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2010 DIGILAW 417 (GUJ)

Jayantilal Nathalal v. Laxmiben Jamnadas

2010-09-08

K.A.PUJ

body2010
JUDGMENT : K.A. Puj, J. The appellant 'original plaintiff' judgment creditor has filed this appeal under Section 100 of the Code of Civil Procedure challenging the judgment and order dated 22.12.1980 passed by the learned District Judge, Jamnagar in Regular Civil Appeal No.5 of 1979 confirming the judgment and decree dated 30.12.1978 of the learned Civil Judge (J.D.), Dhrol Jodiya in Regular Civil Darkhast (Execution Application) No.7 of 1974 for execution of the decree passed in Regular Civil Appeal No.82 of 1969. 2. This Court has admitted the present Second Appeal on 05.02.1981 and following substantial questions of law were framed by this Court for determination and consideration of this Court :- A. Whether the amendment brought about in Section 2 (2) of the Code of Civil Procedure by which the determination of any question under Section 47 does not now amount to a decree, can be construed so as to take away vested right of an appeal or pending executions ? B. Whether the conclusion reached by the lower Courts is correct that the entire decree is in-executable ? 3. The brief facts giving rise to the present Second Appeal are that the decree holder judgment creditor original plaintiff had filed Regular Civil Darkhast No.7 of 1974 in the Court of the learned Civil Judge (J.D.), Dhrol Jodiya for executing the decree passed in Regular Civil Suit No.82 of 1969. The said Darkhast was decided by the learned Civil Judge and dismissed the execution petition. Being aggrieved by the said judgment and order of the learned Civil Judge, the appellant preferred Regular Civil Appeal No.5 of 1979 before the learned District Judge, Jamnagar, who also confirmed the judgment and order of the learned Civil Judge. 4. Mr. S. M. Shah, learned advocate appearing for the appellant submitted that the lower Courts have erred in finding that in view of the provisions of the amendment in the Code of Civil Procedure, the appeal preferred before the District Judge is not maintainable despite the fact that the Execution application in which the order challenged before the lower Court was passed under Section 47 was instituted at the time when the amendment in the Code of Civil Procedure was not made effective. He has further submitted that the lower Appellate Court has wrongly construed the provisions contained in Section 97 (2) (a) of the Code of Civil Procedure (Amendment Act of 1976) and has erred in finding that in view of the said provisions, the order passed in Execution application under Section 47 cannot be considered to be a decree within Section 2 (2) of the Code of Civil Procedure and as such, the appeal before him is not competent and not maintainable and liable to be dismissed. 5. He has further submitted that the finding recorded by the lower Appellate Court that it is clear from Section 3 of the Amended Act, 1976 whereby Section 2 (2) of Code of Civil Procedure has been amended and the reference to the word Section 47 has been deleted from the definition of the word 'decree', which has the effect that the order passed under Section 47 cannot be considered to be a decree and no appeal would lie from the order pronounced by the Executing Court, is not correct. He has further submitted that the appeal can be filed against any order passed by the Executing Court and as such, in the present matter, the order sought to be challenged having been passed by the learned Judge on 10.12.1978 is clearly maintainable and, therefore, the appeal should have been entertained by the lower Appellate Court. He has further submitted that the lower Appellate Court should have decided the matter on merits and legality and validity of the order challenged in the appeal. The order of the Executing Court challenged in the appeal is on the face of it is illegal and it has resulted into failure to exercise jurisdiction vested in him. Mr. Shah has alternatively submitted that instead of disposing the appeal on the ground that it is not maintainable, the learned District Judge should have returned the memo of appeal or presentation to the proper Court, namely, to this Court on its finding that it has no jurisdiction to entertain the appeal and it was not legally open to the lower Appellate Court to dismiss the appeal. He has further submitted that the provisions of the Amendment Act of 104/1976 cannot be considered to be retrospective and the right to prefer appeal arises and accrues and vests in the plaintiff at the time of the institution of the proceedings in which the decree or order challenged is passed and this vested right of appeal in pending proceedings is not impaired by change in law relating to appeals and as such, new law cannot be applied to the orders made in the pending proceedings, though made, after the change in law as that would deprive a person of his vested right. He has further submitted that the Executing Court has failed to exercise jurisdiction vested in it by law and has acted illegally and with material irregularity in refusing to execute the decree sought to be executed by considering that the decree sought to be executed is not executable one despite the fact that it is very clear in terms and has been confirmed upto this Court in Civil Revision Application No.984 of 1981 on 13.11.1973 after appreciating the decree passed by the Trial Court. Mr. Shah further submitted that the lower Appellate Court has equally failed to appreciate and consider the pleadings of the suit and the entire text of the decree and the partition decree which if read together would clearly indicate what is decreed and what is ordered to be done pursuant to the decree and there can be no difficulty in executing the said decree as passed. 6. Mr. Shah further submitted that the Trial Court has failed to appreciate and consider that the prayers made in the execution application are for executing the decree as passed as well as the cost awarded and even in the order of the Trial Court, there is no finding to the effect that the execution application for recovery of the costs is in any manner in-executable or any of the prayers in any manner are incompetent, being granted or cannot be granted or that there is anything wrong about the executability of the same and as such, it is not legally open to reject Execution Application considering it to be an un-executable one. Hence, the order to execute the decree ought to have been passed as prayed for in the execution application. 