Civil Appeal No 2905 of 1981
From the Judgment and Order dated the 19th June 1981 of the Bombay High Court in Appeal No 44 of 1981 in Suit No 540 of 1970
FS Nariman V Tulzapurkar R Nariman Srikant Singh and Rajan Karanjawala for the Appellants
LN Sinha Attorney General and P P Singh for the Respondent
The Judgment of the Court was delivered by AMARENDRA NATH SEN J
The maintainability of an appeal filed by the defendant in the suit against a money decree payable in instalment after the defendant had filed an appeal only against the part concerning the direction with regard to the instalments and had withdrawn the same is the question for consideration in this appeal by certificate granted by the High Court under Article 133 1 of the Constitution
The facts material for the purpose of the decision involved in this appeal are brief and may be stated
The State Trading Corporation the respondent in this appeal as plaintiff filed a suit against the appellant who was the defendant in the suit on the Original Side of the Bombay High Court for the enforcement of the plaintiff s claim for a large amount which inclusive of interest worked out to over Rs400000000
For the purpose of deciding this appeal it does not become necessary to refer to the nature of the claim and the averments made by the plaintiff in the plaint for claiming a decree for the said amount against the defendant appellant
The defendant appellant had contested the claim
The defendant appellant in the written statement had denied the claim of the plaintiff respondent pleaded legal as well as equitable set off and had made a counter claim
In due course the suit came up for hearing before Bharucha J
It appears that on the conclusion of the hearing the defendant appellant prayed that the defendant appellant might be allowed to pay the decretal amount in the event of a decree being passed against the defendant appellant in instalment in the 31 manner prayed for in an affidavit containing such prayer filed on behalf of the defendant
The learned single Judge for reasons recorded in his judgment passed a decree in favour of the plaintiff respondent for a sum of Rs 400000000 with costs quantified at Rs 4275000 two counsel being certified
The learned Judge dismissed the counter claim of the defendant appellant without any order as to costs
The learned Judge in the concluding portion of the judgment observed as follows Mr Thakkar relied upon affidavits filed on behalf of the 1st and 2nd defendants and sought for the payment of the decretal amount a moratorium of 5 years and after the expiration of these 5 years instalments of Rs 400000 per annum
He then left it to the Court to fix such instalments as it deemed proper
Mr Doctor opposed the grant of any instalment
Neither the facts of the suit nor the averments such as they are made in the affidavits would justify the giving of an extended period for the payment of the decretal amount
In the circumstances I order that the decretal amount be paid by monthly instalments of Rs 350000 each the first of such instalment to be paid up on or before 7th March 1981 and subsequent instalment on or before the 7th day of each succeeding month
The plaintiffs shall be at liberty to execute the decree for the amount then due in the event of the plaintiff committing any one default in payment of the said instalments
 Delivery of the judgment commenced on the 12th December 1980 and was concluded on the 16th December 1980
On the day of the conclusion of the judgment ie 16th December 1980 three precipes were addressed by the Advocates for the defendant appellant to the Prothonotary and Senior Master of the Bombay High Court 1 for certified copy of the decree when drawn up 2 certified copy of the judgment and 3 for certified copy of the minutes of the order
On the 16th of January 1981 the Advocates for the Defendant Appellant addressed a letter to the Prothonotary and Senior Master High Court Bombay to the following effect Be pleased to take on file the accompanying Memo of appeal along with compilation in duplicate
We also 32 send herewith Vakalatnama duly signed by our clients the appellants abovenamed
Kindly take the same on file
We have to put on record that the appeal is under Order 20 rule 11 of the Civil Procedure Code and Court fee of Rs 5 is payable
We have to further state that the appeal is in time as certified copy of the order and judgment as well as the decree was applied for on 16th December 1980 but the same has not been received by us
Appeal is therefore in time
Kindly see that the said appeal is circulated before the Chief Justice and Hon ble Mr Justice Rege and that the same appeal is called on Wednesday the 21st day of January 1981
The memorandum of appeal which was numbered as appeal No 36 of 1981 and was filed on 20181 by the defendant appellant states Being aggrieved by the judgment and order dated 16th December by the Hon ble Mr Justice Bharucha directing payment of the Decretal amount by monthly instalments of Rs 350000 each the appellants beg to appeal therefrom on the following amongst other grounds
In this memorandum of appeal directed against the order of instalments the defendant appellant had taken 21 grounds and each of the ground related to the order with regard to the payment of decretal amount by monthly instalment of Rs 350000
This appeal No 36 of 1981 came up for admission before a division Bench of the High Court consisting of the learned Chief Justice and Rege J on 21181 and when the matter was called on for admission the counsel for the appellant asked for leave to withdraw the appeal and the appeal was allowed to be withdrawn
The minutes of the Court record Appeal allowed to be withdrawn
On 29182 ie just after a week of the withdrawal of the appeal No 361981 the defendant appellant filed an appeal against the judgment delivered on 16th December 1980 by Bharucha J and this appeal was numbered as appeal No 44 of 1981
The memorandum of appeal in this appeal states Being aggrieved by the judgment dated 33 16121980 passed by the Hon ble Mr Justice Bharucha the appellant begs to appeal therefrom on the following amongst other grounds
 In this memorandum of appeal the appellant has taken as many as 73 grounds out of which grounds nos
1 to 53 relate to Judgment and decree on the merits and grounds 54 to 73 relate to the provision as to instalments
This appeal ie appeal No 44 of 1981 came up for admission on 321981 before the same Bench consisting of the learned Chief Justice and Rege J when the plaintiff respondents appeared through their counsel and opposed the admission on the ground that the appeal was not maintainable
The appeal was however admitted and the minutes of the Court after noting the appearances record Admitted
After filing the appeal the defendant appellant made an application for stay of the execution of the decree by way of notice of motion which was rejected by the division Bench
Against the said order of refusal to stay execution a special leave petition was filed in this Court
For the propose of the present appeal it does not become necessary to refer to this special leave petition and the proceedings arising therefrom
The appeal came up for hearing before a Division Bench on the 24th of March 1981 and the hearing continued till 27th March 1981 and on that date hearing of the appeal was adjourned to 8th April 1981 as per following order Having heard Mr Nariman on the merits of the appeal for almost four days though we had not heard the respondents we prima facie were of the opinion that there was force and substance in several of the contentions raised and the arguments advanced on behalf of the appellants and as the second instalment under the said decree was payable by April 8 1981 we suspended the operation of the decree appealed against pending the hearing and final disposal of the said appeal
 Hearing of the appeal commenced again on the adjourned date ie 8th April 1981 in terms of the earlier order and continued for some days
It appears that after the appeal had been heard on merits for some days it was stated on behalf of the plaintiff respondent before the Division Bench that the plaintiff respondent would be raising a preliminary objection as to the maintainability of the appeal
It was stated on behalf of the plaintiff respondent that since the defendant appellant had earlier filed an appeal being 34 appeal No 36 of 1981 against the provision regarding instalments which had been withdrawn on 2111981 by the defendant appellant plaintiff respondent would be contending that the present appeal No 44 of 1981 was not maintainable
It appears that since the objection was taken at a late stage after the learned counsel for the defendant appellant had addressed the Court on merits for a number of days the Court permitted the counsel for the defendant appellant to complete the arguments and the Court thereafter proceeded to hear the respondent on the question of maintainability
On 1961981 the Division Bench dismissed the appeal up holding the preliminary objection to the maintainability of the appeal on the ground that the defendant appellant had by filing appeal No 36 of 1981 against the provision relating to instalments which the defendant appellant had withdrawn abandoned its right to challenge the decree on merits
The Division Bench however while dismissing the appeal substituted for the decree of the Trial Court a decree for the sum of Rs 401873738 with interest on the principal amount of Rs 181845139  6 percent per annum from the date of the judgment till the payment or realisation and maintained the order for costs as passed by the Trial Court
Aggrieved by the judgment and decree of the dismissal of the appeal filed by the defendant appellant in the High Court on the ground that the appeal was not maintainable this appeal has been filed by the defendant appellant with certificate granted by the High Court
Mr Nariman learned counsel appearing on behalf of the defendant appellant has submitted that the High Court has erred in holding that the instant appeal No 44 of 1981 is not maintainable as the defendant appellant by filing the earlier appeal No 36 of 1981 against the provision relating to instalments had abandoned its right to challenge the decree on merits
