Lailamma Vasudevan & Devi Lal v. Muthoot Vehicles & Assets Finance Limited

## “C.R.” ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 EX.F.A.NO. 14 OF 2022** **AGAINST THE ORDER DATED 07.04.2022 IN E.A.NO.34 OF 2021 IN E.P.NO.192 OF 2019 IN ARBITRATION CASE NO.606 OF 2015 ON THE FILE OF THE ADDITIONAL DISTRICT COURT-I,** ## **MAVELIKKARA** ## **APPELLANTS/JUDGMENT DEBTORS 2 & 3:** - **1 LAILAMMA VASUDEVAN, AGED 54 YEARS, W/O VASUDEVAN, ANANDHAVADY, PUTHIYAVILA, PATTOLI MARKET P.O.,** **KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN-690531.** - **2 DEVI LAL, AGED 28 YEARS, S/O VASUDEVAN, ANANDHAVADY, PUTHIYAVILA, PATTOLI MARKET P.O.,** **KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN-690531.** **BY ADVS.** - **V.N.SANKARJEE** - **V.N.MADHUSUDANAN** - **R.UDAYA JYOTHI** - **M.M.VINOD** - **M.SUSEELA** **KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K.** **C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S.** 2 Ex.F.A.No.14 of 2022 ## **RESPONDENT/DECREE HOLDER:** **MUTHOOT VEHICLES & ASSETS FINANCE LIMITED, MUTHOOT CHAMBERS, KURIAN TOWERS, BANERJEE ROAD, ERNAKULAM, REPRESENTED BY POWER OF ATTORNEY HOLDER, GEORGE THOMAS, S/O M.T.GEORGE, AGED 54, MUTTATHU HOUSE, OOTTUPURA P.O., KONNI, PATHANAMTHITTA DISTRICT, PIN-689691.** **BY ADV C.S.MANILAL** **THIS EXECUTION FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 03.10.2023, THE COURT ON 18.10.2023 DELIVERED THE FOLLOWING:** 3 Ex.F.A.No.14 of 2022 “C.R.” ## P.B. SURESH KUMAR & P.G. AJITHKUMAR, JJ. ----------------------------------------------------------------Ex.F.A.No.14 of 2022 ----------------------------------------------------------------Dated this the 18[th] day of October, 2023 ## O R D E R ## P.G.Ajithkumar, J. A Full Bench of this Court in Mohamemad Khan v. State Bank of Travancore [1978 KLT 262] held, “.....There is also the fact that the order challenged in this appeal is not any adjudication in a suit. It is an adjudication in execution proceedings, such adjudication would have been appealable as a decree when the definition of 'decree' was wide enough to include an order under Section 47. If it had thus been a decree within the meaning of Section 2(2) we would have been called upon to consider whether, notwithstanding the absence of a provision for appeal in the enactment, the order of the court below also should be considered as an appealable order. But the express omission of orders under Section 47 of the Code of Civil Procedure from the definition of decree in Section 2(2) has rendered orders under Section 47 not appealable since the commencement of the Code of Civil Procedure Amendment Act 104 of 1976. The order impugned in this case was passed subsequent to such amendment. Hence we hold that no appeal would lie against the order of the learned Subordinate Judge.” 4 Ex.F.A.No.14 of 2022 2. Apparently, the said principle of law would have to hold the field and this appeal filed under Section 96 of the Code of Civil Procedure, 1908 challenging the order of the Additional District Judge-I, Mavelikkara in a petition filed under Section 47 ought to be held not maintainable. The submission of the learned counsel for the respondent in that lines is, however, opposed by the learned counsel for the appellants by contending that the said decision is per incuriam inasmuch as the Full Bench did not advert to the provisions of Sections 97(2)(a) and 97(3) of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976). The learned counsel for the appellants would submit that the intent of Section 97(2)(a) of the Amendment Act of 1976 is that despite the amendment in Section 2(2) of the Code, an appeal against determination of a question as is referred to in Section 47 would lie and any interpretation making such an appeal not maintainable cannot be legal. In the view of the learned counsel, saving of such an appeal is obvious from the language of Section 97(2)(a) of the Amendment Act of 1976 for, the omission of words like ‘pending' or ‘filed before the 5 Ex.F.A.No.14 of 2022 commencement’ in Section 97(2)(a) is a casus omissus. It is contended that had the said provisions been considered, the Full Bench would not have taken such a view, and therefore the decision in Mohamemad Khan (supra) is incorrect. 3. This appeal relates to an arbitration proceedings initiated by the respondent against the appellants and their predecessor Sri.Vasudevan. Pending the arbitration proceedings Sri. Vasudevan expired. An Award was eventually passed in the said arbitration proceedings and the same was put in execution in E.P.No.192 of 2019. The appellants objected to the said execution petition by filing E.A.No.34 of 2021 invoking the provisions of Section 47 of the Code. They contended that copies of the relevant records were not furnished to them as insisted by Section 25(a) of the Arbitration and Conciliation Act, 1996 and a copy of the Award was not served on them as contemplated in Section 31(5) of the Act. And, it was urged that for such infractions the award is not executable. The Additional District Court dismissed that Execution Application as per the order dated 07.04.2022. The said order is under challenge in the appeal. 