Appeal No 582 of 1969
Appeal from the Judgment and Decree dated the 19th March 1968 of the Bombay High Court at Nagpur in First Appeal No 72 of 1959
M N Phadke R A Gupta and K B Rohatgi for the Appellant
B N Lokur Arun Kumar Sanghi and A G Ratnaparkhi for the The Judgment of the Court was delivered by CHANDRACHUD J
This is a plaintiff s appeal on a certificate granted by the High Court of Bombay Nagpur Bench under Article 1331a of the Constitution On March 24 1953 defendant 1 executed on behalf of himself and his minor son defendant 2 a deed of mortgage in favour of the plaintiff
Defendant 3 is also a son of defendant 1 but he was born after the mortgage deed on September 30 1955
On January 11 1956 a registered deed of partition was executed amongst the defendants under which the mortgaged property was allotted to the share of defendants 2 and 3 884 On September 1 1956 the mortgagee filed Civil Suit No 3A of 1956 to enforce the mortgage
On September 20 1958 the trial court passed a preliminary decree for sale of defendant 1 s interest in the mortgaged property
It held that part of the consideration for the mortgage was not supported by legal necessity and the balance of the debt incurred on the mortgage was tainted with immorality
Though therefore defendant 1 had executed the mortgage as a manager of the joint Hindu family consisting of himself and defendant 2 the debt was held not binding on the one half share of defendant 2 in the mortgaged property
On the issue relating to the genuineness of the partition effected by defendant 1 between himself and his suits the trial court recorded a finding that it wag a sham and colourable transaction and its object was to delay or 1 defeat the creditors
Being aggrieved by
the decree directing the sale of half the mortgaged property only the plaintiff filed First Appeal No 40 of 1959 in the High Court of Bombay
Though the suit was dismissed as against defendants 2 and 3 they also filed an appeal in the High Court to challenge the finding of the trial court that the deed of partition was a sham and colourable transaction
That was First Appeal No 72 of 1959
During the pendency of these two appeals the preliminary decree was made final by the trial court on October 23 1958
On March 2 1960 the plaintiff purchased with the permission of tile court a joint half share in the mortgaged property in full satisfaction of his decree
On September 21 1960 the auction sale was confirmed and on November 25 1960 the plaintiff was put in joint possession of the property
On March 15 1966 the appeals filed by the plaintiff and by defendants 2 and 3 came up for hearing before a
Division Bench consisting of Abhyankar and Deshmukh JJ
The hearing of the appeals was adjourned from time to time and while the appeals were part heard defendants 2 and 3 applied on August 2 1966 for amendment of their Memorandum of Appeal in First Appeal No 72 of 1959
By the proposed amendment they sought leave of the High Court to challenge the preliminary decree passed by the trial court
The plaintiff opposed that amendment and applied that she did not desire to prosecute First Appeal No 40 of 1959 filed by her
The High Court did not pass any orders either on the application for amendment made by defendants 2 and 3 or on the application of the plaintiff asking that her appeal be dismissed for non prosecution
On August 24 1966 the High Court adjourned the hearing of the appeals for three months to enable defendants to pay the amount due under the preliminary decree
On November 24 1966 defendants 2 and 3 deposited Rs 12500 and applied for an extension of two months for paying the balance
The extension was granted by the High Court and on fabruary 25 1967 defendants 2 and 3 deposited a further sum of Rs 25000 towards the satisfaction of the preliminary decree
On February 14 1968 another Division Bench of the High Court Tambe and Badkas JJ allowed the application of defendants 2 and 3 for amendment of their Memorandum of Appeal in First 885 Appeal No 72 of 1959
On an application made by their counsel the High Court granted to those defendants time till February 23 1968 to pay the deficit court fees which they did
The High Court then took up the two First Appeals
for hearing in March 1968
As the plaintiff had applied that she did not desire to proceed with First Appeal No 40 of 1959 filed by her the High Court dismissed that appeal for non prosecution
As a consequence of this order the High Court observed that the findings recorded by the trial court in favour of the defendants and adverse to the plaintiff would stand confirmed
In First Appeal No 72 of 1959 filed by defendants 2 and 3 it was urged by the plaintiff that as the appeal was originally filed to challenge the finding of the trial court on the question of genuineness of the partition
defendants 2 and 3 were not entitled to include now grounds in the Memorandum of Appeal and that the Memorandum should not have been permitted to be amended
The High Court hold that in view of the Provisions of Order 41 Rule 2 Civil Procedure Code
it was oven to defendants 2 and 3
with leave of the court to urge additional grounds in their appeal without amending the Memo randum of appeal and therefore the objection raised by the plaintiff as against the amendment was futile
