Rukmini Kumari v. Ram Shankar Sah — 1973 DIGILAW 46 (PAT)

Judgment S.Anwar Ahmad, J. 1. These two appeals arise out of Title Suit No. 5 of 1958 filed by the plaintiffs (respondents Nos. 1 and 2 in the present two appeals) for declaration of their one-third share in the suit properties and for recovery of possession over the said one-third share after partition by metes and bounds, There was also a claim for mesne profits both past and future. The suit was decreed by the learned Additional Subordinate Judge who ordered preparation of the preliminary decree. Against this order of the learned Additional Subordinate Judge, two title appeals were preferred before the District Judge, one by the principal defendants Nos. 1 and 2 (appellants in Second Appeal No. 74 of 1970) and the other by the pro forma defendant Rukmini Kumari (appellant in Second Appeal No. 73 of 1970). The appeals were heard by the learned Additional District Judge. He allowed the appeal of Rukmini Kumari by excluding the property (purchased by her from partition and dismissed the other appeal with the modification that defendants Nos. 1 and 2 were entitled to the plots which they reclaimed by making improvements therein. On receipt of the records by the trial Court, an Amin Commissioner was appointed to allot the shares to the different parties. On submission of his report objections were filed to it by the appellants of the present two appeals. The objections were rejected by the learned Subordinate Judge by his order dated the 23rd December. 1966, and the final decree was ordered to be prepared in accordance with the report of the Amin Commissioner, The appellants in the present two appeals before me did not wait for the preparation of the final decree and filed two appeals before the District Judge. Title Appeal No. 4 of 1967 was preferred by the appellant in Second Appeal No 74 of 1970 and Title Appeal No. 5 of 1967 was preferred by the sole appellant in Second Appeal No. 73 of 1970. In both the title appeals the Sarishtedar reported that the appeals had been filed against the order dated the 23rd December. 1966, confirming the report of the Amin Commissioner and not against the final decree which was yet to be prepared. In both the title appeals the Sarishtedar reported that the appeals had been filed against the order dated the 23rd December. 1966, confirming the report of the Amin Commissioner and not against the final decree which was yet to be prepared. On this point, the District Judge heard the lawyer for the appellants on the 17th March 1967 and, relying upon the decisions in AIR 1945 Pat 482 and ILR (1957) Bom 175 = ( AIR 1957 Bom 59 ) admitted the appeals subject to the objection, if any. by the other side at the time of hearing of the appeals. The appellants prayed for the stay of preparation and signing of the final decree and by order No. 14 dated the 1st May. 1967, passed in Title Appeal No. 4 of 1967. the District Judge stayed further proceedings in regard to preparation of the final decree subject to the appellants furnishing security, if any. as demanded by the trial Court. The learned Additional District Judge who heard the two appeals dismissed them with the modification in regard to allotment of plot No. 406. Hence the present two second appeals, one (Second Appeal No. 73 of 1970) by Rukmini Kumari, defendant No. 5 and the other (Second Appeal No. 74 of 1970) by defendants Nos. 1 and 2. 2. In this Court also an application was made in Second Appeal No. 74 of 1970 for staying the preparation of the final decree and this prayer was allowed by the Court by Order No. 13, dated the 16th December. 1972. At the time of hearing of the appeals. Mr. J. C. Sinha, counsel for the respondents, raised a preliminary objection that in spite of the clear position that the appeals before the lower appellate Court were filed prior to the preparation of the final decree, the learned Additional District Judge was under the wrong impression that he was dealing with an appeal from a final decree. This assumption of the Additional District Judge was clearly wrong and against the true state of affairs. He has, therefore, submitted that the two appeals before the Court of Appeal below and the two second appeals before this Court cannot be held to be maintainable in law as not having been preferred against a final decree. 3. Mr. This assumption of the Additional District Judge was clearly wrong and against the true state of affairs. He has, therefore, submitted that the two appeals before the Court of Appeal below and the two second appeals before this Court cannot be held to be maintainable in law as not having been preferred against a final decree. 3. Mr. J. M. Ghose, counsel for the appellants, did not challenge the fact that the two appeals before the District Judge were filed before the final decree was prepared but submitted that on that account it cannot be said that the appeals filed in that Court were not maintainable. He submitted that to some extent at least the fault was of the Court of Appeal below also. If the appeals were not competent, the Court ought not to have heard and decided them. He also submitted that many a times appeals were entertained without a copy of the decree. 4. The submission of Mr. J. C. Sinha, counsel for the respondents, is that (to) any omission or mistake on the part of the Court, acquiescence or conduct of the parties could not confer upon the Court the right to entertain or decide the appeal, because the said right is always the creation of statute. It is true that in the present case the appeals filed by the defendants in the Court of Appeal below were heard as if they were appeals against the final decree passed in a partition suit but that being not the correct position, on the face of it the two appeals were not maintainable and ought to have been dismissed as such by that Court. 