MOHANLAL MANKELAL SHAH Vs. BAI MANIBEN

JUDGEMENT

(1.) . This second appeal is filed by the original judgment debtor being defendant in regular Civil Suit No. 12 of 1969 wherein tie respondent-decree-holder had obtained decree for Rs. 6182 56-P. For execution of the said decree Regular Darkhast No. 60 of 197 was field by the respondent in the Court of the Civil Judge J. D. Godhra. The said Darkhast came to be dismissed by the executing Court on 16-12-76. Against that order the respondent-decree-holder filed appeal No. 21 of 1977 in the District Court at Godhra on 7-3-1977. The said appeal was registered on the same day and it came to be allowed on 25-1-78 by the learned District Judge Panchmahals at Godhra. The learned District Judge has set aside the order of the executing Court and remanded the Darkhast for further proceeding to the executing Court. It is this order which has been challenged by the judgment-debtor in this second appeal. This appeal was filed after the Code of Civil Procedure stood amended and in view of the Code of Civil Procedure amendment Act 1976 every substantial question of law was required to be framed and certified by the learned admitting Judge and accordingly two substantial questions of law have been framed at the stage of admission. They are as under :

(2.) MR. Desais argument on the point of jurisdiction proceeds as under: Once sec 2 (2) of the Code of Civil Procedure is amended by deletion of the word under sec. 47 no order in execution would have the force of decree and consequently no first appeal would lie to the District Court in execution proceedings and consequently the order of the appellate Court is a null and void order and is without jurisdiction. MR. Desai submitted that the word decree as originally defined under sec. 2 (2) of the C. P. Code before its amendment included reference to sec. 47. Any order under sec. 47 was deemed to be a decree and consequently it was subject to first appeal under sec. 96 and Second Appeal under sec. 100 C. P. C. as it stood then. By the Code of Civil Procedure Amendment Act 1976 which was brought in force on 1-2-77 reference to sec. 47 was omitted from the definition of the word decree under sec. 2 (2) of the C. P. C. with the result that on and after 1-2-77 no order of any executing Court can be deemed to be a decree for the purpose of appealability against it. Sec. 97 is a saving provision found in the same amending Act. Sec. 97 of the Code of Civil Procedure Amendment Act 1976 reads as under: