Clauses Act", thereby conveying the meaning that Section 6 of the General Clauses Act should be given a place of primacy over sub-section (3). If so, Section 6 of the General Clauses Act manifests a contrary intention and by virtue of its operation, the right to file a suit under Rule 63 was preserved and therefore, such right has to be given full affect to notwithstanding Section 97(3). This argument has been countered by the learned Counsel Mr. Murthy stating that there is really no conflict between sub-section (3) of Section 97 and Section 6 of the General Clauses Act and none of the clauses of Section 6 of the General Clauses Act saves the so called right to file a suit or to be governed by, the unamended rules.
16. Mr. S. Dasaradharama Reddy, the learned Counsel for the respondent in the second appeal has gone a step further and submitted that although the claimant can be said to have the accrued right to file a suit by the date of the amendment, the said right must be said to have been defeated by reason of the contrary intention expressed by subsection (3) of Section 97. He submits that merely because sub-section (3) is subject to sub-section (2) which in turn saves the operation of Section 6 of the General Clauses Act, it does not foilow that sub-section (3) ceases to apply to the pending proceedings. He contends that the provisions of subsection (3) prevails over Section 6 of the General Clauses Act in view of the contrary intention expressed by sub-section (3) of Section 97.
17. On these submissions, the first and foremost question that has to be answered is whether there is anything in Section 6 of the General Clauses Act which precludes the application of the amended provisions of Rule 58 and whether Section 6 of the General Clauses Act preserves the remedy of suit under Order XXI, Rule 63. Before we proceed to analyse Section 6 of the General Clauses Act, it is useful to refer to the test enunciated by the Supreme Court in State of Punjab v. Mohar Singh Pratab Singh, AIR 1955 SC 84 : (1955 Cri LJ 254) while construing the effect of a repealing provision:
"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 is 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 enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them."
18. We would now refer to the relevant portion of Section 6 of the General Clauses Act. Section 6 lays down inter alia, that unless a different intention appears, the repeal shall not (1) affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment and (2) affect any legal proceeding or remedy in respect of such right privilege or obligation. It is then stated that any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the repealing Act has not been passed. The Supreme Court pointed out in C.I.T. v. Shah Sadiq & Sons, that the principle behind Section 6(1) of the General Clauses Act is that "rights which have accrued are saved unless they are taken away expressly. "The Supreme Court took the view that where the savings provision in the repealing statute is not exhaustive, resort can be had to Section 6(c) of the General Clauses Act.
19. Now, we shall advert to the precise argument advanced by the learned Counsel for the petitioner in CRP Mr. Murthy on the applicability of Section 6 of the General Clauses Act. The learned Counsel submits that no right accrued or liability incurred under the repealed or amended provisions will get affected within the meaning of Clause (c) of Section 6 by applying the amended Rule 58 to the pending claim petitions and therefore such pending applications shall be disposed of in accordance with the amended provisions as laid down by sub-section (3) of Section 97. According to the learned Counsel, the rights and liabilities relating to or arising out of attachment were kept in tact as they are neither repealed nor otherwise interfered with by the Amendment Act. The steps to be taken for raising the attachment or filing a suit to establish the right over the attached property are not 'rights' within the meaning of Clause (c) of Section 6 much less they are vested rights, says the learned, Counsel. Filing of claim petition and filing of suit in the event of adverse decision in that petition are all remedies or legal proceedings which fall within Clause (e). Section 6 guarantees the continuance of those remedies unhampered by the amendment, provided they are meant to enforce the rights or obligations preserved by Clause (c). To emphasise this proposition, the learned Counsel relied upon the expression "in respect of any such rights" occurring in Clause (e). As the rights and obligations accrued or incurred under the unamended Act remained unaffected, Section 6(c) of the General Clauses Act does not come into the picture at all, according to the learned Counsel. If so, the learned Counsel submits that Section 97(3) will have its full play and the new procedure alone will govern - the disposal of claim petitions and connected matters. The learned Counsel further submits that there is no intrinsic unity between a claim petition and a suit under Rule 63 and they do not stand on the same footing as a suit and appeal. If at all, the right to file suit vests only on the disposal of the claim petition but not on a mere filing of the claim petition.
20. We see considerable force in some of the above submissions made by the learned Counsel, Mr. Murthy. However, we consider it unnecessary to express a final opinion on this wider question inasmuch as we feel that the same conclusion could be reached through a different route.
