BABULAL Vs. RAMESH BABU GUPTA

JUDGEMENT

(1.) This Order will also govern the disposal of Misc. petitions Nos.442/89 (Moolchand and another v. Ramesh Babu Gupta and others) and 443/89 (Mansharam Lahariya and 3 others v. Ramesh Babu Gupta and two others).

(2.) In all these three petitions under Art.227 of the Constitution of India, the sole question for determination is as to whether the amendment brought about in S.2(9) of the Code of Civil Procedure 1908 (old Code), as amended by the Civil Procedure Code (amendment) Act (Act No.104 of 1976) by which determination of any question u/s. 47 does not now amount to a decree, can be construed to take away a right of appeal in pending execution cases. Two of the decisions of this Court in case of Chuluram v. Bhagatram, AIR 1980 Madh Pra 16 and Sitaram v. Chaturo, 1981 Jab LJ 171 have taken the view that such a right of appeal, being a vested right, could not be taken away and in orders passed u/s 47 of the Code of Civil Procedure which were levied in execution proceedings before the coming into force of the Amending Act could not be taken away and, therefore, the orders would be appealable.

(3.) It is noteworthy to be mentioned that the Amending Act came into force on the 1st February 1977. The correctness of the said two decisions having been doubted, the question has been referred to a Full Bench. Hence this matter before us.