NANDA KISHORE MOHARANA Vs. MAHABIR PRASAD LATH

JUDGEMENT

(1.) This appeal has been preferred against the order passed in Misc. Appeal No. 13/3/2 of 1975/76/77 confirming an order dated 23-6-75 passed by the Munsif, Sambalpur in Misc Case No. 19/75, which is a proceeding u/s. 47, C. P. C. arising out of the Execution Case No. 34/72. The respondent in this appeal filed that Execution Case for the execution of the order passed in H. R. C. Case No. 32/62. The appellant herein opposed the execution of the said order end on that objection Misc. Case No. 19/75 was registered. The executing court, however, dismissed the said objection. Being aggrieved by the Said order the appellant preferred Misc. Appeal No. 13/3/2 of 1975/76/77 before the District Judge, Sambalpur on 4-7-75. The said appeal also was dismissed by the Additional District Judge, Sambalpur. The appellant has preferred this appeal against the said appellate order.

(2.) Mr. Jain, the learned counsel for the respondent, at the outset challenged the maintainability of this appeal on the ground that by the amendment of the Code of Civil Procedure In the year 1976, orders passed u/s. 47, C.P.C. would not be deemed to be decree under the Civil Procedure Code, and so the appellant could not prefer this appeal against the order of the court below determining a question u/S. 47, C.P.C. The said contention was advanced without noticing the provisions of S. 97 (2) of the Civil Procedure Amendment Act, 1976 (Act 104 of 1976) (hereinafter referred to as the 'Amendment Act'), and S. 6 of the General Clauses Act (Central) (Act X of 1897), Cl. (a) of sub-sec. (2) of S. 97 of the Amendment Act provides as follows:

(3.) The only ground on which the execution of the final order passed in H. R. C. case No. 32/62 is opposed is that the said application for execution is barred by limitation as it was presented beyond the time prescribed under the Limitation Act.