The principal contention of Mr Nariman is that the filing of the earlier appeal No 36 of 1981 or the withdrawal of the same by the defendant appellant does not affect the right of the defendant appellant to prefer the present appeal against the decree on merits and does not preclude the defendant appellant from filing the present appeal and proceeding with the hearing thereof Mr Nariman has argued that the earlier appeal No 36 of 1981 was filed against the order of the High Court passed under Order 20 rule 11 of the Code of Civil Procedure with regard to the instalments only and the said appeal was not an appeal against 35 the decree
In support of his submission Mr Nariman has referred to the precipe filed on behalf of the defendant appellant the letter addressed by the Advocates for the defendant appellant on the 16th January 1981 to the Prothonotary and Senior Master High Court and also to the memorandum of appeal filed in appeal No 36 of 1981 and the stamps paid on the said memorandum of appeal
Mr Nariman has submitted that the earlier appeal No 36 of 1981 which was an appeal against an order was incompetent as no appeal lay from the said order
It is the submission of Mr Nariman that the right to prefer an appeal is a creature of Statute and unless the right to prefer an appeal is conferred by law a litigant cannot prefer any appeal
Mr Nariman submits that an order regarding instalment is not appealable under the Code and such an order cannot also be considered to be a judgment  within the meaning of cl 15 of the Letters Patent
Mr Nariman therefore contends that the earlier appeal No 36 of 1981 was an incompetent appeal and was therefore no appeal in the eye of law and for all legal purposes was non est
It is the contention of Mr Nariman that as the earlier appeal No 36 of 1981 was incompetent and non est in the eye of law the filing of the appeal and its withdrawal do not have any legal consequence and cannot in any way prejudice the right of the defendant appellant to prefer a proper appeal against the decree
Mr Nariman has next contended that notwithstanding the amendment introduced in order 20 rule 11 of the Code providing that the order of instalment of payment of the decretal amount has to be incorporated in the decree the said appeal No 36 of the 1981 still must be held to be incompetent Mr Nariman argues that the Rules of Original Side of the High Court make provisions with regard to drawing up of the decree and there is a time lag between judgment and the drawing up of the decree
Mr Nariman points out that as the rules of the Original Side of the High Court permit filing of an appeal without a certified copy of the decree or order appeal No 36 of 1981 had been filed soon after the judgment had been pronounced and long before the decree had been drawn up and the said order had been filed without the certified copy of the order or the decree in terms of the provisions of rules of the Original Side of the High Court
It is the argument of Mr Nariman that as the appeal No 36 of 1981 had been filed long before the decree incorporating the order had been drawn up appeal No 36 of 1981 which had been filed only against the order regarding instalments must be 36 considered to be an appeal against the order and not against the decree
Mr Nariman has further argued that even if it can be said that Appeal No 36 of 1981 has to be considered to be an appeal against the decree in view of the amended provisions of Order 20 rule 11 of the Code it cannot be disputed that the said appeal had been filed without a certified copy of the decree and the said appeal had been withdrawn before any certified copy of the decree had been filed in the said appeal and the said appeal must therefore be held to be no appeal in the eye of law
Mr Nariman submits that the later appeal No 44 of 1981 against the decree had been filed in terms of the provisions contained in the Original Side rules of the Bombay High Court had the certified copy of the judgment and decree had been filed in Appeal No 44 of 1981
It is Mr Nariman s argument that appeal No 44 of 1981 becomes a proper and competent appeal as the earlier appeal No 36 of 1981 could not be considered to be a valid appeal in the eye of law at the time of the withdrawal of the same in the absence of the certified copy being filed
Mr Nariman argues that though by virtue of the provisions of the Bombay High Court Original Side Rules an appeal can initially be filed without the certified copy the certified copy the filing of which is a mandatory requirement of law has to be filed within the period of limitation before the hearing of the appeal to render the appeal valid and competent
Mr Nariman in this connection has referred to the decisions of this Court in Jagat Dhish Bhargava vs Jawaharlal Bhargava  Ors1 and Shakuntal Devi Jain vs Kuntal Kumari  Ors2 Mr Nariman has further argued that there is no provision in the Code or any other law which prevents an appellant from preferring more than one appeal
Relying on the decision of this Court in Jagat Dhish Bhargava supra Mr Nariman has submitted that where the decree consists of distinct and severable parts enforceable against the same or several defendants separate appeals against such distinct and severable directions or orders or provisions in a decree may be filed
It is Mr Nariman s argument that in the instant case even if the order for instalment be considered to be a part of the decree the decree shall consist of two distinct and severable parts 1 on the merits of the claim and 2 on the question of payment in instalment
Mr Nariman has next contended that the provisions of Order 2 rule 2 of the Civil Procedure Code do not in any way affect the maintainability and the merits of the 37 present appeal No 44 of 1981
He has submitted that the said provisions have no application to an appeal and in any event the cause of action and the subject matter of the present appeal are entirely different from the cause of action and the subject of the earlier appeal
Mr Nariman argues that though this Court in the case of Bijoyananda Patnaik vs section Sahu1 has held that the provisions of Order 23 rule 1 of the Code of Civil Procedure will be applicable to the withdrawal of an appeal the provisions will also not preclude the appellant from filing the present Appeal No 44 of 1981
It is his submission that in considering the provisions of order 23 rule 1 the relevant fact to be borne in mind is the subject matter of the appeal and if the subject matter of the appeal be different as in the present case it is the earlier appeal No 36 of 1981 being confined to the subject matter of instalment and the subsequent appeal No 44 of 1981 being against the decree on the merits of the claim the withdrawal of the earlier appeal cannot in any way be a bar to the maintainability of the subsequent appeal
Mr Nariman has in this connection referred to the decision of this Court in Vallabhdas vs Dr Madan Lal  Ors2 in which this Court equated the meaning of the words subject matter in order 23 rule 1 with the meaning of the words cause of action in Order 23 rule 2
Relying on this decision Mr Nariman has argued that the subject matter of the appeal within the meaning of Order 23 rule 1 must be considered in the light of the meaning of the words cause of action in Order 2 rule 2 and it is his argument that as the cause of action in respect of the claim for instalment is entirely different from the cause of action in respect of decree which embraces within its fold the subject matter of the respective claims of the parties in the suit the withdrawal of the earlier appeal No 36 of 1981 against the instalments cannot in any way affect the maintainability of the appeal No 44 of 1981 against the decree on the merits of the claim
Mr Nariman does not dispute that though the right of an appeal is a statutory right enjoyed by a party the party in an appropriate case may lose his right of appeal
But he submits that a very strong case must be made out to establish that a party has forfeited his right to prefer an appeal
According to Mr Nariman the right 38 of appeal may be lost because of any provision of law and also in appropriate cases the parties may lose his right of appeal because of his conduct
Mr Nariman contends that in the instant case the present appeal is within time and the provisions of the Code earlier referred to or the provisions of any other law do not have the effect of extinguishing the right of the appellant to prefer an appeal against the decree
Mr Nariman submits that the facts and circumstances of this case cannot justifiably lead to the conclusion that the appellant by his conduct has disentitled himself to file the present appeal against the decree
He argues that the conduct that can be attributed to the appellant is that he prayed for instalments filed an appeal against the order regarding instalments and he has withdrawn the same
He reiterates that if the earlier appeal against the order regarding the instalments is held to be incompetent the conduct of the appellant in withdrawing the incompetent appeal is indeed of no consequence
Mr Nariman argues that the prayer for instalments is made only on the basis that if the case of the appellant is not accepted and a decree is passed against him the appellant may be granted instalments to pay the decretal amount and such a prayer when it is not known whether a decree will at all be passed against the appellant and if so for what amount can never be considered to amount to such conduct as to disentitle or preclude him from filing an appeal against the decree
Mr Nariman argues that it cannot be said that in the instant case the defendant appellant has elected to exercise one of two alternatives remedies and by virtue of such election he has deprived himself from exercising the other right as the defendant appellant has both the remedies open to him and no question of election on his part arises
Mr Nariman submits that in the facts and circumstances of this case it cannot legitimately be held that the appellant waived his statutory right to file an appeal against the decree and otherwise became estopped from exercising his right
