Karam Singh vs Kirpal Singh

R.N. Mittal, J.—Briefly, the facts are that a decree for possession by redemption was passed against the Petitioner by Subordinate Judge, Ludhiana, on September 19, 1974 The decree holder started executing the decree on March, 10, 1978(sic). The Petitioner filed objections against the execution to the effect that the decree had been partially satisfied The learned executing court after recording the statement of the Bailiff held, that the decree had been fully satisfied and consequently it dismissed the execution petition. The decree holder filed an appeal before the District Judge, Ludhiana. At the time of hearing, the counsel for the judgment debtor raised an objection that the order u/s 47 of the CPC was not appealable and consequently the appeal was liable to be dismissed. The District Judge, held that the appeal was maintainable. He accepted it and remanded the case to the executing court. The judgment debtor has come up in revision against the order of the District Judge to this Court. [Para 3]

The only question that arises for determination is as to whether an appeal was maintainable against the order of the executing court deciding the objections u/s 47 of the Code of Civil Procrdure. The counsel for the Petitioner has vehemently urged that the definition of word ''decree'' has been modified and the orders passed u/s 47 of the Code have been taken out of the purview of the definition According to the counsel on account of the said change the order u/s 47 is not appealable u/s 96 of the Code, which provides an appeal against a decree On the other hand, the learned Counsel for the Respondent has submitted that a reading of Section 99 A of the Code goes to show that an order u/s 47 is appealable to the extent provided in that section.

I have heard the learned Counsel for the parties at a considerable length and agree with the contention of the counsel for the Petitioner Prior to(sic) the naming of the CPC (Amendment) Act, 1976, Thereinafter referred to as the Amendment Act) the word '' decree '' as defined in Section 20(sic) included the determination of question within Section 47 of the Code. Section 96 provided appeals from the original decrees Under the said Section an appeal was maintainable from every decree passed by the Court exercising original jnrisdiction to the Court authorised to hear appeals from the decisions of such Court It the definition of the word '' decree '' before the amendment is read with Section 96, it is evident that the order deciding objections u/s 7 is appealable u/s 96 After passing of the Amendment Act, the position has changed By the Amendment Act the definition of the word '' decree " has been amended and the words that it shall include the determinatior of any question within Section 47 have been deleted from it The result is that now no appeal lies u/s 9 against the orders determining question- within Section 47 It is an established principle of law that appeal is a creation of statute and unless power to file an appeal is given by it no appeal can be maintained. In these circumstances in my view, after the passing of the Amendment Act. no anneal is maintainable against an order passed in proceedings u/s 47 of the Code.

The learned Counsel for the Respondent referred to Section 99 A of the Code which was added by the Amendment Act. It is as follows:

99A. No order u/s 47 to be reversed or modified unless decision of the case in prejudicially affected:Without prejudice to the generality of the previsions of Section 99, no order u/s 4 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.

From a reading of the Section it is clear that it does not provide an appeal againat an order u/s 47. I have already held that no appeal is maintainable against an order u/s 47 Therefore, the Section appears to be a superflous one. The reason as to how it finds place in the Code has been given in the Law of CPC by S. S Sarkar Sith Edition, at page 240 The relevant part is as follow-

S. 99A was inserted in the original bill on the recommendation of Law Commission (vide 54th Report, P. 74) adopting the principles of S. 99 specifically with regard to appeals against final orders u/s 47. Joint Committee recommended amendment of the definition of "decree " in Section 2(2) by excluding thereform determination of any question u/s 47" to make the final order u/s 47 nonappealable in order to reduce delay in the execution of decree, but did not recommend any consequential amendment to delete(sic) this section ; and Bill as such was passed by the Legislature. The result has been that, as there will be no appeal against final order u/s 47, this section remains in the statute as otiose serving no useful function.

After taking into consideration the aforesaid circumstances, 1 am of the view that Section 99A does not entitle a party to file an appeal against an order u/s 47 of the said Code Consequently, the finding of the learned District Judge that an appeal is maintainable against such an order is not correct and I reverse it.

In view of the fact that the District Judge had no jurisdiction to entertain the appeal, the course open for him was to return the memorandum of appeal to the Appellant.

for the reasons recorded above, I accept the revision petition and set aside the order of the District Judge. In the eircumstances of the case, I, however, make no order as to costs.