6 Ex.F.A.No.14 of 2022 4. Any question regarding execution, discharge and satisfaction of a decree is liable to be determined by the court executing the decree and not by a separate suit. The question involved in E.A.No.34 of 2021 was also one relating to the executability of the award and therefore, one coming under Section 47 of the Code. The learned counsel appearing for the respondent would submit that after the amendment of Section 2(2) of the Code by deleting ‘Section 47 or’, a determination under Section 47 cannot be deemed to be a decree and therefore is not appealable. The view taken by the Full Bench of this Court in Mohamemad Khan (supra), in his view, is the correct exposition of law and hence this appeal is not maintainable. The learned counsel appearing for the appellants, per contra, submitted that while all other provisions in Section 97(2) of the Amendment Act of 1976 describe the extent of savings with reference to the period, there is no such stipulation in clause (a) of Section 97(2). Section 97(3) makes the position clearer inasmuch as it says that the provisions of the principal Act, as amended, should apply to every suit, proceeding, appeal or application, pending 7 Ex.F.A.No.14 of 2022 at the commencement of that Act or instituted or filed after such commencement, provided the cause of action has arisen earlier. Therefore, it is contended that the amendment to Section 2(2) of the Code did not affect the appealability of an order under Section 47. The learned counsel for the appellants further submitted that the intention of the Legislature to retain the right of appeal against an order under Section 47 of the Code is clear from the insertion of Section 99A simultaneous to the amendment of Section 2(2) by the Amendment Act of 1976. It is further submitted that an interpretation that an order under Section 47 is not appealable will make Section 99A otiose and such an interpretation making a provision redundant is impermissible. 5. It is a salient rule of statutory interpretation that when there are conflicts in various provisions of a Statute, it is the duty of the court to have a harmonious construction so that neither of the provisions becomes redundant. In Jagdish Singh v. Lt.Governor, Delhi and others [(1997) 4 SCC 435], the Apex Court held that it is a cardinal principle of construction of a statute or the statutory rule that efforts should be made in 8 Ex.F.A.No.14 of 2022 construing the different provisions, so that, each provision will have its play and in the event of any conflict a harmonious construction should be given. It was also held that a construction that reduces one of the provisions to a “dead letter” is not a harmonious construction as one part is being destroyed and consequently the court should avoid such a construction. 6. While resorting to such a harmonious construction, again, the obligation of the court is to gather the intention of the Legislature from the language of the provision. It is a well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See: Institute of Chartered Accountants of India v. M/s Price Waterhouse and another [(1997) 6 SCC 312] . Bearing that in mind we may proceed to ascertain the intention behind 9 Ex.F.A.No.14 of 2022 amending Section 2(2) and simultaneously including Section 99A in the Code by the Amendment Act of 1976. That, the question is whether an appeal is still possible dehors taking out of the purview of the definition of decree a determination under the provisions of Section 47 of the Code. 7. The Law Commission of India submitted its 27[th] Report with a few recommendations to amend the Code of Civil Procedure with the specific objective of minimising cost of litigation and avoiding delay in disposal of civil cases. Although a Bill in terms of the said recommendations was introduced, the same was lapsed. As referred again, the Law Commission of India after due deliberations, submitted its 54[th] Report on 06.02.1973. It was in terms of the said recommendation, the Bill for amendment of the Code was brought in and Act 104 of 1976 was enacted. As per Section 3 in the Amending Act, amended Section 2(2) by deleting the words ‘Section 47 or’. Simultaneously, Section 99A was also inserted. Another amendment brought about relating to the powers of the appellate court is Section 99. The amendments so brought about are the following:- 10 Ex.F.A.No.14 of 2022 “S.3. Amendment of Section 2.- In Section 2 of the principal Act,- (i) in clause (2), the words and figures “Section 47 or” shall be omitted. S.35. Amendment of Section 99.