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Anjani Prasad and ors. Vs. IshwardIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 647 of 1977
Judge
Reported inAIR1982MP10
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 96 and 115 - Order 20, Rule 6
AppellantAnjani Prasad and ors.
RespondentishwardIn and ors.
Appellant AdvocateR.P. Pandey, Adv.
Respondent AdvocateL.P. Singh, Adv.
DispositionRevision dismissed
Cases ReferredCourt of Appeal (See New Mofussil Co. v. Shankerlal
Excerpt:
.....to challenge the order of the lower appellate court, dated 1-8-1973, removing their names from the array of the appellants. it is, however, well recognised that a person not a party to the decree may file an appeal if he is adversely affected by the order of the trial court provided he obtains leave from the court of appeal (see new mofussil co. , after the expiry of sixty years from the date of the mortgage in the year 1907 and also because the appeal against the decree in suit by these persons bad become barred by time, it was argued for the applicants that no permission to file an appeal should have been granted. the lower appellate court was perfectly within its jurisdiction to pass that order and that order is not liable to be interfered with in revision. 6. even if the appeal..........as appellants. the objection was that they could not file an appeal as they were notparties to the decree appealed against. that objection was upheld by order, dated 1-8-1973. it was as a consequence of this order that applications were moved for permission to file appeal against the decree and it was suggested that the appeal already filed by other plaintiffs be treated as appeal filed by them also. now, it cannot be denied that except with the leave of the court persons, who are not parties to a decree, have no right of appeal. rightly, therefore, instead of challenging the order dated 1-8-1973, those persons applied for permission to file an appeal. the civil procedure code does not in terms lay down as to who can be a party to an appeal. since, however, an appeal has to be filed only.....
Judgment:
ORDER

B.C. Varma, J.

1. One Harinandan is said to have mortgaged certain property in favour of one Vishwanath in the year 1907. Twenty one persons claiming to be heirs of the mortgagor Harinandan filed a suit (giving rise to these proceedings) for redemption of the mortgage, Some of the defendants are sued as heirs of the mortgagee Vishwanath, whale others are transferees from them. The defendants denied the mortgage and claimed right and title in the suit property independent of Vishwanath. Vasudeo, one of the original plaintiffs, died during the pendency of the suit. His legal representatives applied for substitution beyond the prescribed period of 90 days. The defendants objected to the substitution but their objection was turned down. However, by order dated 18-6-t969, the trial Court directed that certain plaintiffs, who are non-applicants Nos. 4 to 14 in this revision, have been unnecessarily joined as plaintiffs. Since they claimed no interest in the suit property, their names were directed to be deleted and the suit proceeded in their absence. This order dated 18-6-1969 deleting the names of those plaintiffs was not challenged then either by appeal at by revision. The suit ended in partial success of the plaintiffs and, therefore, both the parties preferred separate appeals before the District Judge against the decree passed in that suit. In appeal preferred by the plaintiffs, all those persons whose names were deleted as plaintiffs by the trial Court's order, dated 18-6-1969, were also joined as appellants. No prayer was made for permission to file appeal on their behalf. Besides attacking the correctness of the decree partly dismissing theclaim, they also challenged the correctness of fee trial Court's order, dated 18-6-1969, deleting their names as plaintiffs.

2. The defendants objected to the joinder of those plaintiffs (non-applicants 4 to 14) as appellants principally on the ground that the order dated 18-6-1969 was a decree and since it was then not challenged, it could not now be challenged after the lapse of the requisite period of limitation. This objection was upheld and by order, dated 1-8-1973, the names of those appellants were ordered to be removed from the array of the appellants. This order was again not challenged by any proceeding before this Court. Instead, the appellants-plaintiffs in their appeal filed an application on 2-8-1973 seeking permission to amend the plaint trying to explain how the other persons, whose names were deleted, had interest in the suit property. By yet another application, the names of the other plaintiffs (non-applicants 4 to 14) were sought to ba added as appellants. Permission was also sought to file the appeal by them and it was added that the appeal already filed be treated on their behalf also. It was also alleged that the proceedings taken up to that stage by them were under the advice of the counsel, Lal Praduman Singh, a very senior Advocate of Rewa. No specific order was passed on these applications, but the appeal itself was decided on 11-12-1977. The decree of the trial Court was set aside and the suit was remanded for retrial directing the joinder of the other persons (non-applicants 4 to 14) as plaintiffs. A revision (Civil Revision No. 79 of 1974) was preferred against that remand order.This Court vide order, dated 3-9-1976, passed in that revision set aside the remand order and directed the lower appellate Court to first decide the application, dated 2-8-1973. The parties were then heard and by the impugned order the District Judge, Rewa, allowed these applications as a result of which the non-applicants 4 to 14 have also been treated as appellants before the lower appellate Court. The plaint also stands amended. This revision is directed against this order of the District Judge.

3. The first contention raised by Shri Ramayan Prasad Pandey, learned counsel for the applicants, is that the order of the trial Court directing deletion of the names of the non-applicants 4 to 14 amounts to a decree. As no appeal was preferred against it, that decree had become final and could not be challenged in the manner it was permitted to be done. The term 'decree' is defined in Section 2(2) of the Code of Civil Procedureto mean the formal expression conclusively determining the rights of the parties so far as the Court expressing it is concerned. The decree may either be preliminary or final and may relate to all or any of the matters in controversy in the suit. After considering several authorities of various High Courts, the Supreme Court in Diwan Brothers v. Central Bank of India, Bombay, (AIR 1976 SC 1503) has held that under the definition of a decree contained in Section 2(2), Civil P. C., the three essential conditions necessary are : (i) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii) that the adjudication must be formal and final and must be given by civil or revenue Court. And in Bai Chanchal v. S. Jalalud-din, AIR 1971 SC 1081, after referring to the provisions of Rule 3 of Order 23 and Rule 6 of Order 12, Code of Civil Procedure, it has been held that in the same suit there can be mote than one decree passed at different stages. It appears that the form of the expression is not material, but what really matters is that the adjudication must conclusively determine the rights of the parties relating to all or any of the matters in controversy in suit. In a suit, there may be issues the findings on which alone may result in disposal of the whole suit. Such finding may enable the Court to pronounce a judgment and decree may be drawn up in terms of Order 20, Rule 6. On the other hand, there may be certain issues the findings on which may not be sufficient for the decision of the suit itself. In that event, the Court may postpone the hearing of the suit for such further evidence and arguments as the case may require. There is a clear distinction between findings which result in decision of the suit and those which do not. The result of suit, i. e., its final adjudication can be embodied in a decree only when the findings on any or all the issues involved result in disposal of the whole suit. Examining the term 'decree' in this light in quite some details, a Full Bench of the Nagpur High Court in Baliram Ganpatrao Bhoot v. Mano-har Damodar Bhoot, AIR 1943 Nag 204 held that a finding on any point in controversy in a suit could ordinarily be final so far as the Court is concerned, but unless that finding is such as is sufficient for the disposal of the suit, there can be no judgment and no decree and unless there is a decree there can be no appeal. A Full Bench of the Lahore High Court in Barkat Ram v. S. Bhagwan Singh, AIR 1943 Lah 140 has held that the findings resulting in rejection of the plea of want of jurisdiction and limitation even ifit may be treated as separate entity distinct from the rest of the judgment yet could not be treated as decree. The emphasis laid is that in order to constitute a decree the determination of questions must conclusively determine the rights of parties. Reliance there was placed upon another Full Bench decision of the Calcutta High Court in Jogodishury Debea v. Kailash Chandra, (1897) ILR 24 Cal 725. In Baliram's case (AIR 1943 Nag 204) (supra), the Full Bench of the Nagpur High Court reached a conclusion that unless a finding is of such nature as to be sufficient for decision of the suit and gives formal expression to its adjudication in the form of a decree, it cannot give rise to a right of appeal. The Full Bench further held as follows:

'..... no finding or interlocutory orderwhich is not sufficient to dispose of the suit as a whole can in itself give rise to a right of appeal except where an appeal is expressly provided. In no case can a party come up in appeal unless a formal decree as outlined above is drawn up and signed.'

