M. RAMNARAIN PRIVATE .LTD.

AND ANR.

STATE TRADING CORPORATION

OF INDIA. LTD.

May 5, 1983

(P. N. BHAGWATI, R. S, PATHAK AND

AMARENDRA NATH SEN, JJ.]

Cudeo/Civi/Procedure,-J908-0rder 20 r. JI-As amended in 1916- Interpretation of-Direction regarding p'ayn-1ent of decretal amount-An order- Til/ incorporatr!d in Decree-No appea/'l{es against that order-Appeal lies against deCree containing such direction-Order not •judg111ent' within clause 15 of Letters Patent. ·

Code o/Ci)!i/ Procedure, Order 41, r. I-Interpretation of-Filing copy of decree with nienzorandumof appeal 1nandatory-Appea/ filed wut decree invalid-Filing or wifh, frawal of inco1npetent appeal:-No bar to file p1oper appeal against decree.

Code of Civil p,.ocedure, Order 2, t:. 2-Jntirpretation of-Not applicable to appeals.

Code of Civil frocedure, Order 20, r. 11, Order 2, r. 2 and Order 23, r.1lnterpretation of-Do not deal with right of-appeal or extinguishn1ent thereof-Do not confer or ljeprive right of appeal. Right to appeal-Creation of statute-May be lost by law or conduct of appellant or appellant may disentil/e himself tO enforce right of appeal-Prayer regarding pay1fient of decretal amount does not deprive a party of his right to file an appeal against the decree-Mistaken advice of lawyer does not deprive appellant of his right of appeal.

The respondent, as plainti[, filed a suit against the appellant, as deFen dant, in the Original side of the Bombay High Court for the enforcemellt of its claim for a large amount_ <1f 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 decfetal 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 SeOior Master, High Court, requesting that the accompanying memotan- Qum.Of appeal be taken on file. Th.is appeal whi"11 wa.s numb_ered 36_ of 1981

was filed on 20th January, 1981. The appeal was directed against the order in respect of instalmnts. 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 withdraw'al of appeal No. 36 the appellant filed an appeal against the judgment taking grounds relatin~'to the merits of the case and also the direction as to instalments.

Thi~ appeal was numbered 44 of 1981. .After this appeal was heard on inerits for a few days, the repondent raised a preliminary objection that because the appellant had earlier filed appeal No. 36 against the provision regarding insta Jments 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 pi:ellant contended in this Court that the filing of earlier ; ppeal No. 36 or the withdrawal thereof does not affect the right of app_ellant to prefer appeal no. 44 against the de.cree on merits. Appeal No. 3G was filed against the order'of the Hi"gh 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. tt'A_ppeal 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 appea13.bte under C.P.C. and such an order cannot also be considered to be a 'Judgn1ent' within the meaning of clause 15 of the Letters.Patent. Appeal No. 36 which was against the order fegarding instalments was incon1petent and was therefore no appeal in the e'ye 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 qf C.P.C., 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 wa< even withdrawn before a certied copy of the decree cOuld be filed.

Appea~ 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 conlpetent 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 C.P.C. do not in any way affect the maintainability and the merits of

11ppeal 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 prejudici.: has been caused to the respondent by filing and withdrawal of appeal No. 36 by the appeUant.

The respOndent contendd 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 fornis a -part of the decree. In view of the

RAMNAAAIN (Pl LTJ?. v. s:r. CORPN.

provisions contained in Order 2, r. 2 and Order 23, r. 1 of C.P.C. it-was open to the appellant to prefer an appeal against the decree or to appeal against any part thereof. The appel\ant preferred to file appeal No. 36 only against the part of the decre 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 prej,.udice of respondent cannot now question the correctness o( the decree passed.

Allowing the appal,

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 appella"nt of his right to file appeal No. 44.. [54 DJ

. 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 l;>y the conduct of the party. The la.w 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 disentitlcd from enforcing the right to appeal which he may otherwise have. [46 A-C]

ln the instant case the defendant-appellant did have a right of appeal against the decree by virtue of the provisions of s. 9_§ 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 postponment of payi:nent of money decree and of its payment in instalments and lays down the procedure for dirt"cting payment of a money decree in instalments. The amendment .introduced in 1976 to Order 20, r. 11 requires that any provision directing the paymnt of the amount decree.d shall be postponed or shall be made by instal-. ments may be incorporated in the decree. The direction regarding payment of the decretal arilount is an indepehdent order which is reqliired to b_, 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 Origin"al Side of the Bombay High Court make necessary provisions as to the_ drawing up of a decree. lo view of procedure laid down in the rules for the drawing up of a deeree, there is bound to be a time lag petween the judgment and the dr_awing up of a decree, in which the order regaring 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 ordr. Such an order is not appealable under the Code.

