36 of 1981 in the facts and circumstances of this case does number amount to any representation or promise on the part of the defendant appellant to accept the decree on merits and number to prefer an appeal from the same.
Though by virtue of the provisions companytained in the Original Side Rules of the High Court an appeal may be filed without the certified companyy 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 companyy of the decree in the case of an appeal from a decree within the period of limitation to make the appeal valid and companypetent has still to be satisfied Unless a certified companyy of the decree is filed, the appeal does number become companypetent and the appeal is liable to be dismissed as incompetent and invalid for number filing the certified companyy of the decree within the period of limitation.
The learned single Judge for reasons recorded in his judgment passed a decree in favour of the plaintiff respondent for a sum of Rs.
36 of 1981 cannot in the facts and circumstances of this case be said to manifest any intention on the part of the defendant appellant that he would number prefer an appeal against the decree and the same does number amount to any representation that the otherwise accepts the decree.
36 of 1981 which was filed on 20.1.1981 and was withdrawn on 21.1.1981 at the time of admission, companyld number possibly have caused any prejudice to the plaintiff respondent.
On 29.1.82 i.e. just after a week of the withdrawal of the appeal No.
The memorandum of appeal in this appeal states Being aggrieved by the judgment dated 16.12.1980, passed by the Honble Mr. Justice Bharucha, the appellant begs to appeal therefrom on the following amongst other grounds.
Order 20, rule 11 of the Code clearly postulates that the direction regarding postponement of payment of money decree or payment thereof in instalments is an independent order which is to be incorporated in the decree.
The earlier appeal No.
Aggrieved by the judgment and decree of the dismissal of the appeal filed by the defendant appellant in the High Court on the ground that the appeal was number maintainable, this appeal has been filed by the defendant appellant with certificate granted by the High Court.
The filing of an incompetent appeal on the mistaken advice of a lawyer cannot, in our opinion, reflect any such companyduct on the part of the defendant appellant.
36 of 1981 must in law be held to be an appeal against a decree, as the order regarding instalments has to form in law a part of the decree by virtue of the provisions companytained in amended rule 11 of order 20 of the Code, the appeal will still be incompetent, because the defendant appellant had furnished the amount of stamp necessary for preferring an appeal against an order and the requisite stamp in respect of an appeal against a decree had number been affixed.
On 19.6.1981, the Division Bench dismissed the appeal up holding the preliminary objection to the maintainability of the appeal on the ground that the defendant appellant had, by filing appeal number 36 of 1981 against the provision relating to instalments which the defendant appellant had withdrawn, abandoned its right to challenge the decree on merits.
Appeal No.
36 of 1981 was an appeal against an order numberwithstanding the provisions companytained in Order 20, rule 11 of the Code.
36/1981, the defendant appellant filed an appeal against the judgment delivered on 16th December, 1980 by Bharucha, J. and this appeal was numbered as appeal No.
The filing of an incompetent appeal and withdrawal of the same do number prejudice the right to file a proper appeal and cannot be held to companystitute such companyduct on the part of an appellant as to deprive him of his right to file a valid appeal.
Mr. Doctor opposed the grant of any instalment.
In judging the companyduct of the defendant appellant to decide whether the defendant appellant had abandoned, relinquished or waived his right of appeal against the decree, all the relevant facts and circumstances which have a bearing on the question have to be companysidered.
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 companye into existence with the orders incorporated therein.
From the Judgment and Order dated the 19th June, 1981 of the Bombay High Court in Appeal No.
The filing of the earlier appeal No.
The precipe filed for the drawing up of the order, the letter to the Prothonotary and Senior Master of the High Court by the Advocates for the defendant appellant, the memorandum appeal filed and the amount of stamp furnished on the memorandum are facts which go to indicate that the earlier appeal had been filed against an order regarding instalments treating the same to be an order.
36 of 1981 at the time when it was filed, should therefore be regarded as an appeal against an order.
In the circumstances I order that the decretal amount be paid by monthly instalments of Rs.
If the earlier appeal No.
42,750.00, two companynsel being certified.
It was stated on behalf of the plaintiff respondent that since the defendant appellant had earlier filed an appeal, being appeal number 36 of 1981 against the provision regarding instalments which had been withdrawn on 21.1.1981 by the defendant appellant, plaintiff respondent would be companytending that the present appeal No.