5. In support of his submission. Mr, Ghose relied upon the decisions in Jagat Dhish Bhargava V/s. Jawahar Lal Bhargava, AIR 1961 SC 832 ; Phoolchand V/s. Gopal Lal. AIR 1967 SC 1470 and Shakuntala Devi Jain V/s. Kuntal Kumari, AIR 1969 SC 575 . In the case of Jagat Dhish Bhargava, AIR 1961 SC 832 the appeal was filed without the certified copy of the decree. Their Lordships (pointed out the difference between an appeal in which copy of the decree has not been filed along with the memorandum of appeal although it was prepared by the trial Court, and the appeal where no decree has been prepared by the trial Court till the time of its filing. Their Lordships (pointed out the difference between an appeal in which copy of the decree has not been filed along with the memorandum of appeal although it was prepared by the trial Court, and the appeal where no decree has been prepared by the trial Court till the time of its filing. Their Lordships were pleased to lay down: "If at the time when the appeal is preferred a decree has already been drawn up by the trial Court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court a decree in fact had not been drawn up by the trial Court; in such a case if an application has been made by the appellant for a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up, and it is the decree against which an appeal lies." The law laid down by their Lordships in the case of Jagat Dhish Bhargaya does not help the appellants because in the instant case they had filed the appeal prior to the final decree being prepared. so the appeal was premature and in ordinary course ought to have been dismissed as non-maintainable. To add to this, they did not take steps to have the decree prepared by filing the non-judicial stamp (no doubt under some misapprehension) but. on the contrary, got an order of stay passed by the Court of Appeal below. The aforesaid decision of the Supreme Court does not lay down any exception to the general rule of law that if an appeal is filed prior to the preparation of the final decree, it must be held to be premature and. consequently, not maintainable. In the second case (Phoolchand V/s. Gopal Lal, AIR 1967 SC 1470 ) relied upon by Mr. Ghose. consequently, not maintainable. In the second case (Phoolchand V/s. Gopal Lal, AIR 1967 SC 1470 ) relied upon by Mr. Ghose. their Lordships of the Supreme Court themselves considered the import of the earlier decision, ( AIR 1961 SC 832 ) in the following words: "In that case it was observed that every memorandum of appeal has to be accompanied by a copy of the decree appealed from, that this requirement of Order XII, Rule 1 of the Code of Civil Procedure is mandatory and in the absence of a copy of the decree the filing of the appeal would be incomplete, defective and incompetent. That no doubt is the correct position in law........." After laying down the above proposition of law, their Lordships pointed out that there may be exceptional cases in which an appeal may be competent without a copy of the decree having been filed along with the memorandum of appeal. The facts of Phoolchands case. AIR 1967 SC 1470 were that due to certain devolutions after the passing of the preliminary decree, an application was made for correction of the preliminary decree passed earlier. By this re-distribution, the share of Phoolchand (appellant in that case) was increased from one-fifth to one-half, The share of some of the parties to the suit was also increased. In spite of this change in shares, the trial Court did not prepare any formal decree on the basis of re-distribution of shares. An appeal was preferred before the High Court without a copy of the decree. On the objection of the respondents that the appeal was not maintainable as no copy of decree had been filed along with the memorandum of appeal, the High Court adjourned the matter to enable the appellant (Gopal Lal) to move the trial Court to draw up a formal decree. An application was accordingly filed before the trial Court but that application was rejected. The appeal before the High Court thereafter proceeded without a copy of the decree on record. The appeal was held to be competent by the Supreme Court on the ground that in spite of the efforts of the appellant, the trial Court did not pass an amended decree. The appeal before the High Court thereafter proceeded without a copy of the decree on record. The appeal was held to be competent by the Supreme Court on the ground that in spite of the efforts of the appellant, the trial Court did not pass an amended decree. In the present case, no application was made by the appellants to the trial Court for preparation of the final decree in the suit, on the contrary, they applied for stay of the preparation of the final decree, both before the Court of Appeal below as well as in this Court Thus Phoolchands case also is of no help to the appellants. 6 In the case of Shakuntala Devil Jain. AIR 1969 SC 575 , an appeal was filed before the Delhi High Court and along with the memorandum of appeal a plain copy of the order was filed. A prayer was made to entertain the appeal to give the appellant the urgent relief by passing an order of stay of the execution proceedings. A Bench of that High Court admitted the appeal and granted ad interim stay. The attention of the Court was not drawn to the fact that certified copy of the order had not been filed. On the objection of the respondent that the appeal was incompetent as the certified copy of the order under appeal had not been filed, the appellant obtained a certified copy of the order and filed it in Court. An application under Sec. 5 of the Limitation Act was also filed to condone the delay. Their Lordships were pleased to hold that the memorandum of appeal should have been accompanied by a certified copy of the order and in the absence of the requisite copy, the appeal was defective and incompetent. It may be stated that the order passed in that case was under Section 47, Code of Civil Procedure, and as such no formal decree was prepared. This case supports the contention of Mr. J. C. Sinha, counsel for the respondents, that although a plain copy of the order had been filed, still their Lordships were pleased to hold that the appeal was incompetent as the required certified copy of the order had not been filed. The facts of the case in hand are entirely different. This case supports the contention of Mr. J. C. Sinha, counsel for the respondents, that although a plain copy of the order had been filed, still their Lordships were pleased to hold that the appeal was incompetent as the required certified copy of the order had not been filed. The facts of the case in hand are entirely different. In the instant case as the appellants had filed the appeals against the final decree which was not in existence, and nothing was done by them to get the decree prepared, the appeals on their very face were incompetent. 7. As the two title appeals be fore the Court below were not maintainable without the certified copy of the final decree, they ought to have been dismissed and should not have been heard on merits. The appeals before the Court of appeal below being not maintainable, the two second appeals are also dismissed as being not maintainable.