Such an order will also not be a 'judgn1enf 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 undoubted!~ lie as an appeal from a decree. [47 DE, 4fGH, 41C-D,47 FH]

The provisions of Order 20, r. 1 I do not deprive the appellant in the insta1:J.t. case of his right to prefer an appeal against th~ decree. The earlier appeal No. 36 of 1981 had been filed long before the decree in which the order regarding instalments under Order 20, r.il 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 instaln1ents 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 rega.rded as an appeal against an order. The precipe filed for the drawing up of th~ 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 ainount 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 o.-36 were to be considered to be an appe:i.1 against the decree, the appeal would still be incompetent, because the appellant had furnished .the amount of stan1p necess?-rY 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-Cj

Lader Order. 41, r.J, every appeal has to be prefe.rred 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 thD"appelJate court to dispense with the .filing of the judgment but there is no jurisdiction in the appe-.Uate court to dispense wHh the filing of the decree. The require1ncnt that the decree should be filed alongwith the memorndum of appeal is 1nandatory 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 eyC? of law. Though by virtue of the provisions of the Original Side Rules of the Bombay High Court the t:arlier apreal could be permitted to be filed.without a certified copy of the decree or order, the appeal would not be valid and con1petent unless thf: further requirement of filing the certified copy had been complied with. [49 G-H, 50 A, 53. C,49 F. 52 F] '.

Jn 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 ren1ained an incompetent appeal. The wHhdrawal of an h1compentent appeal which would indeed be no apreal in the eye of Jaw cannot in any way prejudice the right of any appellant t_o 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, r.2, contemplates that at the time of .the iiistitution 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 nou'- compliance with the requiren1ents of the said rule. It is doubtful. whether the principles underlying this rule can be said to be applicable to an appeal. This ruie is applicable only to suits_ and cannot in terms apply to appcit.Is.

Evn if

RAMNARAlN (p) LTD. v. S.T. CORPN. 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 schene of the said rule and the lnguage used therein. ' ·

[53 F-G, 53 E-F]

In the instant c_ase the provisions Of Order 2, r.2 of the Code do not stand in the way of the appellant in the matte'=' of filing the subsequent appeal No. 44. Even if the principles uiiderlying Order 2, r.2 are considered as applicable to an appeal the maintainability of tlie 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 a:ppeal was filed.

[23 A-B, G]

Order 23, r.1 of the Code does not also stand in the way of the main•

tainability of the instant appeal No. 44. Apart from the incompetency of C the ea"rlier appeal No. 36, the subject matter of. the said appeal Y.as entirely different from the subject matter of the present appeal. [53 H, A-BJ

The prOviSions of the Code of Civil. Procedure contained in Order 20, r. 11, Order 2. r. 2 an~ Order 23, r. 1 do not 'in terms deal with any questiOn in relation jo the right of appeal or the extiJ; lguishment thereof. These provisions do not by thrmselves 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 c_onfer a right of appeal on a party or deprhe a party of any such right. [54 B-C]

A mere prayer for postponment of payinent of decretal amount or for payment thereof in instalments on the basis of the provisions contained in Order 20, r.1 J (1) of the Code at a time when the decision in the suit is yet to be announced can never be c6nsidered to amount to such conduct of the p:i.rty as to deprive him his right to Prefer an appeal against any decree, if ultimately passed, and to disentit1e him from filing an appeal gainst the decree. [55 G-H]

Jn 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 Iawye.rs. The statement of the Jawyers recorded by the Divisiori 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 fu.rnish a proper ground for depriving the defendant-appeliant of his valuable statutory right of preferring an appeal against the decree. The filing of an incompetent appeal on the mistaken advice of a Jawyer cannot, in our opinion, reflect any such conduct on the part of the defendant-appellant as to disentitle him to maintain the peresent appeal. [56 C, D; F, GJ

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 ef the1 defendant-appellant having obtained an advantage un(le:r the decree does Qot 'therefore'. really arise. [59 A-Bj

CIVIL APPELLATE JURISDICTION : 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.

