Case: M. Ramnarain Private Ltd. And Anr Vs. State Trading Corporation Of India Ltd

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 t hat 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 The further fact that the earlier appeal No. 36 of 1981 was withdrawn the very next day after the same had been filed at the stage of admission and the present appeal ca me to be filed just a week after the withdrawal of the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 The earlier appeal No. 36 of 1981 which was filed on 20.1.1981 and was withdrawn on 21.1.1981 at the time of admission, could not possibly have caused any prejudice to the plaintiff-respondent.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 29.1.1981 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 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. T here is also no question of election on the part of the defendant-appellant in preferring an appeal against the order regarding the installment 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.16. 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 installment had fallen due under the decree, the defendant appellant had filed the earlier appeal No. 36 of 1981 against the provisions regarding installments. It is to be noted that instead of taking or getting any advantage under the decree in the matter of granting installments, the defendant-appellant had cha llenged 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,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 pre sent 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 v. Baijnath, (1) this Court observed at p. 362:"It seems to us, how ever, 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."17. 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 t o 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.18.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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, 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 theCode of Civil Proceduredo 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 2(2) 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 2(3) 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 t o 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 theCode of Civil Proceduredoe s not also stand in the way of the maintainability of the instant appeal. The 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 installment 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 presentmay further be noted that the provisions of theCode of Civil Procedurecontained 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 presentthis 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 t hat 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 ca me 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 20.1.1981 and was withdrawn on 21.1.1981 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 29.1.1981 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 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. T here is also no question of election on the part of the defendant-appellant in preferring an appeal against the order regarding the installment 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 thethe 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 installment had fallen due under the decree, the defendant appellant had filed the earlier appeal No. 36 of 1981 against the provisions regarding installments. It is to be noted that instead of taking or getting any advantage under the decree in the matter of granting installments, the defendant-appellant had cha llenged 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,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 pre sent appeal was filed. The question of the defendant appellant having obtained an advantage under the decree does not therefore, reallyhave 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 t o 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.