21. Let us take it that the vested right to file a suit can be said to have accrued to a party on the very date of filing the claim petition on the analogy of a right of appeal being vested in a suitor on the date of filing of suit. Even then, what is the legal position? It is necessary to bear in mind that the pursuit of remedy by way of suit arises only after the claim petition is disposed of. The first step is the disposal of claim petition already filed which subsists even after the Amendment Act. We should therefore address ourselves in the first instance to the crucial question as to how that claim petition is to be dealt with, should it be enquired into only to the limited extent as contemplated by old Rule 58 or should there be a comprehensive enquiry as envisaged by the new Rule 58. That depends upon the question whether the change brought about in the scope and manner of investigation under Rule 58 is a procedural change or it amounts to a change in substantive law affecting the vested rights of the parties. We have already dealt with this aspect and expressed our view that the change is essentially procedural and the rights and remedies of the parties are in no way jeopardised. We have also referred to certain pronouncements on the subject. It is exio-matic that a party can claim no right to have the determination of the claim petition in a particular way. If that be the true position in law, an enquiry into the claim petition should proceed in a comprehensive manner so as to cover the questions relating to rights, title and interest over the attached property, as required by the amended Rule 58. When once such comprehensive adjudication is made in the claim petition, it is futile to contend that the unsuccessful party will still have a right of suit under the old Rule 63. The party be it a . third party claimant or the decree-holder, is then left with the remedy of appeal straightaway against the claim order. If once it is conceded that the claim should be disposed of in accordance with the new procedure laid down in Rule 58, the question of filing a suit once again traversing the very same grounds does not arise. Such suit would be a duplication of the proceedings and patently superfluous. Moreover, the challange to the claim order by filing a suit under Rule 63 could only arise if the claim petition had been disposedof in accordance with the old procedure. It is difficult to visualise a claim petition being adjudicated in accordance with the amended Rule and a suit being filed under the repealed Rule to question that order. The Legislature could not have contemplated such an anamolous result. Thus viewed from any angle, we are inclined to take the view that the right of filing the suit if at all any right existed on the date of commencement of the Amendment Act, gets abrogated by the different intention manifested by the new provision which itself provides for a remedy as efficacious as a suit followed by an appeal. If a different intention could be gathered from the provisions of the repealing and Amending Act, that intention has to be effectuated notwithstanding the fact that the vested rights under the repealed provisions are affected. This is the result which inevitably follows from the expression -- "unless a different intention appears" occurring in the opening sentence of Section 6 of the General Clauses Act. It cannot also be contended that in order to preserve the alleged right of suit at any cost, the truncated enquiry under the old Rule 58 should still contiune. The disposal of the claim petition being the first step in the proceedings, the method and manner of disposal of the claim petition has got to be decided independent of the consideration whether it will have the effect on the preservation of the remedy of suit. Any other interpretation would be unreasonable and unrealistic. It would be something like putting the cart before the horse, as the old adage goes. Thus, on the very terms of Section 6 of the General Clauses Act, we hold that no right to file a suit in respect of an undisposed of Claim Petition could remain after the Amendment Act.
22. We reach the above conclusion even without reference to sub-section (3) of Section 97. In fact, we consider it legitimate to have recourse to sub-section (3) of Section 97 at least to the limited extent of considering as to how and in what manner the pending Claim Petition should be disposed of after the Amendment Act. Section 97(3) is another pointer that the new procedure shall be applied to the process of adjudication of the Claim Petition. As already noticed, there is nothing in sub-section (2) of Section 97 or Section 6 of the General Clauses Act which precludes the applicability of Section 97(3). Thus, from whatever angle it is viewed, it is clear that the pending claim petitions ought to be disposed of in accordance with new Rule 58 and an aggrieved party cannot maintain a suit against that order. In this view, it is not necessary to consider the submission of the learned Counsel, Mr. Dasaratharama Reddi that in the event of conflict between subsection (3) of Section 97 and Section 6 of the General Clauses Act, the former should prevail over the latter. In our view, no such irreconcilable conflict arises. The interpretation which we have placed and the conclusion reached by us has the merit of harmonising the various relevant provisions, while substantially preserving the rights and remedies available to the respective parties in the wake of switch-over from the old to new provision. In the ultimate analysis, what follows is this:
(1) Old suits, that is to say, the suits instituted under the repealed Rule 63 before the commencement of the Amendment Act continue to be governed by the old provisions unaffected by the amendments, by virtue of sub-clause (ii) of Clause (q) of Section 97(2).
(2) The claim petitions disposed of before the Amendment Act but in respect of which suits were not filed by the date of Amendment Act, should also be treated on the same footing as Category (1) above. On the disposal of the claim petition which wo.uld have been disposed of in accordance with the old procedure, the right to file a suit undoubtedly accrued to the party and he can therefore avail of that remedy irrespective of the amendment. The claim petition dealt with and disposed of before the Amendment Act in accordance with the old procedure should logically and necessarily be subject to the result of suit under the repealed Rule 63. Such a suit could be filed even after the Amendment Act provided the period of limitation had not expired.
(3) Pending claim petitions, that is to say, those filed before the Amendment Act and pending on the date of commencement of the Amendment Act wilt have to be disposed of by the new procedure laid down by amended Rules 58 and 59, irrespective of prior attachment. In other words, instead of a summary investigation into possession, there should be a full fledged enquiry into the right, title and interest as well. The order passed therein shall be treated as a decree and subject to appeal. The same Rule will apply to the claim petitions filed after the Amendment Act.