F. S. Nariman, V. Tu/zapurkar, R. Nariman, Srikant Singh and .Rajan Ktiranjawa/a for the Appellants.

L. N. Sinha, Attorney General and P . . P . . Singh. for the Respondent.

The Judgment of the Court was delivered by .

AM:ARENDM NATH .SEN, J. .The maintainability of an appeal filed by the defendant in the suit against a money-decree payable D in instalment after the. defendant had filed an appeal only aganist the part concerning the direction with regard to the instalments and bad withdrawn the same, is the question for consideration in this appeal by eertificate granted by the High Court under Article 133 (I) of .the

- Constitution.

The facts material for the purp0se of the decision favolved in this appeal are brief and may be stated. ·

The State Tradingcorporation, the respondent in this appeal, as plaintiff, filed a s.uit against the appellant who was the defendant in the suit on the Original Side ofthe Bombay High Court foi the enforcement of the plaintiff's claim for a large amount which inclusive of interest .worked. out to over Rs. 40,00,000.00. 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 ihe defendant-appellant. The defendant appellan( had contested the claim. The defendant-appellant in the written stateent 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 Bharncha, J. It appears that on the conclusion of the hearing, the defendant-appellant prayed tliat the defendant-appellant might be allowed to pay the decretal amount in the event of a decree being passed against the defendant-ajljlellant, in jnstah; nent in th~

. . . RAMNARAIN (P) LTD. v. S.T. CORPN. (A.N. Sen, J.) 31 , manner prayed for in an affidavit containing such prayer, filea on behalf of the defendant. The learned single Judge for reasons recorded in his judgment passed a decree in favour of the plaintiffrespondent for a sum of Rs. 40,00,000.00 with costs quantified at Rs. 42,750.00, twb 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 \st 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, insta.lments.of Rs. 4,00,000 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 mothly instalments of Rs. 3,50, COO 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 conC!usion of1 the judgnien( i.e. 16th December, 1980, three precipes were addressed bi the Advocates for the defendant-appellant to the Prothoncitary and Senior Master of the Bombay High Court, (I) for certified copy of the d.ecree 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 \)f appeal l1lon1,1 with compilation h1 duplicate. We als'o

3.2

SUPREME COURT REPOR1S

(1983) 3 S.C.R.

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 un"der Order 20, rule 11 of the Civil Procedure Cod~ 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 judg

ment 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 jg circulated before the Chief Justice and Hon'ble Mr. Justice Rege and that. the same appeal is called on Wednesday the 21st day of Junuary, 1981".

The memorandum of appeal which was numbered as appeal No . .36 of 1981 and was filed on 20.1.81 by the defendant-appellant states:-

"Being aggrieved by the judgment and order dated 16th December by the Hon'ble Mr. Justice Bharucha diiecting paymenfof the Decretal amount by monthly instalments of Rs. 3,50,000 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. 3,50,000. 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 21.1.81 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 29.1.82 i.e. just after a week of the withdrawal of the appeal No. 36/1981, the defendantappellani 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

RAMNARAIN (P) LTD. v. S.T. CORPN. (A.N. Sen, J.). . 33

16.12.1980, passed by the Hon' hie 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 groul)dS out of which grounds nos. I to 53 relate to Judgment and .decree on the merits and grounds 54 to 73 relate to the provision as io instalments. This appeal i.e. appeal n<'. 44 of 1981 came up for admission on 3.2.1981 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 \\as .rejected by the diviS<on Bench. Against the said order of refusal t.o 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 su?stance 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 commen_ced again on the adjourcd date i.e. 8th April, 1981 in terms of the ea<lier 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 plaintiffrespondent before the Division Bench that the plaintiff-respondent would b.e 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 tied an aopeal, • being

appeal no. 36 of 1981 against the provision regarding instalments which h&d been withdrawn on 21.1.1981 by the defendant-appellant, plaintiff respondenf 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 tlie defendant 'appellant ,.,,._ to complete the arguments and the Court thereafter proceeded to )-· - bear the respondent on the question of maintainability. On 19.6.1981, the Division Bench dismissed the appeal up holding the preliminary objection to the maintainbllity _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. 40,18,737.38 with interest on the principal amount of Rs. 18,18,451.39@ 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 01 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 nci. 44 of .1981 is not maintainable, as the defendant-appellant by filing the earlier appeal no. 36 of 1981 againstthe 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 withregard to t)linstahnepts only and the said appeal was not an appeal against

...

