1979 (9) TMI 192 - HC - Indian Laws

Appeal rights limited by amendments to Civil Procedure Code; clarification on accrual date for appeal rights

Pratap Narain Agarwal Versus Ram Narain Agarwal and Ors.

The court held that the right to appeal against orders under Section 47 of the Civil Procedure Code was affected by the amendments introduced by the ... - Issues Involved:1. Maintainability of the appeal under the amended Section 2(2) of the Civil Procedure Code (CPC) and Section 97(2)(a) of the Amending Act 1976.2. Applicability of Section 97(2) of the Amending Act to appeals pending or rights accrued before the Act's enforcement.3. Determination of when the right to file an appeal against orders under Section 47 of the CPC accrues.Detailed Analysis:Issue 1: Maintainability of the AppealThe core issue was whether the right to appeal against an order under Section 47 of the CPC remained unaffected by the amendments introduced by the Amending Act 1976. The court noted that the original definition of 'decree' in Section 2(2) of the CPC included orders under Section 47, thereby allowing appeals against such orders. However, the Amending Act 1976 removed 'Section 47' from the definition of 'decree,' effectively rendering orders under Section 47 non-appealable. The court emphasized that the legislative intent was to minimize delays in execution proceedings by eliminating frivolous objections, which often prolonged litigation. Therefore, the court concluded that the amendment aimed to retrospectively affect vested rights, making orders under Section 47 non-appealable.Issue 2: Applicability of Section 97(2) of the Amending ActThe court examined whether Section 97(2) preserved the right of appeal for orders under Section 47 in cases where the right to appeal had accrued before the Amending Act's enforcement. It was determined that Section 97(2)(a) preserved the right to appeal only for appeals that were pending at the time the Amending Act came into force or where the orders on objections under Section 47 had already been passed. The court clarified that the language of Section 97(2)(a) did not extend to pending execution applications where no appeal had yet been filed. The court interpreted that the legislative intent was to save appeals where decrees had already been passed, not to preserve the right to appeal for all pending execution applications.Issue 3: Accrual of the Right to File an AppealThe court addressed when the right to file an appeal against orders under Section 47 accrues. It reaffirmed that the right to appeal is a vested right that accrues on the date of filing the execution application, not the date of the original suit. The court cited precedents, including the Supreme Court's decision in Garikapati v. Subbiah Choudhry, which established that the right of appeal is substantive and not merely procedural. The court also referred to a Full Bench decision of the Allahabad High Court in Pratap Narain Agarwal v. Ragho Prasad, which held that the right of appeal in execution matters accrues on the date of the execution application.ConclusionThe court answered the referred questions as follows:1. The right to appeal against an order under Section 47 of the CPC is not preserved by Section 97(2)(a) of the Amending Act 1976.2. Section 97(2)(a) preserves the right of appeal only for appeals pending on the date of the Amending Act's enforcement and for orders on objections under Section 47 passed before the Act's enforcement.3. The right to file an appeal against orders under Section 47 accrues on the date of filing the execution application.The case was directed to be laid before the appropriate Bench with these answers.