7. Lastly, Mr. Hence, the order to execute the decree ought to have been passed as prayed for in the execution application. 7. Lastly, Mr. Shah relied on the Full Bench decision of this Court in the case of Prabhashanker S. Joshi v. F.K. Parmar, 1984 GLH 662 wherein it is held that Code of Civil Procedure, 1908 mentioned in the Rent Act and the Rules made thereunder, would be that Code as it stood in 53 when it came to be incorporated in the Rent Act and not amended in 1976. The appeal would, therefore, lie against the determination of any question under Section 47 of the Code of Civil Procedure in execution proceedings under the Bombay Rent Act and the Rules made thereunder on the principle of incorporation. Accordingly, the Court has answered the question accordingly. 8. Despite service of notice, nobody appears on behalf of the respondent. 9. The lower Appellate Court has decided the appeal on 22.12.1980. The Full Bench decision was not available as it was decided on 27.06.1984. The learned Judge has relied on the decision of this Court in the case of Mohanlal M. Shah v. Bai Maniben, 20 GLR 711. In that case, while considering the provisions of the Code of Civil Procedure (Amendment Act, 1976) and especially Section 2 (2) and Section 96, this Court held that on the date of the institution of any appeal after 01.02.1977, there would be no order of any Executing Court, which would remain clothed with the deeming effect of a decree, as such, a deeming effect had stood withdrawn on 01.02.1977 when the Amending Act came into force and consequently, no appeal could be filed after 01.02.1977 against any order passed by the Executing Court, where such an order was passed before or after 01.02.1977. Only such appeals which were already filed on or before 01.02.1977 and which may have been pending on the file of the appeal Court would be saved under Section 97 (2) (a). Following this judgment, the learned District Judge has held that after 01.02.1977, no appeal can be filed against any order passed by the Executing Court. 10. After having heard Mr. Following this judgment, the learned District Judge has held that after 01.02.1977, no appeal can be filed against any order passed by the Executing Court. 10. After having heard Mr. S. M. Shah, learned advocate appearing for the appellant and having gone through the judgments and orders passed by the Courts below, the Court is of the view that the issue involved in the present appeal is squarely covered by the Full Bench decision of this Court in the case of Prabhashanker S. Joshi v. F. K. Parmar, 1984 GLH 662 (Supra) and hence, the learned District Judge has jurisdiction to decide the appeal filed against an order passed by the Trial Court in execution proceedings. It is true that while deciding the appeal, the learned District Judge has relied on the judgment of this Court in the case of Mohanlal Maneklal Shah v. Bai Maniben W/o. Gordhandas Kevaldas (Supra) wherein a view was taken that on the date of institution of any appeal after 01.02.1977, there would be no order of any executing Court, which would remain clothed with the deeming effect of a decree. The Court took the view that the deeming effect had stood withdrawn on 01.02.1977 when the Amending Act came into force and consequently, no appeal could be filed after 01.02.1977 against any order passed by the Executing Court. The Court further held that only such appeals which were already filed on or before 01.02.1977 and which may have been pending on the file of the Appeal Court, would be saved under Section 97 (2) (e). However, subsequent to this decision, a Full Bench of this Court has taken the view that the Code of Civil Procedure, 1908 mentioning in the Rent Act and the Rules made thereunder, would be that Code as it stood in 1953 when it came to be incorporated in the Rent Act and not as amended in 1976. The Full Bench has also taken the view that an appeal would, therefore, lie against the determination of any question under Section 47 of the Code of Civil Procedure in execution proceedings under the Bombay Rent Act and the Rules made thereunder on the principle of incorporation. Surprisingly, before the Full Bench, the decision of this Court in the case of Mohanlal Maneklal Shah v. Bai Maniben W/o. Gordhandas Kevaldas was not cited. Surprisingly, before the Full Bench, the decision of this Court in the case of Mohanlal Maneklal Shah v. Bai Maniben W/o. Gordhandas Kevaldas was not cited. Be that as it may, the decision of Full Bench is binding on this Court. Even otherwise, the Full Bench decision has been followed in subsequent decision of this Court in the case of Hasmukhbhai Bhikhubhai Rana and others v. Jyotsnaben Bachubhai and others, 1986 GLH (UJ) 48 wherein it is held that against an order in execution passed by the Executing Court under the Bombay Rent Act is appelable in view of the Full Bench judgment in the case of Prabhashanker S. Joshi v. F. K. Parmar, 1984 GLH 662 . The Court in that decision has taken the view that the Revision Application filed under Section 115 of the Code of Civil Procedure before this Court against the judgment and order passed by the Executing Court is not maintainable and the aggrieved party is required to approach the District Court by way of appeal. 11. In view of the above legal position, this Court is of the view that the impugned judgment and order passed by the learned District Judge, Jamnagar on 22.12.1980 in Regular Civil Appeal No.5 of 1979 dismissing the said appeal on the ground that it is not maintainable is hereby quashed and set aside and the matter is remanded to the District Judge, Jamnagar for deciding the said appeal afresh on merits and in accordance with law. 12. Subject to the above direction and observation, this Second Appeal is accordingly allowed. There shall be no order as to costs. Appeal allowed.