MOHAN DAS Vs. KAMLA DEVI

JUDGEMENT

(1.) THIS special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, is directed against the judgment of the learned Single Judge dated May 9, 1977.

(2.) LEARNED counsel for the respondent-decree-holder has raised preliminary objection that the appeal is not maintainable in view of the provisions of the civil P. C. (Amendment) Act, 1976 (hereinafter referred to as the Amending act), which came into force from Feb. 1, 1977. It was contended that by the amending Act the definition of "decree" in Section 2 (2) of the Civil P. C. has been amended and the words "section 47 or" have been deleted as a result of which any order passed under Section 47 of the Civil P. C. is, therefore, not appealable. It was further contended that the intention of the Amending Act is to shorten the litigation and not to allow it to be prolonged unnecessarily in execution matters. It was further contended that in view of the recent amendment, order passed under Section 47, CPC now does not amount to a decree and. therefore, is not appealable as such. It was further contended that though the right of appeal being a substantive right, and the institution of a suit carries with it the implication that all successive appeals availabale under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are however two exceptions to this rule : (1) when by subsequent enactment such right is taken away expressly or impliedly with retrospective effect; and (2) when the Court to which the appeal lay at the commencement of the suit stands abolished. The contention of the learned counsel for the respondent is that the present amendments in the Code of Civil Procedure clearly exhibit the necessary intendment that the appeals, which were available at the time when the lis commenced, are no longer available to the parties. It was also contended that Section 18 of the Rajasthan high Court Ordinance, 1949, cannot provide a right of appeal in the instant case against the judgment of learned Single Judge because such a right of appeal would be inconsistent with the recent amendments in the Code of Civil procedure and would create anomalous situation. It was also contended that only those appeals are saved under Section 97 (2) (a) of the Amending Act which had been instituted before Feb. 1, 1977. The present appeal was instituted much after the Amending Act had come into force,

(3.) LEARNED counsel for the appellants contended that the present appeal is maintainable as at the time when the lis commenced, the law provided such an appeal. By a subsequent enactment, the substantive right of such appeal cannot be taken away. It was also contended that such an appeal is neither expressly barred, nor such necessary intendment can be inferred which bars the maintainability of such an appeal.