KURIAKOSE Vs. P K NARAYANAN NAIR

JUDGEMENT

(1.) The principal question that falls to be decided is whether the lower appellate court was wrong in dismissing the appeal out of which the revision arises, as not maintainable. On January 5, 1977 the respondent decree holder filed an execution petition for recovery of the amount due to him. The petitioner who is the judgment debtor raised objections to the execution claiming the benefits of Ordinance 1 of 1977 and later made an application E. A. 660 of 1977 for relief under Act 17 of 1977, which had, in the meanwhile replaced Ordinance 1 of 1977. After enquiry the execution court by its order dated October JO, 1977 overruled the objections of the petitioner and dismissed E A. 660 of 1977 and allowed the respondent to proceed with the execution. From this order the petitioner preferred an appeal in the Additional District Court, Parur. The learned Additional District Judge dismissed the appeal as not maintainable on the ground that the order was "not a decree by virtue of the Amendment Act (Act 104 of 1976)". The petitioner challenges this decision in the revision.

(2.) Before it was amended by Act 104 of 1976 the Code of Civil Procedure by S.2(2) defined 'decree" to include, so far as material, "the determination of any question within S 47." Act 104 of 1976 omitted the words "within S.47" from the definition of decree The result of this omission was that determination of any question under S.47 ceased to be a decree and thereby lost its appealability as a decree under S.96. Act 104 of 1976 came into effect on February 1, 1977 and therefore the order of the executing court which is dated October 10,1977 did not possess the force of a decree to sustain the appeal before the lower appellate court. Counsel for the petitioner however contended that he had acquired a vested right of appeal as the execution petition was filed in January 1977 when orders under S.47 were appealable and that this right has not been destroyed by Act 104 of 1976. He also contended that despite the change in the definition of "decree" with its impact on the appealability of orders, S.97(2)(a) of the Act preserves the right of appeal from an order under S.47 and that the appeal to the court below was therefore competent for that reason. The short point in the revision is whether this contention is right.

(3.) Now as pointed out in Subbiah Choudhury ( AIR 1957 SC 540 ) which has been followed in several subsequent cases) the right of appeal is a substantive right and not a mere matter of procedure and the institution of a suit carries with it the implication that all rights of appeal then in force are preserved till the rest of the career of the suit. That decision also laid down that the right of appeal is a vested right and that it can be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. That principle applies here whether we reckon the commencement of the lis either with reference to the suit or the execution petition (irrespective of the question whether the execution petition is a continuation of the suit or is independent of it), for the execution petition was filed on January 5, 1977, before the commencement of Act 104 of 1976.