The High Court further held that the appeal filed by defendants 2 and 3 was competent even though the suit was wholly dismissed as against them
According to the High Court defendants 2 and 3 were aggrieved by the adverse finding on the question of partition and further they were denied under the preliminary decree the right to pay the decretal amount and to redeem the mortgage
It was there fore open to them to file an appeal against that decree
On the merits of the appeal the High Court set aside the finding of the trial court and held that the partition was real and genuine and that it was not effected in order to defeat lie creditors
Defendants 2 and 3 bad therefore become owners of the equity of redemption and they could not be deprived of the right to redeem the mortgage
In the result the High Court set aside the preliminary decree as also the final decree and with it the auction sale in favour of the plaintiff
The High Court passed a fresh preliminary decree under Order 34 Rule 4 Civil Procedure Code declaring that the plaintiff was entitled to recover Rs 34 386 and odd and directing the defendants to pay the entire decretal amount within six months of the date of decree
The plaintiff questions the correctness of that decree in this appeal
It is necessary first to understand the nature of the appeal filed by defendants 2 and 3 in the High Court and the relief they sought therein
That appeal was in terms filed only against the finding recorded by the trial court that the partition between defendant 1 and his sons was a sham and colourable transaction intended to defeat or delay the creditors
The Memorandum of Appeal as filed originally contained 886 seven grounds each of which was directed against the finding given by the trial court on the question of partition
The Memorandum contained a note that as the subject matter in dispute was not capable of being estimated in terms of a money value a fixed court fee of Rs 20 was paid thereon
Only one prayer was originally made in the Memorandum of Appeal that the partition deed be declared as genuine
Counsel for defendants 2 and 3 furnished to the registry of the High Court a written explanation as required by Rule 171 of the High Court Rules that as defendants 2 and 3 were only challenging the finding recorded by the trial court on the question of partition and as they were merely seeking a declaration that the partition was genuine the fixed court fee of Rs 20 was properly paid
It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against mere finding recorded by the trial court that the partition was not genuine
The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well established
There is a basic distinction between the right of suit and the right of appeal
There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may at one s peril_bring a suit of one s choice
It is no answer to a suit howsoever frivolous the claim that the law confers no such right to sue
A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit
But the position in regard to appeals is quite the opposite
The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law
That explains why the right of appeal is described as a creature of statute
Under section 961 of the Code of Civil Procedure save where otherwise expressly provided by the Code or by any other law for the time being in force an appeal lies from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court
Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court
Section 1041 provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie from no other orders
Clause i of this section provides for an appeal against any orders made under Rules from which an appeal is expressly allowed by rules Order 43 Rule 1 of the Code which by reason of clause i of section 1041 forms a part of that section provides for appeals against orders passed under various rules referred to in clauses a to w thereof Finally section 1051 of the Code lays down that save as otherwise expressly provided no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction
These provisions show that under the Code of Civil Procedure an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43 Rule 1 887 No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal
It must follow that First Appeal No 72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court
The High Court mixed up two distinct issues  one whether it was competent to defendants 2 and 3 if they were aggrieved by the preliminary decree of file an appeal against that decree and two whether the appeal such as was filed by them was maintainable
If it be correct that defendants 2 and 3 could be said to have been aggrieved by the preliminary decree it was certainly competent for them to challenge that decree in appeal
But they did not file an appeal against the preliminary decree and therefore the question whether they were aggrieved by that decree and could file an appeal therefrom was irrelevant
