K.C.Agrawal, J. - (1.) This appeal was initially heard by a Division Bench consisting of Hon. H. N. Seth and Hon. V. K. Mehrotra, JJ. Being of the view that the controversy relating to maintainability of the appeal was of importance, which needed an authoritative pronouncement by a larger Bench, the following questions were referred for opinion:- 1.Whether notwithstanding the provisions of Section 97 (3) of the Amending Act 1976 and amendment of Section 2 (2) of the Civil P. C. by Section 3 of that Act, right of a party to file an appeal against an order determining the question falling under Section 47 of the Eivil P. C. remains unaffected because of the provisions contained in Section 97 (2) (a) of the Amending Act ? 2. If answer to question No. 1 is in the negative, does Section 97 (2) of the Amending Act preserve the right of appeal against orders passed under Section 47 of the Code only in respect of appeals pending on the date on which the Amending Act came into force or does it permit appeals in cases where the right to file the same had accrued before coming into force of that Act? 3. If it is held that Section 97 (2) saves the right of appeal against order passed under Section 47 of the Code also in cases where the right to file the same had accrued before coming into force of the Amending Act, when does the right to file an appeal against such orders accrue ?
(2.) For deciding the aforesaid questions, a brief reference to the facts is necessary. Ram Narain Agarwal, plaintiff-respondent, filed a suit against Pratap Narain and others for dissolution of partnership, rendition of accounts, and winding up of the affairs of the firm M/s. Agarwal Ice Factory, Ahmedabad. Certain orders were passed in the suit. Against those orders, three First Appeals from Orders were preferred in this Court. These appeals were numbered 31 of 1971, 196 of 1972 and 197 of 1975. In these appeals, on 21-1-1975, the parties entered into a compromise. The compromise was verified and, thereafter, the appeals were decided in terms of the compromise, which was directed to form part of the decree.
(3.) On 20-l-197f, the plaintiff-respondent moved an application for execution of the compromise decree. An objection under Section 47 of the Civil P. C, was filed by Pratap Narain Agarwal objecting to the execution, inter alia, on the ground that there being no executable decree, the application was not maintainable. The case of the defendant-appellant was that the decree relied on by the plaintiff-respondent was purely declaratory and, as such was incapable of being executed. On 23-8-1978, the objection was dismissed, and a writ of attachment was directed to be issued. Against the dismissal of the objection filed under Section 47, Civil P. C., the present appeal was preferred in this Court on 11-9-1978.;