R SUNDARESAN Vs. A RAMACHANDRAN AND COMPANY

JUDGEMENT

(1.) THE question of the maintainability of an appeal under section 25 of the Tamil Nadu Debt Relief Act, 1979 (XL of 1979) arises for consideration in this matter under the following circumstances. THE appellants filed I A No 1239 of 1974 in O. S. No. 119 of 1971, Principal Sub-Court, Salem, under sections 14 (2) and 16 of the Tamil Nadu Debt Relief Act, 1979 (XL of 1979), praying for setting aside the ex parte decree dated 14th June, 1971, as null and void and also for an amendment of the decree. THE application was dismissed by the learned Principal Subordinate Judge, Salem , by his order dated 24th December, 1980. Against that order, the appellants preferred a Civil Miscellaneous Appeal under section 25 of the Tamil Nadu Debt Relief Act, 1979 (XL of 1979) THE office returned the papers raising a question as to how the Civil Miscellaneous appeal is maintainable and requiring the counsel for the appellants to furnish any authority in support of the maintainability of the appeal. THE papers were thereafter re-presented stating that the appeal would lie as per section 25 of the Tamil Nadu Debt Relief Act, 1979 (XL of 1979 ). THE office nevertheless entertained doubt whether in view of the amendment of section 2 (2), Code of civil Procedure, by Act CIV of 1976 the adjudication on an application under section 14 (2) and 6 of the Tamil Nadu Debt Relief Act, 1979 (XL of 1979) would still be deemed to be a decree within the meaning of section 47, Code of Civil procedure and appealable as such under section 25 of the Tamil Nadu Debt Relief act, 1979 (XL of 1979 ). Section 25 (1) of the Tamil Nadu Debt Relief Act, 1979 (XL of 1979) so far as it is relevant purpose, reads as follows: 'an appeal shall lie from any of the following orders passed by a Court under this Act, as if such order related to the execution discharge or satisfaction of a decree within the meaning of section 7 of the Code of Civil Procedure, 1908 (Central Act V of 1908 ).' Under section 25 (1) (a) to (g) orders passed under certain provisions of the Tamil Nadu Debt Relief Act, 1979 (XL of 1979) have been made appealable. THE order in the present case would fall under section 25 (1) (b ). Section 25 (2) provides for a second appeal on the grounds mentioned in subsection (1) of section 100 of the Code of Civil Procedure, 1908 and that section reads as under: 'from any order passed on an appeal presented to it under the provisions of sub-section (1) by Court subordinate to the High court an appeal shall lie to the High Court on any of the grounds mentioned in sub-section (1) of section 100 of the Code of Civil Procedure, 1908 (Central act V of 1908 ).' That under section 25 (1) of the Tamil Nadu Debt Relief act, 1979 (XL of 1979), the legislature thought fit to confer a right of appeal in matters falling under section 25 (1) (a) to (g) is very clear. THE question is, whether as a result of the amendment of section 2 (2), Code of Civil procedure, deleting from the scope of the definition of a decree an adjudication under section 47, Code of Civil Procedure, the right of appeal is in any manner curtailed. THE argument raised against the maintainability of the appeal is that only by reference to section 47, Code of Civil Procedure, the effect of an adjudication under the Act is equated to that of a decree and when an adjudication under section 47. Code of Civil Procedure cannot itself be a decree within the meaning of section 2 (2), Code of Civil Procedure, as a result of the amendment introduced by Act CIV of 1976 the appeal would be incompetent Though the provisions of the Tamil Nadu Debt Relief Act, 1979 (XL of 1979) were passed and also published after the amendments to the Code of civil Procedure were effected by Act CIV of 1976, yet the legislature thought fit to confer the right of appeal under section 25 (1) of the Tamil Nadu Debt relief Act, 1979 (XL of 1979) as if the adjudication under certain provisions of the Act amounted to a decree within the meaning of section 47, Code of Civil procedure. In cannot be assumed that the legislature was unaware of the amendments made to the Code of Civil Procedure by Act CIV of 1976. But yet, the right of appeal under section 25 (1) of the Tamil Nadu Debt Relief Act, 1979 (XL of 1979) has been conferred against a class of adjudications, as if the adjudication related to the execution, discharge or satisfaction of a decree within the meaning of section 47, Code of Civil Procedure.

(2.) STEMMING from a statute, a right of appeal is a substantive right and any provision conferring such a right should be interpreted with a liberality which would favour an appeal being entertained rather than a stringency that would defeat it. The words of section 25 of the tamil Nadu Debt Relief Act, 1979 (XL of 1979) are clear and in favour of an appeal and there is no ambiguity. The use of the words "as if such order related to the execution, discharge or satisfaction of a decree within the meaning of section 47 of the Code of Civil Procedure clearly indicates that as a result of a fiction the effect of an adjudication under the provisions of the act is placed on a par with that of a decree which, otherwise it is not. In corpus Juris, Volume 25, page 1036 fiction is defined as under: "a legal assumption that a taking is true which is either not true or which is probably false as true; as assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place, an allegation in legal proceedings that does not accord with the actual facts of the case, and which may be contradicted for every purpose, except to defeat the beneficial and tor which the fiction is invented and allowed. "