TaxTMI 
TaxTMI 
1979 (9) TMI 192
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....ppeals pending on the date on which the Amending Act came into force or does it permit appeals in cases where the right to file the same had accrued before coming into force of that Act ? 3. If it is held that Section 97 (2) saves the right of appeal against order passed under Section 47 of the Code also in cases where the right to file the same had accrued before coming into force of the Amending Act, when does the right to file an appeal against such orders accrue ? 2. For deciding the aforesaid questions, a brief reference to the facts is necessary. Ram Narain Agarwal, plaintiff-respondent, filed a suit against Pratap Narain and others for dissolution of partnership, rendition of accounts, and winding up of the affairs of the firm M/s. Agarwal Ice Factory, Ahmedabad. Certain orders were passed in the suit. Against those orders, three First Appeals from Orders were preferred in this Court. These appeals were numbered 31 of 1971, 196 of 1972 and 197 of 1975. In these appeals, on 21-1-1975, the parties entered into a compromise. The compromise was verified and, thereafter, the appeals were decided in terms of the compromise, which was directed to form part of the decree. 3....
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....his definition, a decree is deemed to include the determination of any question falling under Section 47, Civil P. C. although the determination of the said question is neither in a suit nor is drawn up in the form of a decree. Undoubtedly, the execution proceeding is not a suit but the combined effect of Section 2(2) and Section 47 was that an order passed in execution proceedings was tantamount to a decree in so far as it conclusively determined the question arising between the parties relating to the execution of the decree, Hence, if an order decided a question relating to the right's and liabilities of the parties, with reference to the relief granted by the decree, it fell under Section 47 and amounted to a 'decree' within the meaning of Sub-section (2) of Section 2. The definition of Section 2(2) takes in both an order under Section 47 and that made under Section 144. The two sections are included for the purpose of giving a right of appeal (See Mahijibhai v. Manibhai, AIR 1965 SC 1477, para 28). Accordingly, as an order dismissing an objection amounted to a decree, an appeal lay under Section 96 of the Code against such an order. 7. In its Twentyseventh Repor....
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....pon the passing of the Act, the words and figure "Section 41 or" from Section 2 (2) have been omitted by the Civil P. C. (Amendment) Act, 1976. Section 99-A, as incorporated in the Civil P. C. now, reads: "Without prejudice to the generality of the provisions of Section 99, no order under Section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case." 10. As already noticed above, the submission of the plaintiff-respondent was that as the order dismissing the objection of the defendant-appellant under Section 47 of the Civil P. C. does not now amount to a decree, the appeal filed was incompetent. It was contended that since an appeal under Section 96, Civil P. C. lies against a decree and the impugned order did not amount to the same, the appeal should be dismissed. 11. Controverting the above submission of the counsel for the plaintiff-respondent, the defendant-appellant contended that in spite of the amendment of the definition of the term "decree", deleting Section 47, an appeal against an order u....
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....antive right and not merely of procedure came up for decision before the Supreme Court in Garikapati v. Subbiah Choudhry (AIR 1957 SC 540). After discussing the cases decided by various Courts, the Supreme Court found amongst others, the following principles which emerged from those decisions. (1) The right of appeal is not a mere matter of procedure, but is a substantive right, (2) The institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit, and (3) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when adverse judgment is pronounced. A vested right of appeal can be taken away by a subsequent enactment, if it so provided expressly or by necessary intendment and not otherwise. 14. This decision of the Supreme Court has been followed in subsequent decisions given by the Supreme Court itself. The position of law thus being settled, it is not necessary for us to refer to those cases. 15. So far as execution is con....
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....ercised only in the manner prescribed. 19. As already pointed out above, the legislature has authority to abridge a right to appeal at its discretion. Tha legislature may take away the right of appeal. 20. We are now required to see as to whether there is, in the instant case, any provision made in Act 104 of 1976, which leads us to the conclusion that the right had been taken away. We have already pointed out that by the (Amending Act) definition of the expression 'decree' has been amended. As a consequence, an order passed on an objection under Section 47 ceases to be a 'decree'. As the order ceases to be a decree, it could not be appealed against. The provision amending Section 2 (2) was applied to the execution proceedings, without any reservation. We have already referred to the object with which Section 2 (2) was amended. From its experience, the legislature had gathered that frivolous objections used to be filed to the execution of decree and the same had the tendency to prolong the litigation unduly. By filing objections, the judgment-debtors could successfully delay the execution. Accordingly, Section 2 (2) was amended for the purposes of meeting the ....
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....o force. 24. In the instant case, admittedly, the appeal had not been filed before the Amending Act came into force. Hence, out of the two categories made by the learned counsel, the first category should not apply. So far as the second category is concerned, we are not in agreement with his submission that in all cases where execution applications had been filed before Act 104 of 1976 came into force, the right to appeal had been preserved. On the interpretation of Clause (a) of Section 97 (2) there is no dispute about the proposition that the pending appeals at the time of enforcement of the Act had been saved under it, but it does not appear correct that in all pending execution applications the right to appeal is preserved even in respect of a pending application on the date of enforcement of the said Act. The language of Section 97 (2) (a) does not permit such an interpretation. Under this clause, the amendment made in Section 2 (2) of the principal Act does not affect any appeal against the determination of any question as is referred to in Section 47, The expression "shall not affect any appeal", in our opinion, does not take within its sweep even the cases where executio....
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....ending action, but since in this case the language employed in the Amending Clause leads us to the inescapable conclusion that it will have retrospective effect, covering the pending cases as well, we are compelled to do so. Any other interpretation placed on the amendment of Section 2 (2) is likely to defeat the object and purpose of the Act. The Court is required to interpret a law in the manner that it gives effect to the object and does not defeat it. 28. The argument of Sri Rajeshwari Prasad, in fact, would mean that the appellant had a right to appeal despite the amendment made in Section 97 (2) (a). The submission made is untenable. A saving clause has a limited role to play, It was observed by Wook V. C. in Fizgerald v. Champneys (1861) 70 ER 958, that saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others to safeguard rights which, but for the savings would be lost. If we were to keep the above settled proposition of law in mind, the argument of Sri Rajeshwari Prasad would be liable to be repelled. His reading of Section 97 (2) (a) was to the effect which conferred on the appellant the right to file an appeal. As obse....
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....hat date due to a decree coming into existence. It is not true of Clauses (j), (k), (m), (n), (o), which provide for different contingencies. 31. Another argument advanced was about the incorporation of Section 99-A. Counsel contended that if the legislature did not intend to preserve the right of appeal, as it existed before the enforcement of Act 104 of 1976, it would not have enacted Section 99-A. According to counsel's contention, Section 99-A would be rendered redundant if the interpretation placed on behalf of the plaintiff-respondent was accepted. He urged that one of the principles of construction being that the Court should interpret a law avoiding redundancy, the Court should hold that the right of appeal is not affected because of the amendment made in Section 2(2) of the Civil P. C. In this connection, counsel also pointed out that the fact that Section 99-A is to be found in Part VII which deals with "appeals", the Court must hold that the appeals have still been preserved. 32. We are unable to find any substance. It has already been pointed out above that incorporation of Section 99-A had been pressed by the Law Commission. At the time of the proposal for in....