Right of appeal in execution proceedings accrues on filing the execution application, but later amendment can curtail it.

The amendment to Section 2(2) CPC removed the statutory fiction treating orders under Section 47 as decrees, so the right of appeal against such execution orders was curtailed in pending matters. The saving provision in Section 97(2)(a) of the Civil Laws (Amendment) Act, 1976 was confined to appeals already pending or rights that had accrued where a decree had come into existence before the amendment; it did not create any new appellate right. The Court further held that the right to appeal in execution proceedings accrues on the date of filing the execution application, not on the date of the original suit.

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Issues: (i) Whether the amendment to the definition of "decree" in Section 2(2) of the Code of Civil Procedure, 1908 took away the right of appeal against orders passed under Section 47 of the Code in pending execution matters; (ii) whether Section 97(2)(a) of the Civil Laws (Amendment) Act, 1976 preserved appeals only where appeals were already pending or also where the right to appeal had accrued before commencement of the amendment; (iii) when the right to appeal against an order in execution proceedings accrues.

Issue (i): Whether the amendment to the definition of "decree" in Section 2(2) of the Code of Civil Procedure, 1908 took away the right of appeal against orders passed under Section 47 of the Code in pending execution matters.

Analysis: Before the amendment, an order under Section 47 was treated as a decree by the statutory fiction in Section 2(2), and therefore an appeal lay. The amendment omitted the reference to Section 47, showing a legislative intention to stop such orders from being treated as decrees. The change was applied to execution proceedings without reservation, and the legislative purpose was to curtail delays caused by execution objections.

Conclusion: The right of appeal was taken away by the amendment and the first question was answered in the negative, against the appellant.

Issue (ii): Whether Section 97(2)(a) of the Civil Laws (Amendment) Act, 1976 preserved appeals only where appeals were already pending or also where the right to appeal had accrued before commencement of the amendment.

Analysis: The saving clause was construed as preserving accrued rights and pending appeals where a decree had already come into existence before the amendment. It was held that the clause did not create a new right of appeal and could not be read as enlarging the scope of the amendment. Section 6 of the General Clauses Act, 1897 yielded to the contrary intention expressed by the amending provision.

Conclusion: Section 97(2)(a) preserved the right of appeal only in the limited cases covered by it, and the second question was answered in the affirmative only to that extent, against the appellant's wider contention.

Issue (iii): When the right to appeal against an order in execution proceedings accrues.

Analysis: The Court treated execution proceedings as independent of the suit and followed the settled principle that the right of appeal in such matters accrues on the date of filing of the execution application, not on the date of the original suit.

Conclusion: The right to appeal accrues on the date of filing of the execution application and the third question was answered accordingly.

Final Conclusion: The reference was answered by holding that the amended law curtailed the appeal right against Section 47 orders, subject only to the narrow savings recognised by the statute, and that in execution matters the relevant date for accrual of appeal rights is the filing of the execution application.

Ratio Decidendi: A vested right of appeal in execution proceedings accrues on the filing of the execution application, but it may be taken away by a subsequent amendment expressing a contrary legislative intention, and a saving clause cannot be read as creating a new right of appeal.

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