Rongali Ramana vs Gogada Demudu

Honourable Mr. Justice Venkateswara Rao

This revision arises out of proceedings in execution and the judgment debtor is the petitioner before this Court. The respondent, who obtained a decree against the petitioner in O.S. No. 277/75 on the file of the District Munsif, Chodavaram, applied for its execution by arrest and detention of the petitioner in civil prison. This petition, E.P. 162/76, was opposed by the petitioner on the ground that he is a small farmer within the meaning of the Andhra Pradesh Act 7 of 1977 and that the debt due under the decree should therefore be deemed to have been discharged in full as that the decree would abate. The learned District Munsif rejected in Section 3 (t) of Act 7 of 1977 and ordered his arrest. The petitioner thereupon carried the matter in appeal to the Subordinate Judge, Chodavaram. The respondent questioned the maintainability itself of the appeal on the ground that the order sought to be assailed in it is one made u/s 47 of the Code and that since an order made under that Section ceased to be a decree after the amendment of the Code, by C.P.C. (Amendment) Act 104 of 1976, the remedy of appeal is no longer available to the judgment-debtor. This objection found favour with the Court below and the appeal was accordingly dismissed. Hence this petition for revision by the judgment-debtor.

No attempt is made by the learned counsel for the petitioner so to say that the order of the executing Court does not relate to execution, discharge or satisfaction of the decree within the meaning of Section 47 C.P.C. and it is also not in dispute that the appeal against this order was filed several months after the date on which the CPC was amended by Act 104 of 1976. But he contends that the Court below erred in dismissing the appeal on the ground that it is not maintainable notwithstanding that the execution petition out of which it had arisen was filed prior to the date on which the C.P.C. (Amendment) Act 104 of 1976 came into force. He adds that since the appeal in question was only a continuation of the execution petition, the maintainability or otherwise thereof should be determined having regard to the date on which the execution petition was filed.

If, as contended by the learned counsel, the date on which the execution petition was filed should be taken into consideration the appeal preferred against the order made in that petition would certainly be competent as the execution petition was admittedly filed long before the amended provisions of the Code came into force even though it was disposed of subsequent to that date. I am, however afraid that this is not a correct approach to the matter. In the first place, it cannot be said that the appeal in question was only a continuation of the execution petition and was not an independent proceeding. Appeal is but the creature of the Statute and could not be filed against any and every order and as of right. Even otherwise, the provisions of Section 97 of the C.P.C. (Amendment) Act 104 of 1976 made it difficult to countenance the contention that the date on which the execution petition was filed should determine the tenability or otherwise of the appeal preferred against the order passed in it.

Sub-section (3) of Section 97 of the Amendment Act 104 of 1976 which came into force on 2-2-1977 lays down: Save as otherwise provided in sub-section (2), the provisions of the Principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, not withstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.

Sub-section (3) extracted above, would make it abundantly clear that the amended provisions of the �ode are applicable even to suits, proceedings, appeals or applications pending at the commencement of the Act except to the extent mentioned in sub section (2) notwithstanding that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or bad accrued before such commencement. The language employed in sub-section (2) of Section 97 reinforces the said inference by enumerating the cases which are exempted from the purview of the amended provisions. Sub-section 2 (a) to the extent it is relevant for our purpose, reads as under;

(2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1), has taken effect, and without prejudice to the generality of the provisions of sec. 6 of the General Clauses Act, 1897.

(a) the amendment made to clause (2) of section 2 of the principal Act by section 3 of this Act shall not affect any appeal against the determination of any such question as is referred to in section 47 and every such appeal shall be dealt with as it the said section 3 had not come into force.

The words "shall not affect any appeal" connotes only pending appeals and not appeals to be filed after the commencement of the Amendment Act 104 of 1976. If sub-section2 (a) should be understood as excepting appeals filed even after the commencement of the Amendment Act, section 2 (2) of the Code, as amended the said Act by omitting the words "section 47, or", could never come into play and the amendment in question would be without purpose. This factor, coupled with sub-section (3) of Section 97 which provides, among other things that pending actions are saved only to the extent mentioned in sub section (2) would make it impossible to agree with the petitioner that the Court below went wrong in dismissing the appeal, which was admittedly filed after the advent of the Amendment Act, as ''not maintainable''.

The revision petition is accordingly dismissed, but without costs in the circumstances.