In this connection Mr Nariman has referred to Halsbury s Laws of England 4th Edn vol 16 paras 147114721473 and 1474 at pages 992 to 996 which read as follows 1471
Waiver
Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted and is either express or implied from conduct
It may sometimes resemble a form of election and sometimes be based on ordinary principles of estoppel although unlike estoppel 39 waiver must always be an intentional act with knowledge
A person who is entitled to rely on a stipulation existing for his benefit alone in a contract or of a statutory provision may waive it and allow the contract of transaction to proceed as though the stipulation or provision did not exist
Waiver of this kind depends upon consent and the fact that the other party has acted on it is sufficient consideration
Where the waiver is not express it may be implied from conduct which is inconsistent with the continuance of the right without need for writing or for consideration moving from or detriment to the party who benefits by the waiver but mere acts of indulgence will not amount to waiver nor can a party benefit from the waiver unless he has altered his position in reliance on it
The waiver may be terminated by reasonable but not necessarily formal notice unless the party who benefits by the waiver cannot resume his position or termination would cause injustice to him
It seems that in general where one party has by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly then once the other party has taken him at his word and acted on it so as to alter his position the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him but he must accept their legal relations subject to the qualification which he has himself so introduced even though it is not supported in point of law by any consideration
Where the right is a right of action or an interest in property an express waiver depends upon the same consideration as a release
If it is a mere statement of an intention not to insist upon the right it is not effectual unless made with consideration but where there is consideration the statement amounts to a promise and operates as a release
Even where there is no express waiver the person entitled to the right may so conduct himself that it become inequitable to enforce it this is sometimes called an implied waiver but in such cases the right is lost on the ground either of estoppel or of 40 acquiescence whether by itself or accompanied by delay
Where it is claimed that the decision of a tribunal is a nullity a party s right of action in the High Court is not waived by appeal to a higher tribunal whose decision is expressed by Parliament to be final
Knowledge of rights essential
For a release or waiver to be effectual it is essential that the person granting it should be fully informed as to his rights
Similarly a confirmation of an invalid transaction is inoperative unless the person confirming knows of its invalidity
Estoppel and acquiescene
The term acquiescence  is used where a person refrains from seeking redress when there is brought to his notice a violation of his rights of which he did not know at the time and in that sense acquiescence is an element in laches
Subject to this a a person whose rights have been infringed without any knowledge or assent on his part has vested in him a right or action which as a general rule cannot be delivered without accord and satisfaction or release under seal
The term is however properly used where a person having a right and seeing another person about to commit it in the course of committing an act infringing upon the right stands by in such a manner as really to induce the person committing the act and who might otherwise have abstained from it to believe that he assents to its being committed a person so standing by cannot afterwards be heard to complain of the act
In that sense the doctrine of acquiescence may be defined as quiscence under such circumstance that assent my be reasonably inferred from it and is no more than an instance of the law of estoppel by words or conduct the principle of estoppel by representation applying both at law and in equity although its application to acquiescene is equitable
The estoppel rests upon the circumstance that the person standing by in effect makes a misrepresentation as to a fact namely his own title a mere statement that he intends to do something for 41 example to abandon his right is not enough
Further more equitable estoppel is not applied in favour of a volunteer The doctrine of acquiescene operating as an estoppel was founded on fraud and for the reason is no less applicable when the person standing by is a minor
As the estoppel is raised immediately by the conduct giving raise to it lapse of time is of no importance and for the reason the effect of acquiscence is expressly preserved by statute
Elements in the estoppel When A stands by while his right is being infringed by B the following circumstances must as a general rule be present in order that the estoppel may be raised against A 1 B must be mistaken as to his own legal rights if he is aware that he is infringing the rights of another he takes the risk of those rights being asserted 2 B must expend money or do some act on the faith of his mistaken belief otherwise he does not suffer by A s subsequent assertion of his rights 3 acquiescence is founded on conduct with a knowledge of one s legal rights and hence A must know of his own rights 4 A must know of B s mistaken belief with that knowledge it is inequitable for him to keep alliance and allow B to proceed on his mistake 5 A must encourage B in his expenditure of money or other act either directly or by abstaining from asserting his legal right
On the other hand there is no hard and fast rule that ignorance of a legal right is a bar to acquiescence in a breach of trust but the whole of the circumstances must be looked at to see whether it is just that a complaining beneficiary should proceed against a trustee Mr Nariman has argued that in the instant case the plaintiff respondent has claimed against the defendant appellant a very large sum of money and the claim has been very seriously centested by the defendant appellant who has not merely disputed the claim of the plaintiff respondent but has in fact made a counter claim in the suit against the plaintiff respondent
He points out that immediately after the pronouncement of the judgment three separate precipies or requisitions have been put in on behalf of the defendant appellant
In view of the urgency of the situation an appeal had immediately 42 been filed against the order of instalment for immediate relief and thereafter an appeal against the decree had been filed after the earlier appeal against the instalments had been withdrawn
He has submitted that under these facts and circumstances it can never be said that the appellant had accepted the decree and had abandoned its right to prefer an appeal against the same
Mr Nariman further submits that a litigant usually proceeds on the advice of his lawyer and the mistaken advice of a lawyer cannot be the foundation of the plea of estoppel and in support of his submission he relies on the decision of the Judicial Committee in the case of John Agabog Vertannes  Ors
vs James Golder Robinson  Another1 He has further argued that in the instant case no possible prejudice has been done to the respondent by the filing or withdrawal of the earlier appeal and the respondent could never in any way be under an impression that by the institution of appeal No 36 of 1981 the appellant had unequivocally given up his right to appeal from the decree on merits
Mr Nariman has commented that the Division Bench had admitted this appeal despite the objection of the plaintiff respondent and it is his comment that after having admitted the appeal the Division Bench had in fact heard the appeal for a number of days
He submits that the Division Bench should not have therefore entertained the plea of maintainability and the Division Bench should not have dismissed the appeal on the ground that the appeal is not maintainable and it is his submission that the said view of the Division Bench is any event erroneous and unsustainable in law
The learned Attorney General appearing on behalf of the plaintiff respondent has submitted that the Division Bench in the instant case has correctly come to the conclusion that the appeal preferred by the defendant appellant against the decree is not maintainable in view of the filing of the earlier appeal by the defendant appellant against the provision regarding instalments and the withdrawal of the same
The learned Attorney General has argued that the provision in the judgment regarding instalments on the basis of the affidavit filed on behalf of the defendant appellant forms part of the decree and cannot be considered to be an order
The learned Attorney General has in this connection referred to the amended provisions contained in Order 20 rule 11 of the Code of Civil Procedure
Relying on these provisions the learned Attorney General contends that the order regarding instalments which is required to 43 be incorporated in the decree necessarily forms a part of the decree itself
It is his contention that the mere fact that it may take a little time to draw up the decree incorporating the provisions regarding instalments does not make the provisions any the less a part of the decree
He argues that it was open to the appellant to prefer an appeal against the decree and it was also open to him to appeal against any part thereof
It is his argument that the appellant preferred to file an appeal only against the part of the decree regarding instalments without filing any appeal against the decree as a whole
He contends that the filing of a restricted appeal against the directions for instalments bars any subsequent appeal against the amount decreed on merits
In support of this contention the learned Attorney General has referred to the provisions contained in Order 2 rule 2 and to order 23 rule 1 of the Code of Civil Procedure
Order 2 rule 2 of the Code of Civil Procedure provides  1 Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court
2 where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished
