SITARAM Vs. CHATURO

JUDGEMENT

(1.) IN this Civil revision the following question of law has been referred by a learned single Judge :

(2.) THIS revision by the decree holders is directed against an order dated 19th January 1979 passed by the First Additional District Judge, Guna, dismissing their appeal against the order dated 7th November 1977 passed by the executing Court on the ground that the appeal was not maintainable under section 47 of the Code of Civil Procedure as amended by the CPC (Amendment) Act. 1976 (Act No 104 of 1976). When the revision came up for hearing before the learned single Judge it was contended by the applicants that the appeal was maintainable before the Additional District Judge under section 47 although the order of the executing Court was passed after the coming into force of the amending Act for the reason that the execution proceeding in which the said order was passed was pending at the time of the commencement of the amending Act. The learned counsel for the applicants relied upon a ruling of this Court in Chuluram v. Bhagatram ( : 1979 JLJ 730). The learned counsel for the non -applicants contested the correctness of that ruling on the ground that section 97 (3) of the amending Act was not considered in the said ruling. In view of this argument of the learned counsel for the non -applicants, the learned single Judge referred the question of law set out above to an appropriate Bench. This is how the revision has come up before us.

(3.) IT is now well settled that a right or appeal against a decree or order accrues and vests in the suit or at the time of the institution of the proceeding in which the decree or order is passed. There it a very strong presumption that this vested right of appeal in pending proceedings it not taken away by a change in law relating to appeals. In view of this presumption a change in law restricting or abolishing appeals it not interpreted to apply to pending proceedings unless the legislature expressly or by necessary intendment provides to the contrary and the mere fact that if the change in law is not applied to appeals arising from pending proceedings, the object of curtailing the appeals would not be immediately achieved, is by itself insufficient to show a contrary intention. The leading Indian case laying down these principles it Garikapati Subbiah Choudhry ( : AIR 1957 SC 540 at p. 553) In Garikapati's case it was held that in suits filed in British India before the date of the coming into force of the Constitution an appeal lay to the Supreme Court against a decision of the High Court rendered after that date, if the suit satisfied the requirement of valuation of appealing to the privy Council or the Federal Court according to the law in force on the date of institution of the suit, although it did not satisfy the requirement of valuation as laid in Article 133 of the Constitution. It was argued in that case that such a construction would make Article 133 virtually a dead letter for many years to come. In repelling the argument it was observed by the Supreme Court that such a consideration should not deter the Court in giving effect to the vested rights of appeal (p 561 para 40) The principle laid down and the rule of construction applied in Garikapati's ease were reaffirmed in subsequent cases. Stale of Bombay v. M/s. S. G. Films Exchance ( : AIR 1960 SC 980) and Kasibai v. Mahadu ( : AIR 1965 SC 703) It is in the background of these principles that one has to consider whether the amending Act has taken away the right of appeal which vested in a party in pending executions.