- In Section 99 of the principal Act, - (i) after the words "any misjoinder", the words "or non-joinder” shall be inserted; - (ii) the following proviso shall be added at the end, namely:- "Provided that nothing in this section shall apply to non-joinder of a necessary party." S.36. Insertion of new Section 99A.- After Section 99 of the principal Act, the following section shall be inserted, namely:- “99A. No order under Section 47 to be reversed or modified unless decision of the case is prejudicially affected.- 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.". 8. It may be noted that when Section 99 was amended, the words “in appeal” in the original provision was retained, which means that the Legislature made the intention clear that the restrictions delineated in Section 99 were intended to be applied to appeals. On the other hand, in 11 Ex.F.A.No.14 of 2022 Section 99A the words “in appeal” are not included. In that context the conscious omission of the words "in appeal" from the text of Section 99A in disregard of the suggestion by the Law Commission assumes great significance. If the Legislature intended to apply the provisions of Section 99A to appeals, or rather to create a right of appeal against an order under Section 47 of the Code, the provision as suggested by the Law Commission should have been enacted. The text of Section 99A suggested by the Law Commission is as follows:- “99A. No order under section 47 shall be reversed or substantially varied, nor shall any case relating to such order be remanded, in appeal on account of any error, defect or irregularity in any proceedings relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.” The text of Section 99A enacted by Amendment Act of 1976 is extracted above. The words “in appeal” contained in the suggested provision were omitted while Section 99A was enacted. What does it convey? It certainly conveys that Section 99A was not intended to be applied to appeals. The corollary is that by adding Section 99A no right of appeal has been created. 12 Ex.F.A.No.14 of 2022 9. Of course, Section 97(2)(a) of the Amendment Act of 1976 does not have a restrictive provision, whereas the rest of the clauses in Section 97(2) contain provisions restricting application to the pending proceedings or proceedings which would ensue in relation to the right already accrued. Section 99A suggested by the Law Commission was altered by the Legislature by deleting the words "in appeal" while this provision was enacted. From the above, it cannot be said that by incorporating Section 99A an order under Section 47 was made appealable. Section 99A of the Code may apply to the proceedings possible under whatever corrective jurisdiction available under the Code, but it cannot be interpreted to mean that an appeal shall lie against an order under Section 47 of the Code. Section 97(2) (a) is meant to save the pending appeals only lest, the wording should have been “.... shall not affect right of appeal against ….” instead of “.... shall not affect any appeal against ….”. Therefore, we are unable to accept the contentions of the appellants that on account of insertion of Section 99A in the Code, and in the light of Section 97(2)(a) of the 13 Ex.F.A.No.14 of 2022 Amendment Act of 1976 an appeal against an order under Section 47 is possible, notwithstanding deletion of the words “Section 47” from the definition of decree in Section 2(2) of the Code. The plea that the decision in Mohamemad Khan (supra) is per incuriam is rejected. 10. A Division Bench of Andhra Pradesh High Court considered this question in Challa Ramamurty v. Pasumarti Adinarayana Sons Regd.Firm [AIR 1985 AP 42] . After considering the impact of the amendment brought about to Section 2(2) and Section 99 of the Code and also insertion of Section 99A, it was held that owing to the amendment to the definition of ‘decree’, a decision under Section 47 does not amount to a decree and the intention of the Legislature inferable therefrom is that an order under Section 47 is not appealable. Thereby the existing right to prefer such an appeal has been interdicted. A Full Bench of the Patna High Court in Narmada Devi and others v. Ram Nandan Singh and others [AIR 1987 Pat.33] also considered the question and a similar view was taken. We find sufficient justification for the said view, which we have mentioned above. 14 Ex.F.A.No.14 of 2022 11. A right of appeal is a statutory right. Right of appeal inheres in no one. When conferred by statute alone it becomes a vested right. In view of what are stated above, we have no hesitation to hold that an adjudication on a question as is referred to in Section 47 of the Code cannot be assailed in an appeal under Section 96 of the Code; such an order is not appealable under Section 104 of the Code, either. This appeal is accordingly dismissed as not maintainable. Sd/- P.B. SURESH KUMAR, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr