9911796707
TMI Blog1983 (5) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... in the suit on the Original Side of the Bombay High Court for the enforcement of the plaintiff's claim for a large amount which inclusive of interest worked out to over ₹ 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 the defendant-appellant. The defendant appellant had contested the claim. 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 counter claim. In due course the suit came up for hearing before Bharucha,J. It appears that on the conclusion 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 installment in the manner prayed for in an affidavit containing such prayer, filed on behalf of the defendant. The learned single Judge for reasons recorded in his judgment passed a decree in favour of the plaintiff-respondent for a sum of ₹ 40,00,000. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same has not been received by us. Appeal is therefore in time. Kindly see that the said appeal is 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. 5. 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 directing payment of the Decretal amount by monthly E installments of ₹ 3,50,000 each, the appellants beg to appeal therefrom on the following amongst other grounds. 6. In this memorandum of appeal directed against the order of installments, 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 installment of ₹ 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourned date i.e. 8th April, 1981 in terms of the earlier 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 plaintiff-respondent before the Division Bench that the plaintiff-respondent j| would be 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 filed an appeal, being appeal No. 36 of 1981 against the provision regarding installments which had been withdrawn on 21.1 1981 by the defendant-appellant, plaintiff respondent 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 the defendant appellant to complete the arguments and the Court thereafter proceeded to hear the respondent on the question of maintainability. On 19.6.1981, the Division Bench dismissed the appeal up holding the preliminary objection to the maintainability of the appeal on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of Mr. Nariman that the right to prefer an appeal is a creature of Statute and unless the right to prefer an appeal is conferred by law a litigant cannot prefer any appeal. Mr. Nariman submits that an order regarding installment is not appealable under the Code and such an order cannot also be considered to be a 'judgment' within the meaning of Clause 15 of the Letters Patent. Mr. Nariman, 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 consequence and cannot, in any way, prejudice the right of the defendant-appellant to prefer a proper appeal against the decree. 10. Mr. Nariman has next contended that notwithstanding the amendment introduced in Order 20, Rule 11 of the Code providing that the order of installment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this connection has referred to the decisions of this Court in Jagat Dhish Bhargavc. v. Jawaharlai Bhargava and Ors. [1961]2SCR918 and Shakuntla Devi Jain v. Kuntal Kumari and Ors. [1969]1SCR1006 Mr. Nariman 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 parts enforceable against the same or several defendants, separate appeals against such distinct and severable directions or orders or provisions in a decree may be filed. It is Mr. Nariman's argument that in the instant case, even if the order for installment be considered to be a part of the decree, the decree shall consist of two distinct and severable parts, (1) on the merits of the claim and (2) on the question of payment in installment. Mr. Nariman has next contended that the provisions of Order 2, Rule 2 of the Civil Procedure Code do not in any way affect the maintainability and the merits of the present appeal No. 44 of 1981. He has submitted that the said provisions have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. According to Mr. Nariman, the right 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 rile the present appeal against the decree. He argues that the conduct that can be attributed to the appellant is that he prayed for installments, filed an appeal against the order regarding installments and he has withdrawn the same. He reiterates that if the earlier appeal against the order regarding the installments is held to be incompetent, the conduct of the appellant in withdrawing the incompetent appeal is indeed of no consequence. Mr. Nariman argues that the prayer for installments is made only on the basis that if the case of the appellant is not acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefits 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 teethe 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 statement amounts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on fraud, and for the reason is no less applicable when the person standing by is a minor. As the estoppel is raised immediately by the conduct giving raise to it lapse of time is of no importance, and for the reason the effect of acquiescence 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, lie does not suffer by A's subsequent assertion of his rights; (3) acquiescence is founded on conduct with a knowledge of one's legal rights, and hence A must know of his own rights; (4) A must know of B's mistaken belief; with that knowledge it is inequitable for him to keep alliance and allow B to proceed on his mistake; (5) A must encourage R in his expenditure of money or other act, either directly or by abstaining from asserting his legal righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal is not maintainable and it is his submission that the said view of the Division Bench is any event erroneous and unsustainable in law. 13. 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 maintainable in view of the filing of the earlier appeal by the defendant-appellant against the provision regarding installments and the withdrawal of the same. The learned Attorney-General has argued that the provision in the judgment regarding installments on the basis of the affidavit filed on behalf of the defendant-appellant forms 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 CPC. Relying on these provisions, the learned Attorney-General contends that the order regarding installments which is required to be incorporated in the decree, necessarily forms a part of the decree itself. It is his contention that the mere fact that it may take a little ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defendant-appellant having chosen to file an appeal only against a part of the decree confined to the payment of the decretal amount in installments and not against the decree on its merits and having with drawn the said appeal unconditionally has clearly forfeited his right to prefer the instant appeal. 15. 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 the statutory provisions earlier referred to, the defendant appellant must be held to have clearly abandoned or waived his right of preferring an appeal against the decree by filing an appeal only against the part of the decree directing the payment of the decretal amount in installments. It is the argument of the Learned Attorney General that defendant-appellant had the right to prefer an appeal against the whole o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent appeal; and 4. The defendant-appellant having asked for payment of the decretal amount in installments 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 installments and had suffered prejudice; and the defendant appellant having obtained a benefit or advantage under the decree the prejudice of the plaintiff-respondent cannot now turn round to question the correctness of the decree passed. 