RAMNARAJN (P) LTD. v_ S.T. CORPN. (A.N. Sen, J.) 3$

the decree. In support of Ws 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 C'ourt and also to the memorandum of appeal filed in appeal no. 36 of 19.81 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 cre.ature of Statute and unless the right to prefer an appeal is conferred by law a litigant cannot prefer any ppeaL 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. Nari man, 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 conse, quence and cannot, in any \\lay, 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

Rles 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 Hte 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 iri terms of the provisions of rules of the Original Side of the High Court .. It is the argument of Mr. l\'ariman that as the appeal no. 36 of !981 hadbeen filed long before the decree incorporating the order had been drawn up, appeal l\'o. 36 of 1981 which had been filed only aainst the order rearding instalments !llUS! b~

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 C"de, it cannot be disputed that the said appeal had been filed without a certified copy of the deree 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 beno 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 Higli 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 t.o 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 Origmal Side Rules an appeal can initially be filed without the certified copy, the certified copy the fi'ing 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 v. Jawah.arlai Bhargava & Ors.(1) and Shakuntla Devi Jain

v. Kuntal Kumari & Ors.(') Mr. Neriman 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 I!"rts enforceable against the Same or SCVeral defendants, separate appeals against such distinct and severable directio.ns or orders or provisions in a decree may be filed. It is Mr. Nariman's argument that in the instant case, even if the ordef for instalment be considered to be a part of the decree, the decree shall consist cif two distinct and severable parts, (I) 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 CivilJProcedure Code do not in any way affect the maintainability and the merits of the

(r) [19611 2 S.C.R. 918.

(2) (1969J l S.C.R. lti06.

RAMNAlwN (Pl LTD. v. s.T. coRPN. {A.N. Sen, J.) 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 tbougb this Court in the case of Bijoyananda Pat11aik v. S. Sahu(1) has held. that the provisions of Order 23, rule -I 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 198!. 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 decre on the m"rits 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 ih Vallabhdas v. Dr. Madan Lal & Ors.(') 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 2 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 eutirely different from the "cause of action" in respect of decree which embraces withiu its fold the 'subject matter" of the respective claims of the parties iu 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 eujoyed by a party, the party in an appropriate case may lose his right of appeal. But he submits that a vety strong case must be made out to establish that a party has. forfieted his right to prefer an appeal. Accordiug to Mr. Nariman, the right

(1) (1964! 2 SC.R. 539.

Fl [1971] 1 S.C.R. 21 L

stiPRJiME couRt REPORts t19S3) J S.C.R.

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 i05talments 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 (he 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 virue 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 bis right. _In this connection Mr. Nariman has referred to Halsbury's Laws of England, 4th Edn., vol 16, paras 1471, 1472, 1473 and I474

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 avoid- .. ance 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,

iwtNARAIN (P) LTD. v. S.T. CORPN. (A.N.Sen, J.) 3~

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 trans• action to proceed as though the stipulation or provisiorf 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, ithout need for writing or 'ror consideration moving from, or detriment to, the party, who benefits by the waiver; bnt mere acts of indulgence will not amount to waiver; nor can a party benefit frqm 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 statementamounts 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 snch cases the right is lost on the ground either of estoppel or of

SiJl'llEME COURT REPORTS (19SJj 3 S.C.R.

acquisence, 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 w_aived by appeal to a higher tribunal whose decision is expressed by Parliament to' be final.

1472. Knowledge of rights essential. For a rel.ease 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. ·

1473. Estoppel and acquiescene .. The term ; acquies cence' is used where a person refrains from seeking redress when there is brought to his notice a violation of his rights of \\hich he did not know at the time, and in that sense acquiescence is an element in !aches. 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 reSonably 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 lllere statement that he intends to do something, for

- }

)' '

...