3 A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits except with the leave of the Court to sue for all such reliefs he shall not afterwards sue for any relief so omitted
Explanation  For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action
 Order 23 rule 1 of the Code of Civil Procedure reads  1 At any time after the institution of a suit the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim  44 Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend neither the suit nor any part of the claim shall be abandoned without the leave of the Court
The Attorney General argues that an appeal is a continuation of the suit and the principles underlying Order 2 rule 2 therefore apply to an appeal
It is his argument that the right of appeal which is no doubt a statutory right will also necessarily be governed by the provisions of Order 2 rule 2 and as the appeal is filed not against the entire subject matter of appeal arising out of the cause of action in the appeal the right to file another appeal against the decree is clearly lost
He has further submitted that the defendant appellant having chosen to file an appeal only against a part of the decree confined to the payment of the decretal amount in instalments and not against the decree on its merits and having withdrawn the said appeal unconditionally has clearly forfeited his right to prefer the instant appeal
The learned Attorney General has next contended that in the instant case apart from the aspect that the right of appeal has been extinguished by virtue of the statutory provisions earlier referred to the defendant appellant must be held to have clearly abandoned or waived his right of preferring an appeal against the decree by filing an appeal only against the part of the decree directing the payment of the decretal amount in instalments
It is the argument of the Learned Attorney General that defendent appellant had the right to prefer an appeal against the whole of the decree if he had felt aggrieved by the same
He submits that if the defendant appellant does not have any grievance against the decree on merits but is only aggrieved against the par of the decree providing for instalments the defendant appellant would not certainly exercise his right of appeal against the decree on merits against which he had no grievance and the defendant appellant has filed an appeal only against the part against which he had a grievance
He submits that the defendant appellant having done so must be held to have waived his right to file an appeal against the decree on merits
The learned Attorney General has argued that in any event the defendant appellant is estopped from exercising his right of appeal in view of the fact that the defendant appellant has asked for 45 and obtained a decree payable in instalments and the defendant appellant has taken advantage of the said instalment decree to the prejudice of the plaintiff respondent
It is his argument that it is not open to the defendant appellant to question the validity of the decree after he has obtained benefit under the same
The Learned Attorney General contends that although a right to prefer an appeal is a right conferred by the Statute on a party aggrieved the aggrieved party may be estopped and or precluded from asserting or exercising the right of appeal under given circumstances
He submits that is well settled that if any party takes advantage of an order or decree or derives benefit under the same he disentitles himself by his conduct to question the validity of the order or the decree
The learned Attorney General sums up submitting that in the instant case the defendant appellant is clearly estopped from filing appeal No 44 of 1981 against the decree and the said appeal filed by the appellant is not maintainable because of the following circumstances  1
The defendant appellant has asked for the payment of the decretal amount in instalments 2
The defendant appellant had filed appeal No 361981 against the decree only with regard to the instalments allowed and the defendant appellant had not filed any appeal against the decree as a whole questioning the correctness of the decree 3
The defendant appellant had subsequently withdrawn the appeal No 361981 filed against the decree without obtaining any leave of the court to file any fresh or subsequent appeal and 4
The defendant appellant having asked for payment of the decretal amount in instalments and having obtained such a decree has enjoyed the benefit of such a decree to the prejudice of the plaintiff respondent who was prevented from executing the decree for recovering the entire decretal amount immediately in view of the provisions regarding payment in instalments and had suffered prejudice and the defendant appellant having obtained a benefit or advantage under the decree to the prejudice of the 46 plaintiff respondent cannot now turn round to question the correctness of the decree passed
The right to prefer an appeal is a right created by Statute
No party can file an appeal against any judgment decree or order as a matter of course in the absence of a suitable provisions of some law conferring on the party concerned the right to file an appeal against any judgment decree or order
The right of appeal so conferred on any party may be lost to the party in appropriate cases by the provisions of some law and also by the conduct of the party
The law of limitation may deprive a party of the right he may enjoy to prefer an appeal by virtue of any statutory provisions
Also in appropriate cases a party may be held to have become disentitled from enforcing the right of appeal which he may otherwise have
In the present case there cannot be any manner of doubt that the defendant appellant did have a right of appeal against the decree by virtue of the provisions of the Code of Civil Procedure
section 96 of the Code read with O 41 of the Code makes it abundantly clear that an appeal with lie from an original decree
It is also not in dispute that the appeal has been filed within the period of limitation
The law of limitation therefore does not defeat the right of the appellant to file appeal
The provisions of Order 20 rule 11 in our opinion do not deprive the appellant in the instant case of his right to prefer an appeal against the decree
Order 20 rule 11 of the Code provides as follows  1 Where and in so far as a decree is for the payment of money the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decree shall be postponed or shall be made by instalments with or without interest not withstanding anything contained in the contract under which the money is payable
2 After the passing of any such decree the Court may on the application of the judgment debtor and with consent of the decree holder order that payment of the decreed shall be postponed or shall be made by instalments on such terms as to the payment of inte 47 rest the attachment of the property of the judgment debtor or the taking of the security from him or otherwise as it thinks fit
 By the CPC Amendment Act 1976 O 20 R 11 1 was amended and the amended rule reads  1 Where and in so far as a decree is for the payment of money the Court may for any sufficient reason incorporate in the decree after hearing such of the parties who had appeared personally or by pleader at the last hearing before judgment an order that payment of the amount decreed shall be postponed or shall be made by instalments with or without interest notwithstanding anything contained in the contract under which the money is payable
 Order 20 rule 20 rule 11 makes provision for postponement of payment of a money decree and of its payment in instalments and lays down the procedure for directing payment of a money decree in instalments
The amendment introduced in O 20 rule 11 1 by the Amending Act 1976 requires that any provision directing that payment of the amount decreed shall be postponed or shall be made by instalments may be incorporated in the decree
In view of the provisions requiring the order of postponement of payment of money decree or payment thereof in instalments to be incorporated in the decree the question for consideration is whether the earlier appeal filed against the provision in relation to instalments is an appeal against the decree or against an order and the further question is whether the said appeal was competent or not
If the earlier appeal is considered to be an appeal against an order the earlier appeal will clearly be incompetent
An appeal against any provision granting instalments or refusing to grant instalments will not be competent if the direction granting or refusing to grant instalment is considered to be an order
Such an order is not appealable under the Code
Such an order will also not be a judgment  within the meaning of cl 15 of the Letters Patent and will not be appealable as such
There is indeed no provision in any law to make such an order appealable
If however the direction with regard to instalments is considered to be a part of the decree an appeal will undoubtedly lie as an appeal from a decree
In the instant case the facts and circumstances go to indicate that the defendant appellant 48 had in fact filed an appeal against the direction regarding instalment treating the same to be an order
The precipe filed the letter addressed by the Advocates for the defendant appellant dated 16th January 1981 to the Prothonotary and Senior Master High Court of Bombay the memorandum of appeal filed and the stamp furnished on the memorandum all go to indicate that the appeal filed was an appeal against an order
If Mr Nariman s contention that the earlier appeal No 36 of 1981 was an appeal against an order is accepted the said appeal must be held to be incompetent
There appears to be force in the contention of Mr Nariman that the earlier appeal No 36 of 1981 was an appeal against an order notwithstanding the provisions contained in Order 20 rule 11 of the Code
The rules of the Original Side of the Bombay High Court make necessary provisions as to the drawing up of a decree
An order under Order 20 rule 11 of the Code can only be incorporated in the decree when the decree is drawn up
The rules of the Original Side of the Bombay High Court make necessary provisions as to the drawing up of a decree