17. 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 course in the absence of a suitable provisions of some law conferring on the party concerned the right to file an appeal against any 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 law and also by the conduct of the party The law of limitation may deprive a party of the right he may enjoy to prefer an appeal by virtue of any statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 installments 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 installments to be incorporated in the decree, the question for consideration is whether the earlier appeal filed against the provision in relation to installments, is an appeal against the decree or against an order, and the further question 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 installments or refusing to grant installments will not be competent, if the direction granting or refusing to grant installment is considered 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 Clause 15 of the Letters Patent and will not be appealable as such. There is, indeed, no provision in any law to make such an order appealable. If, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an independent order which is to be incorporated in the decree. Appeal No. 36 of 1981 had been filed soon after the pronouncement of the judgment, before the decree incorporating the order regarding the installments had been drawn up. 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. 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 1981 the order regarding installments had not been incorporated in the decree, the order retained 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 filed against an order regarding installments treating the fame to be an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the date of the decree under appeal. Therefore there is no doubt that the requirements that the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent. 24. Also in the case of Shankuntala Devi v. Kuntal Kumari (supra), this 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 memorandum 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, Rule 1 the appellate Court can dispense with the filing of the copy of the judgment but it has no power to dispense with the fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as drawn to the decision in Bodh Narain Mahto v. Mahabir Prasad and Ors. A.I.R. 1940 Tat. 176 where Agarwala, J. seems to have held that where no formal decree was prepared in the case of a decision under Section 47 the appellant was not required to file a copy of the order with the memorandum of appeal. We are unable agree with this ruling. The correct practice was laid down in Kamia Devi v. Tarapada Mukherjee 15 C.L.J. 498 where Mookerjee, J. observed: 'Now it frequently happens that in cases of execution proceedings, though there is a judgment, an order, that is, the formal expression of the decision is not drawn up. In such cases the concluding portion of the judgment 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 memorandum 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, there is a judgment stating the grounds of the decision and a separate order is also drawn up embodying the formal expression of the decision, copies of both the documents must be attached to the memorandu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. It is clear from the provisions of Order 2, Rule 2 that this rule is applicable only to suits and cannot in terms apply to appeals. Even if an appeal be considered to be a continuation of a suit for certain purposes, the provision of Order 2, Rule 2 cannot in terms be made applicable to an appeal in view of the scheme of the said rule and the language used therein. Order 2, Rule 2, contemplates that at the initial stage of the institution of the suit, the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, has to be made and further deals with the consequences of non-compliance with the requirements of the said rule. It is indeed doubtful whether the principles underlying this rule can be said to be applicable to an appeal. Even if the principles underlying Order 2, Rule 2 can be considered to apply to an appeal, the maintainability of the instant case cannot be held to be affected in any way as the cause of action in respect of the present appeal is entirely different from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding installments before the filing of the 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 installment decree passed by the trial Court. We may not that the 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 installments and not against the decree on merits. 31. We shall now proceed to consider whether the facts and circumstances of this case justifiably lead to the conclusion that the defendant-appellant has become disentitled to file the present appeal. 32. It is not in dispute that the defendant-appellant 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 installments. The filing of an affidavit on the conclusion of hearing and 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 defendant-appellant as to disentitle him to file an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the certified copy of the decree and also of the judgment clearly manifests the intention of the defendant-appellant to prefer an appeal against the decree. It is common Knowledge that in 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 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 depriving 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 installments 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 regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier 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 had never intended to relinquish or abandon its right to file an appeal against the decree. The earlier appeal No. 36 of 1981 which was filed on 20.1.1981 and was withdrawn on 21.1.1981 at the time of admission, could not possibly have caused any prejudice to the plaintiff-respondent. The promptitude with which the present appeal was filed just after a week on 29.1.1981 indicates that the defendant appellant had never intended to give up their right of appeal against the decree and they have acted with all promptness and earnestness on being properly advised as to the legal position and as to their legal rights. The filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and had filed the present appeal within eight days thereafter. In an appropriate case any party which derives any advantage under a decree or order may, depending on the facts and circumstances of the case, disentitle himself to challenge the same and will be estopped from filing an appeal against the same, It is also to be borne in mind that no execution of decree passed in a suit on the original side is normally permitted unless a certified copy of the decree is on the record in the execution proceeding. A certified copy of the decree is not available so long as the decree is not drawn up and filed. The present appeal had been filed long before the decree had been drawn up and, therefore, there could be no question of execution of any decree at the time when the present appeal was filed. The question of the defendant appellant having obtained an advantage under the decree does not therefore, really arise. In the case of Bhau Ram v. Baijnath [1962]1SCR358 this Court observed at p. 362: It seems to us, however, that in the absence of some statutory provision or of a well-recognised principle of equity, no one can be deprived of his legal rights including a statutory right of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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