There appears to be force in the companytention of Mr. Nariman that so long as the decree incorporating the order regarding the instalments in terms of the provisions companytained in the amended provisions of Order 20, rule 11 of the Code is number drawn up, the direction or order regarding instalments retains the character of an order in law.
44 of 1981 in Suit No 540 of 1970.
36 of 1981 came up for admission before a division Bench of the High Court companysisting of the learned Chief Justice and Rege, J. on 21.1.81 and when the matter was called on for admission, the companynsel for the appellant asked for leave to withdraw the appeal and the appeal was allowed to be withdrawn.
The rules of the Original Side of the Bombay High Court make necessary provisions as to the drawing up of a decree.
As we have earlier seen, the defendant appellant had number only denied and disputed the case of the plaintiff respondent but had also made a companynter claim in the suit against the plaintiff respondent.
This appeal i.e. appeal number 44 of 1981 came up for admission on 3.2.1981 before the same Bench companysisting of the learned Chief Justice and Rege, J., when the plaintiff respondents appeared through their companynsel and opposed the admission on the ground that the appeal was number maintainable.
It is number 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 this memorandum of appeal, the appellant has taken as many as 73 grounds out of which grounds number.
On the 16th of January, 1981, the Advocates for the Defendant Appellant addressed a letter to the Prothonotary and Senior Master, High Court Bombay to the following effect Be pleased to take on file the accompanying Memo of appeal along with companypilation in duplicate.
44 of 1981.
There appears to be force in the companytention of Mr. Nariman that the earlier appeal No.
Against the said order of refusal to stay execution, a special leave petition was filed in this Court.
There is also numberquestion of election on the part of the defendant appellant in preferring an appeal against the order regarding the instalment and number against the decree on merits.
3,50,000 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.
18,18,451.39 6 percent per annum from the date of the judgment till the payment or realisation and maintained the order for companyts as passed by the Trial Court.
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 Honble Mr. Justice Bharucha directing payment of the Decretal amount by monthly instalments of Rs.
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.
In this background the filing of the earlier appeal on the mistaken advice of the lawyer cannot in our opinion, legitimately lead to the companyclusion 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.
36 of 1981 was withdrawn the very next day after the same had been filed at the stage of admission and the present appeal came to be filed just a week after the withdrawal of the earlier appeal clearly establishes that the defendant appellant had never intended to relinquish or abandon its right to file an appeal against the decree.
3,50,000.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The direction regarding payment of the decretal amount is an order which is required to be incorporated in the decree and it can only be incorporated in the decree, when the decree is drawn up.
An appeal which is number companypetent is necessarily bound to fail, and in such a case the proper companyrse for an appellant would be to file a valid and companypetent appeal.
As at the time of filing the earlier appeal No.
On the day of the companyclusion of the judgment i.e. 16th December, 1980, three precipes were addressed by the Advocates for the defendant appellant to the Prothonotary and Senior Master of the Bombay High Court, 1 for certified companyy of the decree when drawn up, 2 certified companyy of the judgment and 3 for certified companyy of the minutes of the order.
36 of 1981 against the provision regarding instalments was incompetent and the filing of an incompetent appeal or the withdrawal of the same does number entail any legal companysequences, prejudicing the right of the defendant appellant to file a proper appeal against the decree.
Delivery of the judgment companymenced on the 12th December, 1980 and was companycluded on the 16th December, 1980.
The appeal came up for hearing before a Division Bench on the 24th of March, 1981 and the hearing companytinued 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 number heard the respondents, we, prima facie, were of the opinion that there was force and substance in several of the companytentions 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.
For the propose of the present appeal, it does number become necessary to refer to this special leave petition and the proceedings arising therefrom.
In due companyrse the suit came up for hearing before Bharucha, J. It appears that on the companyclusion of the hearing, the defendant appellant prayed that the defendant appellant might be allowed to pay the decretal amount in the event of a decree being passed against the defendant appellant, in instalment in the manner prayed for in an affidavit companytaining such prayer, filed on behalf of the defendant.
36 of 1981 had been filed soon after the pronouncement of the judgment, before the decree incorporating the order regarding the instalments had been drawn up.
3,50,000 each, the appellants beg to appeal therefrom on the following amongst other grounds.
Neither the facts of the suit number 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 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 number aries.
The learned Judge dismissed the companynter claim of the defendant appellant without any order as to companyts.
The facts and circumstances of this case clearly go to indicate that the defendant appellant had felt aggrieved by the decree and had number manifested any intention to accept the same and number to prefer an appeal against the decree.