RAMNA!\AIN (P) LTD. v. s.T. CORPN. (A.N. Sen, J.) 41

example, to abandon his right, is not enough. Furthermore, equitable estoppel is not applied in favour of a A voluntea:r

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 tbe cstoppel is raised immediately by the conduct giving raise to it k1pse of time is of no importance, and for the reason the. effect of acquiscence is expressly preserved by statute.

1474. 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 knowlcge .of one's legal rights, and hence A must know . or his own rights; (4) A must know of B's mistaken belief; with that knowledge it is inequitable for him to keep ailence and ailow 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, bt 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 ihstant 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 immediatley 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 SUPllEME coVRi REJIORTS (l9S~.J S.C.R.

been filed against tha order of instalment for immediate relief and thereafter an appear 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 p1-., fer an appeal against the sam~. Mr. Nariman further submits that a litigant usually proceeds on! the advice of h:is 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 cif -the Judicial Committee in the case of John Agobog Vertannes & Ors. v. James Golder Robinson & Another.(') He ha. 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 d"cree on merits. Mr. Nariman has commented that the Division Bench had admitted this appeal despite the objection of the plaintiff-re:lpondent 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 maintaintable and it is his submission that the said view of the Division Bench is any event eroneous and unsustainable in Jaw.

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 m_aintainable in view of the filing of the earlier appeal by the defendantappellant against the provision regarding instalments and th.e 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 fonns 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

(1) A.I.R. 1927 P.C. 151.

RAl'iNARAIN (P) LTD. v. s.T. CORPN. (A.JV. Sen, J.) 43

be incorporated in the decree, necessarily forms a part of the decree . itself. It is his cntention that the mere fact that it may take a little .

time to draw up the decree, iucorporating the privisions 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 I of the Code of Civil Procedure. Order 2, rule 2 of the Code of Civil Procedure provides :-

" (I) 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 respetively to constitute but one cause of action."

Order 23, rule I of the Code of Civil Procedure reads :-

(1) At any time after the intsitution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim ;

SUPREME COURT REPORTS tfi1idj 3 s.c.il.

Provided that where the plaintiff is a .minor or other person to whom the provisions contained in Rules I to 14 of Order XXX!Iextend, neither the suit nor any part of the claim shall be abandoned without the ]_eave 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 defendantappellant having chosen to file an appeal only against a part of the decree confined to the payment of the decretal amount in i:nstalme;1ts aud not against the decree on its merit; and havin'g withdrawan the said appeal unconditionally has clearly forfeited his right to prefer the instani 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 die statutory provisions earlier referred to, the defendant appellant must be held to have clearly abandoned or waived his right of preferring an appenl 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 thnt defendcnt-appellant had the right tc, prefer an appeal against the whole of the decree, if he had. felt aggrieved by the same.

He submits that if the defendant-appeJJant does riot have any grievance against the decree on merits but is cnly 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 be 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 defendantappellant having done so, must b~ held to have waived tds 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

RAMNARAIN (P) LTD. v. S.T. CORPN. (A.N Sen, J.) 45

and obtained a decree payable in instalments and the dfendant 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'ltppeal is a right conferred by the Statute on a party aggrieved, the agrieved party may be estopped and or precluded from asserting or exercising the righ( 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 mm~, be disentitles himself ty '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 defendantappellant ; is clearly estopped fro01 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;

The defendant-appellant had filed appeal No. 36 / 1981 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. 36/1981 filed against the decree without obtaining any leave of the court to file any fresh or subsequent appeal; an~

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 Io the prejudice of the

plaintiff-respondent cannot now turn roun.d 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 cdbrse in the absence of a suitable provisions of some law conferring on the party concerned the right to file an appeal against afl.y 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 Jaw and also by the conduct of the party The Jaw 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. S. 96 of the Code, read with 0. 41 of the Code makes it abundentJy clear that an appeal will lie from .an original decree. It js also not in dispute that the appeal has been filed within the period of limitation.

The Jaw of limitation, therefore, does not defeat the right of the appellant to file appeal.

The provisions of Order 20, rule 11, in our opm1011, 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:-

"(!) Where and in so far as a deceee is for the payment of money, the Court may for any sufficient reason al. 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 sI-all be postponed or shall be made by .. iqs(alments on Slich terms as to the payment of inte-

RAMNARAJN (P) LTD. v. S.T, CORPN. (A.N. Sen. J.) 47

rest, the attachment of the property of the judgment debtor, or the taking of the security from him, or A otherwise as it thinks fit."

