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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far as such amendment or provision in consistent with the provisions of the Principal Act as amended by this Act, stand repealed.

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.

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 :

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).