In view of the procedure laid down in the rules for the drawing up of a decree there is bound to be a time lag between the judgment and the drawing up of a decree in which the order regarding instalment is to be incorporated
Mr Nariman rightly points out that the earlier appeal No 36 of 1981 had been filed long before the decree in which the order regarding instalments under Order 20 rule 11 of the Code had to be incorporated had been drawn up and had come into existence with the orders incorporated therein
There appears to be force in the contention of Mr Nariman that so long as the decree incorporating the order regarding the instalments in terms of the provisions contained in the amended provisions of Order 20 rule 11 of the Code is not drawn up the direction or order regarding instalments retains the character of an order in law
Order 20 rule 11 of the Code clearly postulates that the direction regarding postponement of payment of money decree or payment thereof in instalments is an independent order which is to be incorporated in the decree
Appeal No 36 of 1981 had been filed soon after the pronouncement of the judgment before the decree incorporating the order regarding the instalments had been drawn up
The direction regarding payment of the decretal amount is an order which is required to be incorporated in the decree and it can only be incorporated in the decree when the decree is drawn up
It retains the character of an order till it is so incorporated in the decree
As at the time of filing the earlier appeal No 36 of 1981 the order regarding instalments had not been incorporated in the decree the order retained 49 its character of an order
The earlier appeal No 36 of 1981 at the time when it was filed should therefore be regarded as an appeal against an order
The precipe filed for the drawing up of the order the letter to the Prothonotary and Senior Master of the High Court by the Advocates for the defendant appellant the memorandum appeal filed and the amount of stamp furnished on the memorandum are facts which go to indicate that the earlier appeal had been filed against an order regarding instalments treating the same to be an order
Even if we accept the contention of the learned Attorney General that the earlier appeal No 36 of 1981 must in law be held to be an appeal against a decree as the order regarding instalments has to form in law a part of the decree by virtue of the provisions contained in amended rule 11 of order 20 of the Code the appeal will still be incompetent because the defendant appellant had furnished the amount of stamp necessary for preferring an appeal against an order and the requisite stamp in respect of an appeal against a decree had not been affixed
If the earlier appeal No 36 of 1981 were to be considered to be an appeal against the decree the appeal would not be competent for want of payment of requisite Court fee payable in respect of an appeal against the decree
Though by virtue of the provisions contained in the Original Side Rules of the High Court an appeal may be filed without the certified copy of the decree or order a provision made to enable the party to seek immediate interim relief from the Appellate Court the further requirement to file a certified copy of the decree in the case of an appeal from a decree within the period of limitation to make the appeal valid and competent has still to be satisfied Unless a certified copy of the decree is filed the appeal does not become competent and the appeal is liable to be dismissed as incompetent and invalid for not filing the certified copy of the decree within the period of limitation
So long as the certified copy of the decree is not filed there is no valid appeal in the eye of law
In the case of Jagat Dhish Bhargava vs Jawaharlal Bhargava supra this Court held at page 922 The position of law under O 41 r 1 is absolutely clear
Under the said rule every appeal has to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in that behalf and has to be accompanied by a copy of the decree appealed from and of the judgment on which it is founded
Rule 1 empowers the 50 appellate Court to dispense with the filing of the judgment but there is no jurisdiction in the appellate Court to dispense with the filing of the decree
Where the decree consists of different distinct and severable directions enforceable against the same or several defendants the Court may permit the filing of such portions of the decree as are the subject matter of the appeal but that is a problem with which we are not concerned in the present case
In law the appeal is not so much against the judgment as against the decree that is why Article 156 of the Limitation Act prescribes a period of 90 days for such appeals and provides that the period commences to run from the date of the decree under appeal
Therefore there is no doubt that the requirements that the decree should be filed along with the memorandum of appeal is mandatory and in the absence of the decree the filing of the appeal would be incomplete defective and incompetent Also in the case of Shankuntala Devi vs Kuntal Kumari supra this Court held at pp
1008 to 1010 Order 41 rule 1 of the Code provides that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and the memorandum shall be accompanied by a copy of the decree appealed from and unless the appellate court dispenses therewith of the judgment on which it is founded 
Under 041 r 1 the appellate Court can dispense with the filing of the copy of the judgment but it has no power to dispense with the filing of the copy of the decree
A decree and a judgment are public documents and under section 77 of the Evidence Act only a certified copy may be produced in proof of their contents
The memorandum of appeal is not validly presented unless it is accompanied by certified copies of the decree and the judgment
The contention of Mr Misra is that a decree is the formal expression of the adjudication and that where as in this case no formal decree is drawn up the determination under sec
47 is a judgment and the Court having admitted the appeal must be presumed to have 51 dispensed with the filing of the copy of the judgment
In this connection he drew our attention to sec
22 33 and 020 rules 1 4 6
We are unable to accept these contentions
We are not satisfied that the High Court dispensed with the filing of the copy of the order under Sec
Admittedly the High Court did not pass any express order to that effect
It may be that in a proper case such an order may be implied from the fact that the High Court admitted the appeal after its attention was drawn to the defect see GIP Railway Co vs Radhakissan1
But in the present case the High Court was not aware of the defect and did not intend to dispense with the filing of the copy
Moreover an order under Sec
47 is a decree and the High Court had no power to dispense with the filing of a copy of the decree
Ordinarily a decree means the formal expression of the adjudication in a suit
The decree follows the judgment and must be drawn up separately
But under sec
22 the term decree  is deemed to include the determination of any question within sec
This inclusive definition of decree applies to 041 r 1
In some courts the decision under sec
47 is required to be formally drawn up as a decree in that case the memorandum of appeal must be accompanied by a copy of the decree as well as the judgment
But in some other Courts no separate decree is drawn up embodying the adjudication under sec
In such a case the decision under sec
47 is the decree and also the judgment and the filing of a certified copy of the decision is sufficient compliance with 041 r 1
As the decision is the decree the appeal is incompetent unless the memorandum of appeal is accompanied by a certified copy of the decision
Our attention was drawn to the decision in Bodh Narain Mahto vs Mahabir Prasad  Ors2 where Agarwala J seems to have held that where no formal decree was prepared in the case of a decision under sec47 the appellant was not required to file a copy of the order with the memorandum of appeal
We are unable 52 to agree with this ruling
The correct practice was laid down in Kamla Devi vs Tarapada Mukherjee1 where Mookerjee J observed Now it frequently happens that in cases of execution proceedings though there is a judgment an order that is the formal expression of the decision is not drawn up
In such cases the concluding portion of the judgment which embodies the order may be treated as the order against which the appeal is preferred
In such a case it would be sufficient for the appellant to attach to his memorandum of appeal a copy of the judgment alone and time should run from the date of the judgment
Where however as in the case before us there is a judgment stating the grounds of the decision and a separate order is also drawn up embodying the formal expression of the decision copies of both the documents must be attached to the memorandum and the appellant is entitled to a deduction of the time taken up in obtaining copies thereof
We hold that the memorandum of appeal from the order dated January 20 1967 should have been accompanied by a certified copy of the order and in the absence of the requisite copy of the appeal was defective and incompetent Though by virtue of the provisions of the Original Side Rules of the Bombay High Court the earlier appeal could be permitted to be filed without a certified copy of the decree or order the appeal would not be valid and competent unless the further requirement of filing the certified copy had been complied with
At the time when the earlier appeal No 36 of 1981 had been withdrawn the certified copy of the decree had not been filed
The said appeal without the certified copy of the decree remained an incompetent appeal
The withdrawal of an incompetent appeal which will indeed be no appeal in the eye of law cannot in any way prejudice the right of any appellant to file a proper appeal if the right of appeal is not otherwise lost by lapse of time or for any other valid reason
We are therefore of the opinion that the provisions contained in order 20 53 rule 11 of the Code do not in the facts and circumstances of the present case deprive the appellant of his right to file an appeal against the decree