Learned counsel for the applicants relied upon certain decisions where the view taken is that an order dismissing the plaintiff's claim on an alternative ground, or an order striking out the names of certain defendants against whom the suit was held not maintainable because on a distinct cause of action the relief could not be granted, or because the plaintiff exonerated certain defendants who were held wrongly joined in the suit and the suit against them was given up by the plaintiffs has been held to be a decree and as such appealable (See Shrideo Ram Janki Mandir v. Nathuram, ILR (1941) Nag 90 : (AIR 1941 Nag 84); Nand Kumar Sinha v. Pashupati Ghosh, AIR 1941 Pat 385; Shair Ali v. Jag-mohan Ram, AIR 1931 All 333 (2) and Che-tanlal Purshottam Singh Daoo v. Dau G. S. Gupta, AIR 1938 Nag 233. Examination of all such cases would reveal that on the facts of those cases the Courts have reached a conclusion that as regards the particular parties to suit, there was a conclusive determination of their rights with regard to all or any of the matters in controversy in suit. However, commenting upon the decision in Shrideo Ram Janki Mandir's case where the order dismissing the suit, on one of the two alternative causes of action was held to be a decree, the Full Bench in Baliram's case observed that the result of that view would be to fling the doors wide open to appeals from findings on interlocutory orders which are not sufficient for the decision of the suit with the result that Section 96, C. P. C. would berendered nugatory. Relying upon a decision of the Privy Council in Maharajah Moheshar Singh v. Bengal Government, (1857-59) 7 Moo Ind App 283 their Lordships further said that such a course would be detrimental to the expeditious administration of justice. In my opinion, the proper course to be followed in cases where it is felt for one or the other reason the suit cannot proceed against some of the plaintiffs or the defendants is to strike out the names of such persons from the cause title of the suit holding that they cease to be party to the suit. The persons whose names are so struck out should be held to have been removed from the suit. It will not be proper to hold that the suit has been decided against such persons. Such a course was followed in a Division Bench decision of the Madras High Court in Jujishti Panda v. Lakshmana, AIR 1933 Mad 435. In that case certain defendants were dismissed from the suit before the suit ultimately ended in a compromise. They were dismissed from the suit because the suit could not possibly succeed against them and also because in view of the defence raised by them, they were not proper parties to the suit. Following an earlier Full Bench decision in Abdul Sao v. Sundara Mudaliar, AIR 1930 Mad 817, their Lordships said that where parties have been wrongly joined and the suil against them is given up by the plaintiff or upon that ground he exonerates them or there is a finding come to that they have been wrongly joined, then the correct procedure is to strike out their names as having been' improperly impleaded. In such circumstances, they cease to be parties to the suit. The Division Bench ruled that such defendants must be treated as persons who have been dismissed from the suit and not as persons against whom the suit has been dismissed. These two Madras decisions have been followed by the Andhra Pradesh High Court in Kumaram Kamesam Bhukta v. Kumaram Lakshminarasama, AIR 1960 Andh Pra 114.

4. It may, however, be that while trying the claim of necessary parties, the Court may find that claims of such of those parties must be dismissed. Under such circumstances, the proper course would be not to strike out the names of such persons under Order 1, Rule 10, C. P. C., but to pass a decree dismissing their claim. This was the course suggested in Manohar Lal v. Roshan Lal, AIR 1938 Lab 799. In that case, four persons sued for redemption of a mortgage. After trial, the Court came to a conclusion that claims of two of those persons should he dismissed, Instead of drawing up a decree, the Courtstruck out their names in exercise of powers under Order 1, Rule 10, C. P. C. Commenting upon the course of procedure so adopted, it was observed that it only resulted in multiplicity of proceedings. The correct procedure pointed out was to keep the names of the plaintiffs on record until a preliminary decree is passed and then the claims of such plaintiffs should be dismissed as part of the preliminary decree. The obvious result of such a course would be that if an appeal was preferred against that preliminary decree, the claims of such parties concerned would be heard together. In the instant case, redemption was claimed by certain plaintiffs as heirs of Harinandan and also by others (non-applicants 4 to 14). The order-sheet, dated 18-6-1969, which has given rise to all the trouble in the case, shows that it was not disclosed in the plaint that the plaintiffs other than the sons of Harinandan have any interest in the suit property. It was, therefore, held by that order that all the other plaintiffs except the sons of Harinandan were not necessary parties to the suit, and therefore, their names were struck out. After this, the suit proceeded in the absence of those plaintiffs and ended in a decree. This order clearly indicates that the rights of those plaintiffs were not determined. There was no trial and consequently no adjudication of their rights in regard to matters in controversy in suit obviously when those persons were discharged from the suit. Since there was no decision, no decree was drawn up embodying that decision. All that the order means is that those plaintiffs were improperly joined in the suit and their names were struck out. In my opinion, that order contains a mere finding that those persons were not necessary parties to the suit and is not a decree. Necessarily, therefore, they could not file any appeal against it.