While deciding whether the appeal filed by defendants 2 and 3 was maintainable   the High Court digressed into the question of the competence of defendants 2 and 3 to file an appeal against the preliminary decree and taking the view that it was open to them to challenge that decree even though the suit was wholly dismissed against them the High Court held that the appeal which in fact Was directed against a find ing given by the trial court was maintainable
It the High Court had appreciated that the two questions were distinct and separate it would not have fallen into the error of deciding the latter question by considering the former
Adverting to the question which the High Court did consider namely whether defendants 2 and 3 could be said to be aggrieved by the preliminary decree there is nothing in the terms of that decree which precluded those defendants from depositing the decretal amount to be able to redeem the mortgage
The trial court had passed the usual preliminary decree for sale in Form No 5A under Order 34 Rule 4 Civil Procedure Code
If the amount found due to the appellant under the decree was paid into the court within the stipulated or extended period the appellant would have been obliged to deliver to the mortgagors all the documents in her possession or power relating to the mortgaged property and to deliver up to the defendants quiet and peaceable possession of the property free from the mortgage
The amount declared to be due to the appellant by the preliminary decree was not paid by the defendants from which it would appear that they were not interested in paying the amount
It is significant that defendants 2 and 3 were served with the notice of final decree proceedings and they appeared therein
The Code is merciful to mortgagors and perhaps rightly because the mortgagee ought to have no grievance if the loan advanced by him is repaid with permissible interest costs and expenses
Under Order 21 Rule 89 it was open to defendants 2 and 3 as late as after the appellant purchased the property in the auction sale to pay the amount due to her
These defendants had interest in the mortgaged property by virtue of a title acquired before the sale that is under the registered partition dated January 11 1956
Under Order 21 Rule 89 where immovable property is sold in execution of a decree any person owing the property or holding an interest there 888 in by virtue of a title acquired before the sale can apply to have the sale set aside on his depositing in Court for payment to the purchaser a sum equal to five per cent of the purchase money and for payment to the decree holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered
Nothing of the kind was done and even the last significant opportunity was not availed of by the defendants
Counsel for the appellant seems right that the defendants were content that only half the mortgaged property was directed to be sold and that it was only because of the later appreciation in prices of real property that defendants 2 and 3 awoke to the exigency of challenging the preliminary decree
That was much too late
So late indeed that not having any plausible reason to assign for the inordinate delay caused in applying for an amendment of the appeal they preferred not to file an application for condonation of delay at all
The appeal was filed on January 4 1959 while the application for amendment was made on August 2 1966
Event though no explanation was offered for the long delay of over 7 12 years the High Court allowed the amendment with a laconic order Application for amendment allowed
Thus the appeal filed by defendants 2 and 3 being directed against a mere finding given by the trial court was not maintainable defendants 2 and 3 were not denied by the preliminary decree the right to pay the decretal amount and the two defendants could even have applied under Order 21 Rule 89 for setting aside the sale in favour of the appellant but they failed to do so as presumably they were not interested in paying the amount
The High Court was therefore wholly in error in allowing the amendment of the Memorandum of Appeal particularly when defendants 2 and 3 had neither explained the long delay nor sought its condonation
The preliminary decree had remained unchallenged since Sep tember 1958 and by lapse of time a valuable right had accrued in favour of the decree holder
The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice the law of limitation notwithstanding
But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion greater ought to be the care and circumspection on the part of the court
The appeal in terms was originally directed against the finding given by the trial court that the partition was sham and colourable Being aggrieved by the finding given in the Judgment and the Decree   it is humbly prayed that findings given by the learned Judge in Para 34 of his Judgment may kindly be set aside and instead the partition deed dated 11 1 56 may kindly be declared as genuine So ran the Memorandum of Appeal
Defendants 2 and 3 reiterated through their counsel by Ming a note to explain the payment of fixed court fees of Rs 20 that they were seeking the relief of declaration only and therefore the court fee paid was proper and sufficient
Long years thereafter the High Court allowed the Memorandum to be amended not a reason was cited to explain the delay and not a reason was given to condone it