By the C.P.C. Amendment Act, 1976, 0. 20, R. 11 (1) was amended and the amended ruly reads :- B

. ·.( "(!) Where and in so far as a decree is for the payment of money, the Courr 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 0. 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 questiop 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 con'. sidered 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 I.etters Patent and will not be appealahle as such. There is, indeed, no provision in any law to make such an order appealable. If, however, the direction with regard to instal ments is considered to be a part of the. decree, an appeal will undoubtedly lie as an appeal f'rom a decree. In the instant case, the facts and ircum stances go to indicate that the defendant-appellant

had, in fact, filed an appeal against the direction regarding instalment treating the same to be an order. The precipe filed, the lett1r addressed by th.e 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 th€ memorandum, all go to indicate that the appeal filed was an appeal against an order. If Mr. Narimans contention thafthe earlier appeal No. 36of1981 was an appeal against an order is accepted, the said appeal must he held to be incompetent.. There appears to be force in the contention of Mr. Narimatl that the earlier appeal No. 36 of 1981 was an appeal against an ordernotwithstanding the provisions contained in Order 20, rule 11 of the Code. The rules of the Original

Side of the Bombay High Court make necesrnry 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 Hirjl 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

withthe orders incorporated therein. There appears to be force in the contention of Mr. Nariman that so long as the decree incorporaiing the order regarding the instalments in terms of the provisions contained in the amended providons 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 Cod( clearly postulates that the direc- ·. don 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 hadb een 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 a'n 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 198 i the order regarding instali; nents had not been incornorated in the decree, the ord1!r retained

RAMNARAIN (P) LTD. v. S.T. CORPN.{A.N. Sen. J.) - A9

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 fild against an order regarding instalments treating the rnme 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 bas to form in law a part of the decree by virtue of the ptovisions contained in amended rule 11 of order 20 of the Code, the appeal will still be incompetent, because the defendknt-appellant bad furnished the amount of stan1p necessary for preferring an appeal .against an order and the requisite stamp in respect of an appeal a)lainst a decree had not been affixed. If the earlier appeal No. ?6 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 ree 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 bas 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

ertified copy of the decree within the period of limitaiiot\. o 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 v. Jawaharla/ Bhargava (supra) this Court held at page 922 :~

"The position of law under 0. 41, r. I is absolutey clear. Under the said rule every appeal has to be perferred 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 hasto be accom- .. panied by a copy. of the decree appealed from, artd Of the , j_m; lgi)le!lt Qn which.it is founde\I.

Rule. I empowers the

.. G

50 SU, PRl!ME COURT REPORTS [1983] 3 s.c.R.

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 enfor ceable 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 th1~ date of the decree under appeal. Therefore there is no doubt that the requirements that the decree diould be filed along with the memorandum ofappeal 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 Shankunta/a Devi v. Kunta/ Kumari (supra), thi' 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 memoraudum 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 0.41, r. I the appellate Court can dispensee 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 S. 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 ae<; ompanied by certified copies of the decree and the judgment.

The content.fan of Mr:Misra is that a decme is the formal expression of the adjudication. and that where as in this case, no formal decree is drawn up, the deter'. mination under sec. 47 is a judgment and the Court

l\avin~ admitted the appeal must be presumed to. have .

RAMNARAIN (P) LTD. v. S.T. CORPN. (A.N. Sen, J.) 5:1

dispensed with the filing of the copy. of the judgment.

In this connection he drew our attention to sec: 2(2), 33 and 0.20 rules I, 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. 47 .. 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 G.I.P. Railway Co. v . . Radhakissan(1)]. 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. 2(2), the term 'decree' .is deemed to include the determination of any question within sec. 47.

This inclusive definition of decree applies. to 0.41, r. !. In some courts, the decision under sec. 47 is re quired to be formally drawn up as a decree in that case the memorandum of appeal must be accompanied by a copy of the !fecree as well as the judgment. But in some other Courts no separate decree is drawn up embodying the adjudication unde_r sec. 47. 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 0.41, r. I. 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 v. Mah.abir Prasad &. Ors.(') where Agarwala, J. seems to have held that where no formal decree was prepared in the case of a decision under sec. 47 the appel.larit was not required to file a copy of the order with the memorandum of appeal. We are unable

(1) A.LR. 1926 Nag. 57.