The provisions of O 2 rule 2 of the Code of Civil Procedure do not stand in the way of the appellant in the matter of filing the subsequent Appeal No 44 of 1981
Order 2 rule 2 deals with suits and provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court
Order 2 rule 22 further provides that where the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished
The requirement of Order 2 rule 23 is that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits except with the leave of the Court to sue for all such reliefs he shall not afterwards sue for any relief so omitted
The explanation provides that for the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action
It is clear from the provisions of Order 2 rule 2 that this rule is applicable only to suits and cannot in terms apply to appeals
Even if an appeal be considered to be a continuation of a suit for certain purposes the provision of Order 2 rule 2 cannot in terms be made applicable to an appeal in view of the scheme of the said rule and the language used therein
Order 2 rule 2 contemplates that at the initial stage of the institution of the suit the whole of the claim which the plaintiff is entitled to make in respect of the cause of action has to be made and further deals with the consequences of non compliance with the requirements of the said rule
It is indeed doubtful whether the principles underlying this rule can be said to be applicable to an appeal
Even if the principles underlying Order 2 rule 2 can be considered to apply to an appeal the maintainability of the instant case cannot be held to be affected in any way as the cause of action in respect of the present appeal is entirely different from the cause of action on the basis of which the earlier appeal had been filed
Order 23 rule 1 of the Code of Civil Procedure does not also stand in the way of the maintainability of the instant appeal
The 54 withdrawal of the earlier appeal which was not competent and was no appeal in the eye of the law and which was only concerned with regard to the provision of instalment cannot in any way effect the validity of the present appeal
Apart from the incompetency of the earlier appeal No 36 of 1981 the subject matter of the said appeal was entirely different from the subject matter of the present appeal
It may further be noted that the provisions of the Code of Civil Procedure contained in Order 20 rule 11 order 2 rule 2 and Order 23 rule 1 do not in terms deal with any question in relation to the right of appeal or the extinguishment thereof
The aforesaid provisions do not by themselves confer any right of appeal on a party or deprive any party of the right of appeal which a party may enjoy
These are not the statutory provisions which either confer a right of appeal on a party or deprive a party of any such right
We have earlier considered the effect of there provisions and we are of the opinion that these provisions do not in the facts and circumstances of this case have the effect of depriving the defendant appellant of his right to file the present appeal
The only other question that requires to be considered is whether the defendant appellant in the facts and circumstances of this case has become disentitled to file the instant appeal after the filing of the earlier appeal and the withdrawal of the same
It is beyond question that the right of appeal which is no doubt a creature of statute may be lost to a party in a proper case and an appellant may be debarred from exercising the right of the appeal Whether any party has lost his valuable right of preferring an appeal conferred on him by law must necessarily depend upon the facts and circumstances of a particular case
The facts and circumstances which have been relied upon in support of the submission that the defendant appellant in the instant case has become disentitled to file the present appeal No 44 of 1981 are 1 the defendant appellant filed an affidavit asking for postponement of payment of the decretal amount in instalments 2 the dafendant appellant filed an appeal only against the direction regarding instalments before the filing of the present appeal against the decree on merits 3 the defendant appellant had withdrawn the earlier appeal without obtaining leave of Court to file any fresh appeal 4 the defendant appellant had obtained benefit of the instalment decree passed by the trial Court
We may not that the 55 ground which weighed with the learned judges of the Division Bench of the Bombay High Court was the filing of an appeal against only the provision regarding instalments and not against the decree on merits
We shall now proceed to consider whether the facts and circumstances of this case justifiably lead to the conclusion that the defendant appellant has become disentitled to file the present appeal
It is not in dispute that the defendant appellant had filed an affidavit asking for postponement of payment of any money decree that may be passed and also for payment of the amount in instalments
The filing of an affidavit on the conclusion of hearing and before pronouncement of judgment cannot in the facts and circumstances of this case be considered to amount to such conduct on the part of the defendant appellant as to disentitle him to file an appeal against any decree that may ultimately be passed against him
In view of the provisions contained in Order 20 rule 11 1 of the Code the prayer for instalment has necessarily to be made before the pronouncement of the judgment and the passing of a decree as the Court after the passing of the decree can grant instalments only with the consent of the decree holder in terms of the provisions contained in Order 20 rule 11 2 of the Code
Till the very last stage of the hearing of the suit the defendant appellant had seriously contested the claim of the plaintiff respondent and had in fact pressed for a counter claim against the plaintiff respondent
Before the delivery of judgment the defendant appellant could not possibly have known with any amount of certainty whether an decree against the defendant appellant would be passed in the suit and if so for what amount
Under such circumstances it cannot be said that any party who in view of the provisions contained in Order 20 rule 11 1 makes a prayer for postponement of payment of the decretal amount and asks for payment of the same in instalments makes any representation that he will accept any decree that may be passed against him and will not prefer any appeal against the same
A mere prayer for postponement of payment of the decretal amount or for payment thereof in instalments on the basis of the provisions contained in Order 20 rule 11 1 of the Code at a time when the decision in the suit is yet to be announced can never be considered to amount to such conduct of the party as to deprive him of his right to prefer an appeal against any decree if ultimately passed and to disentitle him from filing an appeal against the decree
It is no doubt true that 56 after the judgment had been pronounced and the decree had been passed it was open so the defendant appellant to file an appeal against the decree
It may be noted that immediately after the pronouncement of judgment and the passing of the decree three separate precipes or requisitions had been filed on behalf of the defendant appellant to the Prothonotary and Senior Master of the Bombay High Court and there was a specific requisition for a certified copy of the decree when drawn up apart from requisitions for a certified copy of the judgment and also for certified copy of the minutes of the order
The immediate filing of the requisition for the certified copy of the decree and also of the judgment clearly manifests the intention of the defendant appellant to prefer an appeal against the decree
It is common knowledge that in matters of litigation the litigant who is not expected to be familiar with the formalities of law and rules of procedure is generally guided by the advice of his lawyers
The statement of the lawyers recorded by the Division Bench in its judgment clearly goes to indicate that the lawyer had advised filing of the earlier appeal under a mistaken belief
The act done by the defendant appellant on the mistaken advice of a lawyer cannot furnish a proper ground for depriving the defendant appellant of his valuable statutory right of preferring an appeal against the decree
We have already held that the earlier appeal No 36 of 1981 against the provision regarding instalments was incompetent and the filing of an incompetent appeal or the withdrawal of the same does not entail any legal consequences prejudicing the right of the defendant appellant to file a proper appeal against the decree
The question which still remains to be considered is whether the act of filing an appeal against the order regarding instalments and not filing an appeal against the decree when it was open to the defendant appellant to do so can be regarded to constitute such conduct on the part of the defendant appellant as to disentitle him to maintain the present appeal
The filing of an incompetent appeal on the mistaken advice of a lawyer cannot in our opinion reflect any such conduct on the part of the defendant appellant
An appeal which is not competent is necessarily bound to fail and in such a case the proper course for an appellant would be to file a valid and competent appeal
The filing of an incompetent appeal and withdrawal of the same do not prejudice the right to file a proper appeal and cannot be held to constitute such conduct on the part of an appellant as to deprive him of his right to file a valid appeal
The filing of the earlier appeal No 36 of 1981 cannot in 57 the facts and circumstances of this case be said to manifest any intention on the part of the defendant appellant that he would not prefer an appeal against the decree and the same does not amount to any representation that the otherwise accepts the decree
In judging the conduct of the defendant appellant to decide whether the defendant appellant had abandoned relinquished or waived his right of appeal against the decree all the relevant facts and circumstances which have a bearing on the question have to be considered