And it was not appreciated that in granting time to defendants 2 and 3 to 889 make up the deficit of the court fees 71 years after the appeal was filed an amendment was being allowed which had its impact not only on the preliminary decree but on the final decree which was passed in the meanwhile the auction sale which was held in pursuance of the final decree and the sale certificate which was granted to _the appellant who with the leave of the court and in full satisfaction of her decree had purchased a joint 13 share in the mortgaged property
With the striking down of the preliminary decree these proceedings had to fall but the error really lay in allowing the amendment so as to permit without good cause shown a belated challenge to the preliminary decree
One other aspect of the question relating to the maintainability of the appeal yet remains to be examined
Counsel for the respondents
argues that the finding of the trial court on the issue of partition would have operated as res judicata against them and they were therefore entitled to appeal therefrom
In Harchandra Das vs Bholanath Day on which the learned counsel for the respondents relies in support of this submission a suit for preemption was dismissed by the trial court on the ground of limitation
In an appeal filed by the plaintiff the District Court reversed that finding but confirmed the decree dismissing the suit on the ground that the sale effected by defendants 4 and 5 in favour of defendants 1 2 and 3 was not validly registered and there being no sale there can be no right of preemption
Defendants 1 to 3 preferred an appeal to the High Court against the finding recorded by the District Court that the sale effected in their favour by defendants 4 and 5 was not valid as it was not lawfully registered
On a preliminary objection raised by the plaintiffs to the maintainability of the appeal the High Court of Calcutta held that though under the Code of Civil Procedure there can be no appeal as against a mere finding it may be taken to be the view of courts in India generally that a party to the suit adver sely affected by a finding contained in a judgment on which a decree is based may appeal and the test applied in some of the cases for the purpose of determining whether a party has been aggrieved or not was whether the finding would be res judicata in other proceedings
The High Court however upheld the preliminary objection on the ground that the issue regarding validity of the sale which was decided against defendants 1 to 3 would not operate as res judicata in any subsequent proceeding and therefore the appeal which was solely directed against the finding on that issue was not maintainable
The position here is similar to that in the Calcutta case
The trial court decreed the mortgagees suit only as against defendant 1 the father and directed the sale of his one half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supported by legal necessity the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons defendants 2 and 3
Whether the partition between the father and sons was sham or real had no 1 ILR 890 impact on the judgment of the trial court and made no material difference to the decree passed by it
The finding recorded by the trial court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the court were to find that the partition was genuine the mortgage would only have bound the interest of the father as the debt was not of a character which under the Hindu law would bind the interest of the sons
There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine the property would have been wholly freed from the mortgage encumbrance
The validity or the binding nature of an alienation cannot depend on a partition effected after the alienation or else a sale or a mortgage effected by the Karta of a joint Hindu family can easily be avoided by effecting a partition amongst the members of the joint family
As the matter relating to the partition was not directly and substantially in issue in the suit the finding that the partition was sham cannot operate as res judicata
Therefore the appeal filed by defendants 2 and 3 against that finding was not maintainable even on the assumption that the High Court of Calcutta is right in its vie that though under the Code there could be no appeal against a finding yet On grounds of justice an appeal may lie against a finding provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceeding
It is not necessary here to determine whether the view of the Calcutta High Court is correct
For these reasons we allow the appeal with costs set aside the judgment of the High Court and restore that of the trial court
section C Appeal allowed


Summary:
In 1953 defendant 1 executed on behalf of himself and his minor son defendant 2 a deed of mortgage in favour of the plaintiff
Deft 3 is also a son of deft
I who was born after the mortgage deed
In 1956 a regd
deed of partition was executed amongst the defendants under which the mortgaged property was allotted to the share of defts 2  3
Thereafter the mortgagee filed a civil
suit to enforce the mortgage and the trial court passed a preliminary decree for sale of deft
1 s interest in the mortgaged property
