Whether the order of an executing court under section 47 appealable? 9. Patna High Court in Narmada Devi case had considered all earlier decisions on this issue and had also considered pre-amendment and post-amendment provisions of CPC and after detailed analysis observed as under: 6. It is common ground that prior to the amending Act the determination of any question by an order under Section47 was appealable. This was so by virtue of a legal fiction which provided that the determination of any question within Section 47 would be deemed to be a decree and, consequently, under Section 96 of the Code an appeal would lie against the same. The existing state of the law had led to the well-acclaimed dictum that in India the trouble of a litigant began after he had secured a decree. 10. The stage is now set to notice the relevant meaningful changes brought about by the Amending Act by juxtaposing the corresponding provisions: Before amendment “2(2) ‘decree’ means the formal express-lions of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include” (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.” “47. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this Section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.’‘ After amendment “2(2) ‘decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section144, but shall not include” (a) Any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.” “47. (1) All questions arising between the the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) Omitted by C.P.C. (Amend.) Act, 1976, S. 20 (w.e.f. 1.2.1977). (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section be determined by the Court.’‘ “99A. 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.’‘ 11. Before one adverts to the larger scheme of the amendment of the Civil Procedure Code in regard to the execution proceedings by the amending Act, it would call for pointed notice that even prior thereto an order under Section 47 was treated as a decree only by sufferance due to an express deeming legal fiction. It is plain that an order under the said section is not passed in a suit nor is it drawn up in the formal form of an adjudication in the style of a decree. In many cases such an order may not at all be a conclusive determination of the rights of the parties with regard to the real matter in controversy, as for example, in the context of interlocutory orders. Thus, at the pre-amendment stage, an order under Section 47 had been clothed as a decree purely by a deeming legal fiction apparently to give a right of appeal against it by virtue of Section 96. 12. Now, with the above background, one may turn to the real intent and the scheme of the amendment of Civil Procedure Code by Parliament in this context. Firstly, Section 2(2) of the Code was amended and the deeming provision with regard to orders under Section 47 was expressly deleted. The inevitable result is that thereafter orders passed under Section 47 could not be considered as a decree by any legal fiction. To make the intent clear the Parliament then repealed Sub-section (2) of Section 47 as well. Thus, the somewhat analogous power of converting a proceeding into a suit or a suit into a proceeding was clearly taken off the Statute Book. All that thus remains now is a simple definition of the word ‘decree’ in Section 2 without the deeming provision which included an order under Section 47 and equally the removal of the power of conversion under Sub-section (2) thereof. The intent is further made clear by the insertion of Section 99A. It bears repetition that originally such a provision was suggested by the Law Commission for restricting any interference with orders under Section 47 unless they prejudicially affected the decision of the case. The dropping of the words ‘in appeal’ in the enacted provision, in contrast to what was proposed, would again be a pointer to the fact that Parliament clearly conceived the intent of abrogating of appeals against orders under Section 47 which, as already noticed, were hamstringing the expeditious execution of decrees. Further it calls for notice that wherever any order is to be made appealable, the Code expressly confers such a right and even when by amendment the deeming fiction of orders under Section 47 being decrees was taken away, no consequential provision was made anywhere for making some orders thereunder appealable. This again is indicative of the Legislature’s earnestness to take away the right of appeal in this context to which the whole exercise of amendments of the aforequoted provisions seems to be directed. To put it forthrightly, the simple position emerging after the amending Act is that prior to the same orders under Section 47 were by a deeming fiction decrees and were consequently appealable and subsequent to the amendment all the orders under Section 47 are no longer appealable, such a right having been expressly abolished by the Legislature. To suggest that though, admittedly, certain orders under Section 47 have now been rendered unappealable, yet some still retain the original attribute of being appealable is a mere legal hair-splitting, which runs counter to the main grist of the legislative mandate sought to be enforced by the amendment. 156 (2009) Delhi Law Times 513 Delhi High Court Shiv Narayan Dhingra, J. YASHpal Singh—Petitioner versus Bhagwana & Anr.—Respondents C.R.P.No. 204 of 1987 and CRP. No. 195 of 1987—Decided on 7.1.2009 22. To conclude on this aspect, it must be held that after the amending Act of 1976, no appeal is now maintainable against any order whatsoever passed under Section 47 of the Code of Civil Procedure. 46. To finally conclude on the primal questions formulated at the outset, the answer to question No. 1 is rendered in the negative and it is held that no appeal is now maintainable against an order under Section 47 of the Code — whether interlocutory or otherwise — after the enforcement of the amending Act. 10. I am in full agreement with the view taken by Patna High Court in respect of jurisdiction of the Appellate Court in entertaining the appeal. I consider that the learned Senior Sub-Judge had no jurisdiction to entertain the appeal and the order passed by the learned Senior Sub-Judge is liable to be set aside on this ground.
Posted on: Sun, 01 Sep 2013 13:37:57 +0000
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