(2) A.l.R. 1940 Pat. 176.

to agree with this ruling. The correct practice was laid down in Kam/a Devi v. Tarapada Mukherjee(') where Mookerjee, J. observed :

'Now it frequently' happens that in cases or execution proceedings, though there is a judgment, an order, that is, the formal expression of the deeision is not drawn up. In such cases the con eluding portion of the judgmet 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 memo randum 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, thoire is. a judgment stating the grounds of the decision. and a

separate order is also drawn up embodying the the formal expression or the decision, copies of both the documents musi be attached to the memornnduni, 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 a.ccoin

panied 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 th• certified copy of the decree remained an incompetent appeal. The withdrawal of an incompetent appeal which will indeed l:e 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 other. wise lost by lapse of time or for any other valid reason. We are, therefore, of the opinion that the provisions contained in order 20,

~I) IS c.i.J. 49~.

iuiliNARAIN (P) LTD. v. S.T. CORPN. (A.N. Sen, h 53

rule 11 of the Code do not in the facts and circurilstances of the present case deprive the appellant of his right to file an appeal A against the decree.

The provisions of 0. 2, rule 2 of the Code of Civil Procedure do not stand i11 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, ru)e 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 consid¥red 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 he 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 nndedying this rule can be said to be applicable to an appeaf. 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 actiqn on the basis of which the earlier appeal had been filed.

Order 23, rule I of the Code of Civil Procedure does 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 instalment cannot in any way effect the validity oft.he present appeal. i\ part from the incomp(:tency 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 I 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 defendantappellant 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 4lf 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 ths appeal Whether any party has lost his valuable right of preferring an appeal conferred on him by law mustnecessarily 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 bas become disentitled to file the present appeal No. 44 of 1981 are : (I) the defendant-appellant filed an affidavit asking for postponment 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 t)le 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

R.AMNARAIN' (Pl LTD. v. s •. T. coRPN. (A.N. Sen, i.) SS

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 factsand 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-appeliant 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 o( hearing anti 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 defendnt-appdlant 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 II (1) of the Code, the prayer for instalment jlas 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 (4) of the Co.de. 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 certainti whether an decree against the defendant appellant wool!! 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 (I) 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 (I) 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 part) as to deprive him of his right to prefer an appeal against any decree, if ultimately passed, and to .disentit!e "him from filing an appeal against the decree. It is no doubt true that

'"' StiPR.EME COURT REPORTS (19~:313 s.c.R.

after ihe 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 <l, efendant-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 •m appeal against the decree.

It is common knoledge that in matters of litigation the litigant who is not expected to . be familiar with the for• malities of law and rules of procedure is generally guldM 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 depdving 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

i'nstalments and not filing an appeal against the decree, when it was open to the defendant-appellant to do _so, can be regarded to consti• tnte 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 a.nY such conduct on the part of the defendantappcllant. 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 appella!_lt as to deprive him of his right to file a valid

appal. T).le filing of the earlier appeal No. 36 of 1981 cannot in

}-··

' ..

RAMNARAIN M LTD. v. s.T. coRPN. (A.N. Sen, J.) s;

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 do.es not amount to any representation that the otherwise accepts the decree. In judging the conduct of the defendant-appellant to decide whether the defendantappellant had abandoned, relinquished or waived his right of appeal against the decree; all the releve.nt 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 bad felt aggrieved by the decree and had not mainfested 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 plaintiffrespondent. 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 defendantappellant clearly manifested its intention of preferring an appeal against the decree by caus.ing. 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 bad 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, thedefendant 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 nling of the earlier appeal No. 36 of 1981 in the facts and circumstances of this case

does no( 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 fr!lm the same .. There is also no question of election on the part of the defendant-appellant in preforring an apped 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. Jn 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 maintainbility 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 flied 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 defertdant-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 defendantappellant 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 rgard ing 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.. A:; 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,

!lAM'NARAIN (P) LTD. v. s.T. coRPN. (A.JV. Sen, J.) 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 pro ceedii:ig. A certified copy of the decree is not available so Jong 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 appeliant 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, however, that in the absence of some statutory provision or of a well-recongnised 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 provmon 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 tJie 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.

H.S.K.

Appeal allowed.

(I) p962J 1 s.c.R. 358,