BHAGANU Vs. KALLOO YADAVA AND

JUDGEMENT

(1.) THIS revision has been filed against the appellate order of the District Judge. Varanasi dated November 7, 1977 passed in proceedings under Section 47 of the Code of Civil Procedure. The applicant filed an objection under Section 47, C.P.C. in execution proceedings to the effect that the plaintiff respondents decree holders did not claim any relief in respect of house No. 32/128 of which the applicant was the owner in possession and as such the decree holders have no right to get the decree executed against the instant house. The trial court allowed the objections of the applicant on March 31, 1977 and directed the decree holders to seek execution only with respect to house No. D32/129 and not against house No. D 32/128. The decree holders filed an appeal before the lower appellate court being Execution Civil Appeal No. 222 of 1977 under Section 96, C.P.C. The District Judge, Varanasi. by his order dated November 7, 1977 set aside the order of the executing court and directed the execution to proceed. The objections filed under Section 47, C.P.C. v/ere rejected. Against the order rejecting the objections under Section 47, C.P.C. the present civil revision has been filed in this Court. Before the District Judge an objection was taken to the effect that no appeal lies against the order of the execution court allowing the objections under Section 47, C.P.C. in view of the Code of Civil Procedure (Amendment) Act, 1976. The District Judge rejected this contention and held that the appeal was maintainable. In the present revision the only question that has been urged by the learned counsel for the applicant is that no appeal was maintainable against the order of the executing court dated March 31, 1977 and as such the District Judge, Varanasi, had no jurisdiction to pass the order dated November 7, 1977. The learned counsel has; placed reliance on the provisions of Section 97, sub-clause (3) of the Civil Procedure Code (Amendment) Act, 1976, Act No. 104 of 1976. Prior to the coming into force of the Civil Procedure Code (Amendment) Act, 1976, hereinafter referred to as the amending Act, an order determining any question under Section 47, C.P.C. was included in the definition of the word 'decree' as defined in Section 2, sub-section (2) 'of the Code. Since an order determining a question under Section 47, C. P. C. was a decree an appeal lay under Section 96, C.P.C. against the said order. By the amending Act the definition of the word 'decree' has been amended and 'the determination of any question under Section 47, C.P.C.' has now been taken out of the definition of decree. In the circumstances an order determining a question under Section 47, C P.C. is no longer a decree. Since such an order is no longer a decree under the Code as amended no appeal lies against the said order. The argument of the learned counsel for the respondents is, however, to the effect that since the execution proceedings were pending before the date of the enforcement of the amending Act he had a vested right to file an appeal and the amending Act cannot take away his vested right. It is admitted on record that the proceedings for execution and the objections under Section 47, C.P.C. were pending on the data the amending Act came into force. The order allowing the objections under Section 47, C.P.C, was, however, passed on March 31, 1977, after the enforcement of the amending Act. The question, therefore, which arises is as to whether in a case where objections under Section 47, C.P.C. are pending on the date of the amending Act but the actual order is passed adjudicating on the said objections after the amending Act an appeal lies or not. In Colonial Sugar Refining Co. v. Irving (1905 A.C. 369), the Privy Council as far back as 1905 laid down the principle that the right of appeal is a substantive right and not a matter of procedure and hence a statute taking away the right cannot act retrospectively unless there was a clear intention to the contrary. The Privy Council had observed as follows: - "To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from, regulating procedure. In principle, 'their Lordship see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is no interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." THIS question came up for consideration before the Supreme Court in Garikpati v. Subbiah Choudhry (A.I.R. 1957 S.C. 540). The Supreme Court examined this principle in detail. It accepted the principle laid down by the Privy Council in Colonial Sugar Refining Co.'s case (1) and ultimately after analysing the various cases laid down the following principles: - "(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the; parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the his commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing and not by the law that prevails at the date of its decision or at the date of filing of the appeal. (v) THIS vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise." In view of the above principles of law laid down by the Supreme Court the vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. I have, therefore, to examine as to whether by the amending Act the vested right of appeal has been taken away expressly or by necessary intendment. Section 97, sub-clause (3) of the amending Act provides as follows: - "Save as otherwise provided in sub-section (2), the provisions of the Principal 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." In view of this provision all pending proceedings would be governed by the Code as amended by the Act save those proceedings which have been excepted by sub-section (2) of the said section. The relevant clause of sub-section (2) of Section 97 of the amending Act is clause (a), which is in the following terms: - "the amendment made to clause (2) of Section 2 of the Principal Act by Section 3 of this Act shall not affect any appeal, against the determination of any such question as is referred to in Section 47 and every such appeal shall be dealt with as if the said Section 3 had not come into force." The clause (a) reserves the appeals which were pending on the date when the amending Act came into force and it lays down that they have to be dealt with as if the definition of decree in Section 2 of sub-section (2) remained unchanged. It has been urged by the counsel for the respondents that since the Parliament has omitted the word 'pending' in this clause this clause excepts all appeals and not only pending appeals. If this submission of the learned counsel is accepted then the definition of the 'decree' as amended by Section 3 if the amending Act would never be effective. In that event an appeal would always lie against a determination of any question under Section 47 C.P.C. and there will be no purpose behind amending the definition of the word 'decree' in sub-section (2) of Section 2 of the Code. An interpretation which would "make the amendment nugatory cannot be accepted. The obvious intention of the Parliament to restrict the right of appeal at the execution stage would be defeated. In M. Pentish v. Veeramallappa (A.I.R. 1961 S.C. 1107) Subba Rao, J. delivering the judgment for the Court has accepted the principle that while interpreting a statute a construction should be avoided which would reduce the legislation to futility. It was stated as follows: - "Before we consider this argument in some detail, it will be convenient at this stage to notice some of the well established rules of construction which would help us to steer clear of the complications created by the Act. Maxwell 'On the Interpretation of Statutes'. 10th Edn., says at p. 7 thus: '........If the choice is between two interpretations, the narrower of which would fall to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result'." In my opinion, therefore, the word 'appeal' in this clause refers to only pending appeals. In this view of the matter I am of the opinion that the amending Act expressly and by necessary intendment only preserved the right of appeal in those cases where the appeal was pending on the date when the amending Act came into force and the right to file an appeal in other cases was taken away. Consequently, no appeal lies against the order dated March 31, 1977 determining questions under Section 47, C.P.C. since the order was passed after February 1, 1977 when the amending Act came into force. In the result the revision is allowed and the order of the District Judge dated November 7, 1977 is set aside. Parties are directed to bear their own costs.