1. This is an application for a- declaration that the case decided by our brother Dhavan hi second appeal No. 162 of 1957 is a fit one for appeal under Chapter VIII, Rule 5, of Rules of-Court. Our learned brother heard this second appeal here at Lucknow on 8-2-1962; he had come to Lucknow temporarily and was not a permanent member of Lucknow Bench. He reserved Judgment and then returned to Allahabad. On 26-3-1962 he prepared the judgment and sent it to Lucknow to our brother Beg for being pronounced by him as permitted by Chapter VII Rule 1 (3). Beg J. ordered on 27-3-1962 that a notice be given to the parties that the judgment would be pronounced on 29-3-1962. On 29-3-1962 Beg, J. pronounced the judgment.
Nobody was present in the court on behalf of the applicant when it was pronounced and no application, whether oral or written, whether addressed to Dhavan, J. or to Beg, J., was made at the time when the judgment was pronounced or just before it was pronounced. An appeal from the judgment of Dhavan, J. did not lie except on a declaration by him that the case is a fit one for appeal, vide Chapter VIII Rule 5. The procedure for obtaining such declaration from the Judge is contained in Rule 6 which provides that 'an application for such declaration shall be made, either orally or in writing, before or at the time when the judgment is delivered' and that the Court 'shall thereupon record an order granting or refusing to grant such declaration.'
There is no doubt that no appeal lay from the judgment of Dhavan, J., except on a declaration byhimself that the case is a fit one for appeal; sucb a declaration could not be granted by Beg, J. who had not passed the judgment and had only pronounced it on behalf of Dhavan, J. who had passed it. No declaration can be made by a judge who pronounces judgment under Rule 1(3) of Chapter VII-The Judge who passed the Judgment has to grant a Declaration on an application made orally or in writing before or at the time when the judgment is delivered. This means that an appeal would lie from the judgment of Dhavan, J., only if he had declared that the case was a fit one for appeal on an application made either orally or in writing before, or at the time when the judgment was pronounced by Beg, J.
It was contended that there is a lacuna in the rule inasmuch as it does not provide for an application being made when a judgment passed by one Judge is pronounced by another under Rule 1(3) of Chapter VII. It was contended that no application-can be made to the Judge pronouncing the judgment because he cannot grant it and it cannot be made to the judge who passed the judgment because heis not present when the judgment is pronounced. It was contended that in such a case an application for a declaration can be made even after the 'judgment is pronounced. It was conceded by Sri J. S.Trivedi that there is no express provision in the Limitation Act providing for limitation for such anapplication and he suggested that the residuary Article 181 would apply. After having beard Sri Trivedi we are satisfied that there is no lacuna in Rule 6.
2. The appeal is a creature of a statute; a right of appeal exists only when it is granted by an ex-press provision of a statute. Here a right of appeal has been given from a judgment of a Single Judge:
on condition that he has declared in accordance with Rule 6 that the case is a fit one for appeal. The right of appeal granted by Rule 5 of Chapter VIII is a conditional right and can be availed of only when the condition is fulfilled. If for any reason the condition is not fulfilled there is no right and the party who is aggrieved by the judgment can have no grievance on the score that the condition was very onerous because as we said earlier he had no inherent right of an appeal. We are not prepared to agree that it was impossible for the applicant to follow the procedure for obtaining a declaration because it was open to it to make an application for a declaration on 8-2-1962 when Dhavan, J. heard arguments in the case and reserved judgment or at any time before the judgment was pronounced by Beg, J.
Rule 6 gave an option to make an application at the time when the judgment is pronounced or at any time before it is pronounced. It may be true that an application could not be made at the time when the judgment was pronounced because it was pronounced by Beg, J. and not Dhavan, J. and the application had to be made to Dhavan, J., but merely because one option became impossible it could not be said that the applicant was freed from the condition. It was not entitled even to an option. When an option was given to it, it had to act with prudence and in such a way that it would not be left without a remedy if one alternative became impossible. It could not plead that its failure to exercise one option should be excused because it could not exercise the other option. If there was a likelihood that it would not be able to exercise the other option its duty was to exercise the former option. The duty of the applicant was to make an application at one tune or another, and if it could not make it at one time, it should have made it at the other time. A person who has one of two alternative duties to perform is not excused for performing one duty because it has become impossible to perform the other.
Here it was open to the applicant to make an application to Dhavan, J., after the arguments wereheard or at any time subsequently before the judgment was pronounced. It knew that Dhavan, J. was here in Lucknow for a short time. It knew, when he reserved judgment, that it might be pronounced by some other Judge under Rule 1 (3) of Chapter VII. In any case when it received notice given on 27-3-1962, that the judgment was going to be pronounced not by Dhavan, J. but by Beg, J., it should have at once made an application addressed to Dhavan, J. for a declaration. If, therefore, no application for a declaration was made it was the fault of the applicant itself. It could have even requested Beg J. to delay the pronouncing of the judgment so long it did not make an application to Dhavan, J. for a declaration but as we said earlier it was not present at all before Beg, J.
3. We hold that this application is not maintainable. It is not addressed to Dhavan, J., and has been made after the judgment had been pronounced. The applicant does not get a right to make it after the pronouncement of the judgment simply because it could not be made at the time when it was pronounced. The impossibility was in respect of only one of the two alternatives; there was nothing impossible in the other alternative and it is not open to the applicant to contend that on account of the imposibttity of applying at the time when the judgment was pronounced it must be permitted to apply later. The application is, therefore, dismissed.