GOPALDAS AGRAWAL Vs. PHOOLCHAND GARG

JUDGEMENT

(1.) "judiciary is respected not on account of its powers to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. " (Collector, Land Acquisition v. Smt. Katiji, infra ). This is the beacon light which must be held high while crossing the cross-roads of this case. The appellants make a call for justice mercifully praying that they should at least be heard, posing a question, would anyone anywhere hear them? The respondents rely on technicalities but forcefully submit that law supports their stand to contend that the appellants must be rebuffed at the threshold.

(2.) BEFORE the executing Court, the appellants herein being judgment-debtors, raised certain objections to the executability of the decree submitting that the decree-holder had received a few amount which the appellants were entitled to adjust. The executing Court held on 24-3-1979 that the objections could not be entertained in view of the payments having not been certified in accordance with Order 21, Rule 2, Civil Procedure Code. The objections were pending at least since 1975. The decree and the execution application were of dates much before.

(3.) DURING the pendency of the abovesaid proceedings the Code of Civil Procedure underwent substantial changes by virtue of Civil Procedure Code (Amendment) Act, 1976 (Act No. 104 of 1976 ). The definition of "decree" in section 2 (2) was amended deleting sub-section (2) of section 47, Civil Procedure Code with the effect of taking away the right of appeal from orders in execution proceedings. The appellants, as advised, preferred a revision petition to this Court, registered as C. R. No. 424/89. The revision was filed on 25-6-1989. It was admitted for hearing parties. On 2-8-1979 came a Division Bench decision of this Court in Chuluram v. Bhagatram, 1980 MPLJ 37 = 1979 JLJ 730 published in November issue of Jabalpur Law Journal holding that an order determining objections in execution of a decree made prior to enforcement of the amendment would continue to be appealable though the order was passed after the amendment came into force. When the case came up for hearing on 29-1-1980, this Court expressed an opinion that the question was still res integra because of a reference made to a Full Bench in another Civil Revision of this Court and the decision of the Full Bench was to be awaited. That Civil Revision came to be decided by a Division Bench only, on 4-4-1980 reaffirming the earlier view. Hence, on 29-4-1980 when this revision came up for hearing, it was dismissed as not maintainable in view of the Division Bench decisions having settled the law on the point.