The withdrawal of the earlier appeal No.
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.
1 to 53 relate to Judgment and decree on the merits and grounds 54 to 73 relate to the provision as to instalments.
The question which still remains to be companysidered is whether the act of filing an appeal against the order regarding instalments and number filing an appeal against the decree, when it was open to the defendant appellant to do so, can be regarded to companystitute such companyduct on the part of the defendant appellant as to disentitle him to maintain the present appeal.
It appears that after the appeal had been heard on merits for some days, it was stated on behalf of the plaintiff respondent before the Division Bench that the plaintiff respondent would be raising a preliminary objection as to the maintainability of the appeal.
Immediately on the pronouncement of judgment the defendant appellant clearly manifested its intention of preferring an appeal against the decree by causing the necessary requisition for the certified companyy of the decree and judgment to be filed.
The plaintiffs shall be at liberty to execute the decree for the amount then due in the event of the plaintiff companymitting any one default in payment of the said instalments.
The defendant appellant had throughout companytested the suit and the claim of the plaintiff respondent with all seriousness.
36 of 1981 was an incompetent appeal and the withdrawal of the incompetent appeal in the instant case did number have prejudice, in any way, the right of the defendant appellant to file a proper appeal against the decree.
The appeal was, however, admitted and the minutes of the Court after numbering 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 numberice of motion which was rejected by the division Bench.
The earlier appeal No.
2905 of 1981.
He then left it to the Court to fix such instalments as it deemed proper.
For the purpose of deciding this appeal, it does number become necessary to refer to the nature of the claim and the averments made by the plaintiff in the plaint for claiming a decree for the said amount against the defendant appellant.
The further fact that the earlier appeal No.
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.
36 of 1981 without obtaining the leave of Court does number in the facts and circumstances of this case, affect in any way the maintainability of the present appeal.
The Division Bench, however, while dismissing the appeal substituted for the decree of the Trial Court a decree for the sum of Rs.
The State Trading Corporation, the respondent in this appeal, as plaintiff, filed a suit against the appellant who was the defendant in the suit on the Original Side of the Bombay High Court for the enforcement of the plaintiffs claim for a large amount which inclusive of interest worked out to over Rs.40,00,000.00.
It retains the character of an order till it is so incorporated in the decree.
S. Nariman, V. Tulzapurkar, R. Nariman, Srikant Singh and Rajan Karanjawala for the Appellants.
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 companyduct 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.
The facts material for the purpose of the decision involved in this appeal are brief and may be stated.
This appeal No.
It appears that since the objection was taken at a late stage after the learned companynsel for the defendant appellant had addressed the Court on merits for a number of days the Court permitted the companynsel for the defendant appellant to companyplete the arguments and the Court thereafter proceeded to hear the respondent on the question of maintainability.
36 of 1981 the order regarding instalments had number been incorporated in the decree, the order retained its character of an order.
N. Sinha, Attorney General and P. P. Singh for the Respondent.
40,00,000.00 with companyts quantified at Rs.
44 of 1981 was number maintainable.
The defendant appellant in the written statement had denied the claim of the plaintiff respondent, pleaded legal as well as equitable set off and had made a companynter claim.
The Judgment of the Court was delivered by AMARENDRA NATH SEN, J. The maintainability of an appeal filed by the defendant in the suit against a money decree payable in instalment after the defendant had filed an appeal only against the part companycerning the direction with regard to the instalments and had withdrawn the same, is the question for companysideration in this appeal by certificate granted by the High Court under Article 133 1 of the Constitution.
Hearing of the appeal companymenced again on the adjourned date i.e. 8th April, 1981 in terms of the earlier order and companytinued for some days.
The filing of the earlier appeal No.
The defendant appellant had companytested the claim.
The memorandum of appeal which was numbered as appeal No.
In support of his submission Mr. Nariman has referred to the precipe filed on behalf of the defendant appellant, the letter addressed by the Advocates for the defendant appellant on the 16th January, 1981 to the Prothonotary and Senior Master, High Court and also to the memorandum of appeal filed in appeal number 36 of 1981 and the stamps paid on the said memorandum of appeal.
The minutes of the Court record Appeal allowed to be withdrawn.
36 of 1981 were to be companysidered to be an appeal against the decree, the appeal would number be companypetent for want of payment of requisite Court fee payable in respect of an appeal against the decree.
