RAMESHKUMAR SWARUPCHAND SANCHETI Vs. RAMESHWAR VALLABHRAM BHATWAL

JUDGEMENT

(1.) The present petitioners-plaintiffs filed ejectment suit in the year 1967 and the decree came to be passed in the said suit on 30th October, 1968. In appeal to District Court the said decree was reversed and therefore, the original plaintiffs filed writ petition before this Court bearing Special Civil Application No. 1991 of 1975 which came to be decided on 21st February, 1981. The High Court reversed the order passed by the Appellate Court and confirmed the judgment and decree passed by the trail Court. It then appears that thereafter a Special Leave Petition bearing No. 6041 of 1980 was filed before the Supreme Court which came to be rejected on 29th October, 1980. During the pendency of the Special Leave Petition before the Supreme Court a Darkhast for execution of the decree was filed by the plaintiffs-decree holders on 10th of July, 1980. The Supreme Court while rejecting the said Special Leave Petition on 29th of October, 1980 granted time to respondents to deliver possession of the premises by 29th April, 1981. In the execution proceedings the plaintiffs filed three applications i.e. Exhibits 54, 55 and 57. Exhibits 55 and 57 came to be dismissed by the learned Civil Judge, (Junior Division) Chalisgoan by this order dated 18th September, 1981. Against this decision Civil Revision Application No. 1007 of 1981 is filed. Exhibit 54 was partly allowed by the trail Court i.e. the learned Civil Judge (Junior Division), Chalisgoan on 18th September, 1981. This application was filed for issuance of possession warrant qua certain articles. The prayer made therein was partly allowed and was partly rejected. The plaintiff had filed the Civil Revision Application No. 1008 of 1981 against the partial rejection of his application Exhibit 54. When both these matters were placed before the learned Single Judge of this Court (Masodkar, J.) a contention was raised before him that these revision petition are not maintainable and the plaintiffs should have filed appeals against the impugned orders. In support of this contention reliance was placed upon the decision of the Single Judge of this Court i.e. Tulpule, J., which is reported in Notes of cases (Note No. 1) in 1979 Mh.L.J. (Ibrahim Khan v Kasaipura Bunch Bungla Trust)1. On the other hand the petitioners plaintiffs relied upon another single Judge decision in (Civil Revision Application No. 104 of 1971 decided on 9th of April, 1979 by Parekh, J.) Since Masodkar J found that there is apparent conflict in these two decisions as well as the view taken by different High Courts with regard to the tenability of the appeal, he referred the matter to the Division Bench. Therefore, these two Civil Revision Applications are placed before us, for deciding the said question.

(2.) Shri Jhaveri, the learned Counsel appearing for the petitioners plaintiffs contended that in view of the amendment to section 2(2) of the Code of Civil Procedure by Amending Act 104 of 1976 which came into force on 1st of February, 1977 an appeal against the impugned order is not maintainable and therefore, the plaintiffs have rightly filed these civil revision applications. In support of this contentions he has placed reliance upon the Full Bench decisions of the Allahabad High Courts in A.I.R. 1980. All. 42 (Pratap Naraian Aggarwal v. Ram Naraian Agarwal and others) decision of Rajasthan High Court in A.I.R, 1978 Raj. 127, (Mohan Das and others v Kamla Devi) decision of the Kerala High Court in A.I.R. 1978 Kerala 201, (Mohammad Khan v. State Bank of Travancore)and A.I.R. 1981 Kerala 18 (Kuriakose v. P.S. Narayanan Nair) decision of the High Court in A.I.R. 1980 Gauhati 3, (Tapan Chandra Deb Barma and others v. Dulal Chandra Deb Barma and others) decision of Punjab High Court in A.I.R. 1979 Punjab 262 (Ram Niwas v. Mithan Lal and others) decision of Andhra Pradesh High Court in A.I.R. 1980 A.P. 209. (Marriddi Janikamma and others v. Hanumantha Vajjual Paradesi Sarma and others)decision of the Orissa High Court in A.I.R. 1982 Orissa 9, (Mst. Sarabai Agarwalla and others v. Haradhan Mohapatra and others) and a decision of Gujarat High Court in A.I.R. 1982 Gujarat 324 (Hasumatiben v. Ambalal Krishnalal Parikh) as well as decision of Parekh, J., referred to above.

(3.) On the other hand it is contended by Shri Abhyankar that a right to file an appeal has been recognised by the judicial decisions as right which vests in suit or at the time of institution of the original proceedings and any change in law which adversely touches this vested right is presumed not to be retrospective. Such a vested right is saved by section 97(2)(a) of the Amending Act itself. According to Shri Abhyankar the provisions of section 97(3) of the Amending Act are subject to the provisions of section 97(2)(a). Various clauses of section 97 clearly indicate that the rights which are vested in the litigant are wholly saved and the Amending Act has no retrospective effect. In support of this contention Shri Abhyankar has placed reliance upon the decision of Madhya Pradesh High Court in A.I.R. 1981 M.P. 16. (Chuluram v. Bhagatram)decision of Delhi High Court in A.I.R. 1979 Delhi 40, (Syndicate Bank New Delhi v. M/s. Rallies India Ltd. New Delhi) decision of Orissa High Court in A.I.R. 1978 Orissa 129 (Nanda Kishore Moharana v. Mahabir Prasad Lath) decision of the Supreme Court in A.I.R. 1957 S.C. 540, (Garikapati Veeraya v. N. Subiah Choudhry and others) and the decision of Tulpule, J., referred to herein above.