23. The above principles laid down by us will take care of all the situations arising out of transition from old to new. As far as the last proposition is concerned, we would like to further clarify that in order to facilitate comprehensive adjudication under the amended Rule 58, the parties to the claim petition should be permitted to amend the pleadings and to adduce further evidence, if such steps are found necessary from the standpoint of the new Rule 58.
24. The view which we have taken accords with the conclusion reached by Jeevan Reddy, J. In B.N. Murthy case (supra) though the reasoning is somewhat different. As already pointed out, Jeevan Reddy, J. sitting in the Division Bench doubted the correctness of his judgment in B.N. Murthy case and thus referred the matter to the Full Bench.
25. Before we proceed to dispose of the cases on hand, we would like to refer to the judgment of the Full Bench of this Court in G. Ramasubbayya v. G. Rajamma, . Almost the same question which arose before the Division Bench in Jani-kamma case AIR 1980 AP 209 (supra) came up for consideration before the Full Bench. In that case, the petitioner in CRP filed an E.A. in the year 1975 praying to record full satisfaction of a decree for maintenance. The application was dismissed on 20-8-1979. The petitioner carried the matter in appeal to the District Court. The appeal was rejected as incompetent. Thereafter, the petitioner filed the CRP against the order of the Executing Court passed on 20-8-1979. The question arose was whether an appeal would He against the order dismissing the E.A. Bhaskaran, C. J. and SSM Quadri, J. speaking per majority held that an appeal would lie and the CRP was not maintainable. Jagannadha Rao, J. (as he then was) expressed his dissent and held that no appeal would lie and that the right of appeal must be deemed to have been taken away by the express provisions contained in Section 97(3) of the Amendment Act. The learned Judge held that the expression 'any appeal' in Section 97(2)(a) was not referable to future appeals i.e., the appeals filed against orders passed after 1-2-1977. Both the majo rity and minority judgments stressed the need to give harmonious interpretation to various provisions. We also find an elaborate dis cussion about the nature of the right of appeal and the scope of related provisions viz., Section 97 and Section 6 of the General Clauses Act. As the ratio of the judgment mainly turned on the interpretation of Sec tion 97(2)(a) and the view which we have taken on the principles of interpretation of the provisions is no different, we do not consider it necessary to examine this decision in detail.
26. In the light of the law laid down by us, the C.R.P. is allowed. The claim petition will have to be disposed of in accordance with the amended Rule 58 of Order XXIM CPC. The parties shall be given an opportunity to amend the pleadings if necessary. There will be no order as to costs.
27. In the view we have taken that against an order passed in the Claim Petition disposed of after 1-2-1977, a suit under Order XXI, Rule 63 is not maintainable, the second appeal is liable to be dismissed. Accordingly, we dismiss the second appeal. In the circumstances of the case, there will be no order as to costs.
28. We do not wish to close the case without taking note of the unfortunate situation in which the appellant is placed. The Claim Petition was disposed of in a summary manner according to the old procedure just two months after the Amendment Act came into force. Obviously, neither the Court nor the parties concerned were aware of the amendment and/or their implications. The appellant filed a suit and persisted in prosecuting that remedy. In view of the ambivalent state of law, the appellant could have, in all probability, felt that the old law would still govern and the suit was maintainable. He has lost the remedy of suit as well as the opportunity of comprehensive adjudication into right, title and interest over the attached property. If the claim order had been before us, we would have unhesitatingly set aside that order and remanded the matter back to the executing Court for fresh determination as per the amended Rule 58 of Order XXI. We are not a position to do so for the reason that the subject-matter of the Second Appeal is the validity or otherwise of the orders passed by the Courts below holding that the suit was not maintainable. In the view it has taken, the first Court did not go into the merits of the claim at all. However much we wish to retrieve the appellant from the predicament in which he is placed, it is not legally possible for us, while disposing of this Second Appeal, to set aside the order passed in E.A. and to remand the Claim Petition for fresh disposal. We have therefore no option but to dismiss the Second Appeal. However, we would like to observe that even now it is open to the appellant to file an appeal against the order in E.A. with a petition to condone the delay. Having regard to the facts and circumstances of the case, there is no reason why the delay should not be condoned by the appellate Court and accord the necessary relief in the light of this judgment. To avoid any future controversy in the event of the appellant filing an appeal, we would like to place on record the concession fairly and legitimately made by the learned Counsel for the respondent that the ends of justice would be better served if the appellant is given an opportunity to agitate the questions relating to right, title and interest over the attached property in accordance with amended Rule 58 of Order XXI. The appellate Court as and when approached by the appellant, will no doubt bear all these aspects in view. For the purpose of enabling the appellant to pursue the remedy available to him, we would direct status quo with regard to the attached property to be maintained for a period of three months from today. We do hope that the condone delay petition and the appeal that may be filed, will be disposed of expeditiousiy.
29. Appeal dismissed.