The facts and circumstances of this case clearly go to indicate that the defendant appellant had felt aggrieved by the decree and had not manifested any intention to accept the same and not to prefer an appeal against the decree
As we have earlier seen the defendant appellant had not only denied and disputed the case of the plaintiff respondent but had also made a counter claim in the suit against the plaintiff respondent
The defendant appellant had throughout contested the suit and the claim of the plaintiff respondent with all seriousness
Immediately on the pronouncement of judgment the defendant appellant clearly manifested its intention of preferring an appeal against the decree by causing the necessary requisition for the certified copy of the decree and judgment to be filed
The stakes involved in the suit of the defendant appellant were very high and the judgment and the decree in the suit had gone against the defendant appellant
In this background the filing of the earlier appeal on the mistaken advice of the lawyer cannot in our opinion legitimately lead to the conclusion that the defendant appellant had abandoned or relinquished his right to prefer the present appeal and that the defendant appellant had become disentitled to file the same
The further fact that the earlier appeal No 36 of 1981 was withdrawn the very next day after the same had been filed at the stage of admission and the present appeal came to be filed just a week after the withdrawal of the earlier appeal clearly establishes that the defendant appellant had never intended to relinquish or abandon its right to file an appeal against the decree
The earlier appeal No 36 of 1981 which was filed on 2011981 and was withdrawn on 2111981 at the time of admission could not possibly have caused any prejudice to the plaintiff respondent
The promptitude with which the present appeal was filed just after a week on 2911981 indicates that the defendant appellant had never intended to give up their right of appeal against the decree and they have acted with all promptness and earnestness on being properly advised as to the legal position and as to their legal rights
The filing of the earlier appeal No 36 of 1981 in the facts and circumstances of this case 58 does not amount to any representation or promise on the part of the defendant appellant to accept the decree on merits and not to prefer an appeal from the same
There is also no question of election on the part of the defendant appellant in preferring an appeal against the order regarding the instalment and not against the decree on merits
It is not a case where a party is called upon to elect one of two alternative remedies when by a election of one of two alternative remedies he loses his right to pursue the other
In the instant case the defendant appellant has a statutory right to prefer an appeal against the decree and any question of election on his part does not aries
The withdrawal of the earlier appeal No 36 of 1981 without obtaining the leave of Court does not in the facts and circumstances of this case affect in any way the maintainability of the present appeal
We have already held that the earlier appeal No 36 of 1981 was an incompetent appeal and the withdrawal of the incompetent appeal in the instant case did not have prejudice in any way the right of the defendant appellant to file a proper appeal against the decree
The withdrawal of the earlier appeal at the stage of admission on the very next day after the same had been filed and the filing of the present appeal just after a week thereafter on the other hand have a bearing on the conduct of the defendant appellant and they manifestly make it clear that the defendant appellant had always intended to file an appeal against the decree and it never intended to give up his right of appeal against the decree
In the instant case we are not satisfied that the defendant appellant had obtained any advantage under the decree to preclude him from filing an appeal against the same
Even before any instalment had fallen due under the decree the defendant appellant had filed the earlier appeal No 36 of 1981 against the provisions regarding instalments
It is to be noted that instead of taking or getting any advantage under the decree in the matter of granting instalments the defendant appellant had challenged the same long before the question of deriving any benefit thereunder had come
As we have earlier noticed the defendant appellant had withdrawn the earlier appeal the very next day and had filed the present appeal within eight days thereafter
In an appropriate case any party which derives any advantage under a decree or order may depending on the facts and circumstances of the case disentitle himself to challenge the same and will be estopped from filing an appeal against the same 59 It is also to be borne in mind that no execution of decree passed in a suit on the original side is normally permitted unless a certified copy of the decree is on the record in the execution proceeding
A certified copy of the decree is not available so long as the decree is not drawn up and filed
The present appeal had been filed long before the decree had been drawn up and therefore there could be no question of execution of any decree at the time when the present appeal was filed
The question of the defendant appellant having obtained an advantage under the decree does not therefore really arise
In the case of Bhau Ram vs Baijnath1 this Court observed at p 362 It seems to us however that in the absence of some statutory provision or of a well recognised principle of equity no one can be deprived of his legal rights including a statutory right of appeal
 We have earlier held that no statutory provision deprives the defendant appellant of his right to file the present appeal
We have carefully considered the facts and circumstances of this case and the facts of this case also do not attract any well recognised principle of equity to deprive the appellant of his very valuable statutory right of appeal
The various passages from Halsbury relied on by Mr Nariman which we have earlier quoted lend support to the view that the defendant appellant in the instant case by reason of its conduct or otherwise is not estopped or has not become disentitled to file the appeal
In the result the appeal has to be allowed
We therefore set aside the judgment and decree of the Division Bench of the Bombay High Court dismissing the appeal of the defendant appellant on the ground of maintainability
We remand the appeal to the High Court for decision on merits
In the facts and circumstances of this case we make no order as to costs
HSK Appeal allowed


Summary:
The respondent as plaintiff filed a suit against the appellant as defendant in the Original side of the Bombay High Court for the enforcement of its claim for a large amount of over Rs 40 lakhs
The appellant not only contested the claim but also made a counter claim
The appellant made a request that in the event of a decree being passed against them they may be allowed to pay the decretal amount in instalments
A single Judge dismissed the counter claim and passed a decree in favour of respondent and allowed the decretal amount to be paid in instalments
Delivery of Judgment which commenced on 12th December 1980 was concluded on 16th December 1980 upon which the advocates for the appellant addressed a letter to the Prothonotary and Senior Master High Court requesting that the accompanying memorandum of appeal be taken on file
This appeal which was numbered 36 of 1981 26 was filed on 20th January 1981
The appeal was directed against the order in respect of instalments
On 21st January 1981 when the matter was called for admission before a Division Bench the appellant asked for leave to withdraw the appeal and the appeal was allowed to be withdrawn
A week after the withdrawal of appeal No 36 the appellant filed an appeal against the judgment taking grounds relating to the merits of the case and also the direction as to instalments
This appeal was numbered 44 of 1981
After this appeal was heard on merits for a few days the respondent raised a preliminary objection that because the appellant had earlier filed appeal No 36 against the provision regarding instalments and which had been withdrawn the present appeal No 44 was not maintainable
The Division Bench upheld the preliminary objection and dismissed appeal No 44 on the ground that the appellant had by filing appeal No 36 against the provision relating to instalments abandoned its right to challenge the decree on merits
The appellant contended in this Court that the filing of earlier appeal No 36 or the withdrawal thereof does not affect the right of appellant to prefer appeal No 44 against the decree on merits
Appeal No 36 was filed against the order of the High Court passed under Order 20 r 11 of the Code of Civil Procedure in regard to instalments only and not against the decree
Appeal No 36 had been filed soon after the judgment had been pronounced and long before the decree incorporating the order regarding instalments had been drawn up
Appeal No 36 must be considered to be an appeal against the order and not against the decree
The right to prefer an appeal is a creature of statute
The order regarding instalments is not appealable under CPC and such an order cannot also be considered to be a Judgment  within the meaning of clause 15 of the Letters Patent
Appeal No 36 which was against the order regarding instalments was incompetent and was therefore no appeal in the eye of law and for all legal purposes was non est
Even if appeal No 36 has to be considered an appeal against the decree in view of amended provision of Order 20 r 11 of CPC the said appeal still must be held to be incompetent and no appeal in the eye of law as the appeal was filed without a certified copy of the decree and was even withdrawn before a certified copy of the decree could be filed
Appeal No 44 filed against the decree in terms of the provisions contained in the Original Side Rules of Bombay High Court becomes a proper and competent appeal as the earlier appeal No 36 was not a valid appeal in the eye of law