It held that part of the consideration for the mortgage was not supported by legal necessity and the balance of the debt incurred was tainted with immorality
Therefore the debt was held not binding on the one half share of deft
2 in the mortgaged property
As regards the partition the trial court held that it was a colourable transaction effected to delay or defeat the creditors
Being aggrieved pltf
filed an appeal 4059 in the High Court
Deft 1  2 against whom the suit was dismissed also filed an appeal 7259 against the finding of the trial court that the partition was a colourable transaction
During the pendency of these 2 appeals the preliminary decree was made final by the trial court and in 1960 the plaintiff purchased with the permission of the court a joint half share of the mortgaged property in full satisfaction of his decree
Thereafter the auction sale was confirmed and the plaintiff was put in joint possession of the property
Thereafter the appeals filed by the plaintiff and defendants 2 and 3 came up for hearing and while the appeals were part hard defts 2  3 applied on August 2 1966 nearly 7 12 years after filing the appeals applied for amendment of their Memorandum of appeal in first appeal No 7259 and sought permission of the High Court to challenge the preliminary decree passed by the trial Court
The plaintiff opposed that amendment and applied that she did not desire to prosecute first appeal No 4059 filed by her
The High Court did not pass any orders either on the application for amendment or the plaintiff s appeal but adjourned the hearing of the appeals for 3 months to enable defendants to pay the amount due under the preliminary decree
Accordingly the defendants deposited the money towards the satisfaction of the preliminary decree
After about 2 years another division bench of the High Court allowed the amendments of the defendants Memo of Appeal in Appeal No 7259 and allowed time to the defendants to pay the deficit Court fee which they paid
The High Court then took the 2 appeals for hearing and dismissed appeal No 4059 for non prosecution and confirmed the findings of the trial court in favour of the defendants
As regards appeal No 7259 the High Court held that in view of Order 41 Rule 2 CPC it was open to the defendants
with the leave of the court to urge additional grounds without amending the Memo of Appeal and therefore the objection raised
by the plaintiff that amendment should not be allowed cannot be upheld
The High Court further held that the defendants  appeal was competent and they had the right to redeem the mortgage
On the merits the High Court held that the partition was real and genuine
In the result the High Court set aside the preliminary decree as also the final decree and with it the auction 883 sale in favour of the plaintiff
The High Court passed a fresh preliminary decree under order 34 Rule 4 CPC directing that that the plaintiff was to recover Rs 34386 and odd and directed the defendants to pay the entire decretal amount within 6 months of the date of decree
The plaintiff questions the correctness of the decree before this Court
The appeal filed by defendants 2  3 Was against the finding recorded by the trial court that the partition between deft 1 and his sons was a colourable transaction
Therefore it was clear that the appeal filed by defts
2  3 was directed originally not against any part of the preliminary decree but against a mere finding recorded by the trial court that the partition was not genuine
Before this Court the main question was whether that appeal was maintainable and secondly whether it was proper for the High Court to allow the amendment of the Memo of appeal after 7 12 years without good cause shown and Without any application for condonation of delay
Allowing the appeal HELD  i There is a basic distinction between the right of suit and the right of appeal
There is an inherent right in every person to bring a suit of at civil nature but the right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law
The various provisions in the CPC show that under the Code an appeal lies only as against a decree or as against an order passed under rates from which an appeal is expressly allowed by Order 43 Rule 1
No appeal can lie against a mere finding for the simple reason that the Codes does not provide for any such appeal
Therefore the first appeal filed by
defendants 2 and 3 in the High Court was not maintainable as it was directed against a mere finding recorded by the trial court
886 D H ii The High Court should not have allowed the amendment of the Menlo of Appeal particularly when defendants 2  3 had neither explained the long delay nor sought its condonation
Defendants 2  3 were not denied by the preliminary decree the right to pay the decretal amount and the two defendants could even have applied under order 21 Rule 89 for setting aside the sale in favour of the appellant but they failed to do so
The preliminary decree had remained unchallenged since September 1958 and by lapse of time a valuable right had accrued in favour of the decree holder
Therefore to allow the amendment after such a long time without a good cause was not a proper exercise of judicial discretion in the circumstances of the case
888 D E