5. It was then contended that as the non-applicants 4 to 14 did not file any appeal against the final decree, they could not have been permitted to join as appellants in the appeal already preferred by the other plaintiffs particularly so when they failed to challenge the order of the lower appellate Court, dated 1-8-1973, removing their names from the array of the appellants. This argument may have been of some consequence had not those persons made applications dated 2-8-1973 for permission to be joined as appellants. It may be seen that when the appeal was initially filed, these persons were shown as appellants. The objection was that they could not file an appeal as they were notparties to the decree appealed against. That objection was upheld by order, dated 1-8-1973. It was as a consequence of this order that applications were moved for permission to file appeal against the decree and it was suggested that the appeal already filed by other plaintiffs be treated as appeal filed by them also. Now, it cannot be denied that except with the leave of the Court persons, who are not parties to a decree, have no right of appeal. Rightly, therefore, instead of challenging the order dated 1-8-1973, those persons applied for permission to file an appeal. The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. Since, however, an appeal has to be filed only by a person who is aggrieved by an order sought to be appealed against, a parly aggrieved by a decision has a right to prefer an appeal. It is, however, well recognised that a person not a party to the decree may file an appeal if he is adversely affected by the order of the trial Court provided he obtains leave from the Court of Appeal (See New Mofussil Co. v. Shankerlal, AIR 1941 Bom 247.) In the present case, the lower appellate Court by the impugned order has granted such permission to those appellants whose names were struck out as plaintiffs holding that they were not necessary parties to the suit. Since the equity of redemption had come to an end in the year 1967, i. e., after the expiry of sixty years from the date of the mortgage in the year 1907 and also because the appeal against the decree in suit by these persons bad become barred by time, it was argued for the applicants that no permission to file an appeal should have been granted. While allowing the application, the lower appellate Court has found that the trial Court's decree read with the order, dated 18-6-1969, does prejudicially affect the interest of those persons in the subject matter of the suit and, therefore, they are persons aggrieved. It was on these findings that these persons were permitted to figure as appellants in the case and to prefer an appeal against the decree before the lower appellate Court. It cannot be said that in passing this order the lower appellate Court. has either acted beyond its jurisdiction of exercised jurisdiction either illegally or with material irregularity. The lower appellate Court was perfectly within its jurisdiction to pass that order and that order is not liable to be interfered with in revision. The second contention advanced for the applicants is also, therefore, rejected.

6. Even if the appeal by these persons is taken to be filed on the date when they madean application on 2-8-1973 for permission to file such appeal, the delay in filing the appeal is clearly excusable. The application disclosed that the delay was on account of the legal advice which they sought from Shri Lal Praduman Singh, Advocate, who came to argue this case for them before this Court. It cannot be denied that Shri Lal Praduman Singh is a very senior Advocate of the Rewa Bar and has practised for good many years on the civil side. It cannot also be said that the advice given by Mm was mala fide. I am of the opinion that looking to the matter in controversy, the advice given by Shri Lal Praduman Singh at different stages of the litigation was quite bona fide. Therefore in my opinion, the delay in filing the appeal by these persons is liable to be condoned.

7. No other point was pressed.

8. The revision fails and is dismissed. There shall, however, be no order as to costs.


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