The provisions of Order 2 r 2 and Order 23 r 1 of CPC do not in any way affect the maintainability and the merits of appeal No 44 as the cause of action and the subject matter of appeal No 44 are entirely different from the cause of action and the subject matter of appeal No 36
The appellant did not waive his statutory right to file the appeal
The appellant by his conduct has also not disentitled himself to file Appeal No 44
Appeal No 36 was filed on the advice of lawyer under mistaken belief mistaken advice of a lawyer cannot be the foundation of a plea of estoppel
No prejudice has been caused to the respondent by filing and withdrawal of appeal No 36 by the appellant
The respondent contended that in view of the amended provisions of Order 20 r 11 the order regarding instalments which is required to be incorporated in the decree necessarily forms a part of the decree
In view of the 27 provisions contained in Order 2 r 2 and Order 23 r 1 of CPC it was open to the appellant to prefer an appeal against the decree or to appeal against any part thereof
The appellant preferred to file appeal No 36 only against the part of the decree relating to instalments and not against the decree as a whole
The filing of appeal restricted to the directions as to the instalments bars a subsequent appeal against the decree on merits
The appellant having obtained a benefit or advantage under the decree to the prejudice of respondent cannot now question the correctness of the decree passed
Allowing the appeal  HELD The provisions of Order 20 r 11 Order 41 r 1 Order 5 r 2 and Order 23 r 1 of the Code of Civil Procedure do not deprive the appellant of his right to file appeal No 44
54 D The right to prefer an appeal is a right created by statute
A right of appeal may be lost to a party in appropriate cases by the provisions of law and also by the conduct of the party
The law of limitation may deprive the party of the right he may enjoy to prefer an appeal
Also in appropriate cases a party may be held to have become disentitled from enforcing the right to appeal which he may otherwise have
46 A C In the instant case the defendant appellant did have a right of appeal against the decree by virtue of the provisions of section 96 read with Order 41 of Civil Procedure
The appeal has been filed within the period of limitation The law of limitation therefore does not defeat the right of the appellant to file an appeal
46 C D Order 20 r 11 makes provisions for postponement of payment of money decree and of its payment in instalments and lays down the procedure for directing payment of a money decree in instalments
The amendment introduced in 1976 to Order 20 r 11 requires that any provision directing the payment of the amount decreed shall be postponed or shall be made by instalments may be incorporated in the decree
The direction regarding payment of the decretal amount is an independent order which is required to be incorporated in the decree and it can only be incorporated in the decree when the decree is drawn up
It retains the character of an order till it is so incorporated in the decree
The rules of the Original Side of the Bombay High Court make necessary provisions as to the drawing up of a decree
In view of procedure laid down in the rules for the drawing up of a decree there is bound to be a time lag between the judgment and the drawing up of a decree in which the order regarding instalment is to be incorporated
Appeal against any provision granting instalments or refusing to grant instalments will not be competent if the direction granting or refusing to grant instalments is considered to be an order
Such an order is not appealable under the Code
Such an order will also not be a judgment  within the meaning of clause 15 of the Letters Patent and will not be appealable as such if however the direction with regard to instalments is considered to be a part of the decree an appeal will undoubtedly lie as an appeal from a decree
47 D E 41 G H 41 C D 47 F H 28 The provisions of Order 20 r 11 do not deprive the appellant in the instant case of his right to prefer an appeal against the decree
The earlier appeal No 36 of 1981 had been filed long before the decree in which the order regarding instalments under Order 20 r11 of the Code was to be incorporated had been drawn up
As at the time of filing the earlier appeal No 36 the order regarding instalments had not been incorporated in the decree the order retained its character of an order
The earlier appeal No 36 at the time when it was filed should therefore be regarded as an appeal against an order
The precipe filed for the drawing up of the order the letter to the Prothonotary and Senior Master of the High Court by the Advocates for the appellant the memorandum of appeal filed and the amount of stamp furnished on the memorandum are facts which go to indicate that the earlier appeal had been filed against the order regarding instalments treating the same to be an order
The appeal No 36 must therefore be held to be incompetent
If the earlier appeal No 36 were to be considered to be an appeal against the decree the appeal would still be incompetent because the appellant had furnished the amount of stamp necessary for preferring an appeal against the order and the requisite stamp in respect of an appeal against a decree had not been affixed
46 E 48 D E 48 H 49 A B 48 B 43 D C Under Order
41 r1 every appeal has to be preferred in the from of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in that behalf and has to be accompanied by a copy of the decree appealed from and of the judgment on which it is founded
Rule 1 empowers the appellate court to dispense with the filing of the judgment but there is no jurisdiction in the appellate court to dispense with the filing of the decree
The requirement that the decree should be filed alongwith the memorandum of appeal is mandatory and in the absence of the decree the filing of the appeal would be incomplete defective and incompetent
So long as the certified copy of the decree is not filed there is no valid appeal in the eye of law
Though by virtue of the provisions of the Original Side Rules of the Bombay High Court the earlier appeal could be permitted to be filed without a certified copy of the decree or order the appeal would not be valid and competent unless the further requirement of filing the certified copy had been complied with
49 G H 50 A 53 C F In the instant case at the time when the earlier appeal No 36 had been withdrawn the certified copy of the decree had not been filed
The said appeal without the certified copy of the decree remained an incompetent appeal
The withdrawal of an incompetent appeal which would indeed be no appeal in the eye of law cannot in any way prejudice the right of any appellant to file a proper appeal if the right of appeal is not otherwise lost by lapse of time or for any other valid reason
52 F G Order 2 r2 contemplates that at the time of the institution of the suit the whole of the claim which the plaintiff is entitled to make in respect of the cause of action has to be made and also deals with the consequences of non compliance with the requirements of the said rule
It is doubtful whether the principles underlying this rule can be said to be applicable to an appeal
This rule is applicable only to suits and cannot in terms apply to appeals
Even if 29 an appeal be considered to be a continuation of a suit for certain purposes the provision of this rule cannot in terms be made applicable to an appeal in view of the scheme of the said rule and the language used therein
53 F G 53 E F In the instant case the provisions of Order 2 r2 of the Code do not stand in the way of the appellant in the matter of filing the subsequent appeal No 44
Even if the principles underlying Order 2 r2 are considered as applicable to an appeal the maintainability of the appeal No 44 cannot be held to be affected in any way as the cause of action in respect of the present appeal is entirely different from the cause of action on which the earlier appeal was filed
23 A B G Order 23 r1 of the Code does not also stand in the way of the maintainability of the instant appeal No 44
Apart from the incompetency of the earlier appeal No 36 the subject matter of the said appeal was entirely different from the subject matter of the present appeal
53 H A B The provisions of the Code of Civil Procedure contained in Order 20 r11 Order 2
r 2 and Order 23r
1 do not in terms deal with any question in relation to the right of appeal or the extinguishment thereof
These provisions do not by themselves confer any right of appeal on a party or deprive any party of the right of appeal which a party may enjoy
These are not the statutory provisions which either confer a right of appeal on a party or deprive a party of any such right
54 B C A mere prayer for postponement of payment of decretal amount or for payment thereof in instalments on the basis of the provisions contained in Order 20 r11 1 of the Code at a time when the decision in the suit is yet to be announced can never be considered to amount to such conduct of the party as to deprive him his right to prefer an appeal against any decree if ultimately passed and to disentitle him from filing an appeal against the decree
55 G H In the matters of litigation the litigant who is not expected to be familiar with the formalities of law and rules of procedure is generally guided by the advice of his lawyers
The statement of the lawyers recorded by the Division Bench in its judgment clearly goes to indicate that the lawyer had advised filing of the earlier appeal under mistaken belief
The act done by the defendant appellant on the mistaken advice of a lawyer cannot furnish a proper ground for depriving the defendant appellant of his valuable statutory right of preferring an appeal against the decree
The filing of an incompetent appeal on the mistaken advice of a lawyer cannot in our opinion reflect any such conduct on the part of the defendant appellant as to disentitle him to maintain the present appeal
56 C D F G The present appeal No 44 had been filed long before the decree had been drawn up and there can be no question of execution of any decree at the time when that appeal was filed
The question of the defendant appellant having obtained an advantage under the decree does not therefore really arise
59 A B 30