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2008 DIGILAW 295 (GAU)

Dula Bose v. Amalendu Guha and Anr.

2008-04-23

T.NANDA KUMAR SINGH

body2008
1. Heard Mr. B.K. Goswami, learned senior counsel assisted by Mrs. T. Goswami, learned counsel appearing for the appellant as well as Mr. A.S. Choudhury, learned senior counsel assisted by Miss P. Deb, learned counsel appearing for the respondents. 2. This revision petition is directed against the order of the learned Civil Judge (Senior Division) No. 1 dated 21.3.2007 whereby the learned Civil Judge (Senior Division) dismissed the appeal on the sole ground that the stranger to the original suit cannot file the appeal against the judgment and decree passed in that suit. For deciding the issue in the present revision petition a short fact is required to be noted. Admittedly, the present petitioner is not one of the parties in Title Suit No. 52 of 2005, which was decreed ex parte on 22.9.2005. 3. The petitioner filed the said Title Appeal No. 72 of 2005 along with the leave to file the appeal against the ex parte decree dated 22.9.2005 passed in Title Suit No. 52 of 2005 on the ground that the said ex parte decree passed in Title Suit No. 52 of 2005 shall prejudicially affect the right of the present petitioner in the suit land of the Title Suit No. 52 of 2005. It is stated that the Title Suit No. 52 of 2005 was for a decree for a specific performance of contract in respect of the property, i.e., suit land and house for which the petitioner has certain right and interest. Such being the situation according to the petitioner, the said ex parte judgment and decree dated 22.9.2005 passed in Title Suit No. 52 of 2005 shall adversely affect the right of the petitioner. Accordingly, the petitioner filed the said Title Appeal No. 72 of 2005 along with the application for leave. 4. Mr. Goswami, learned senior counsel appearing for the petitioner has taken this court to the different provisions of the CPC. He also contends that in nowhere of the CPC it is mentioned that only the parties to the decree shall file the appeal contemplated in section 96 and order 43 of the rule 1, CPC. The meaning of the words "aggrieved party" "appellant" are not defined in the CPC. Normally appeal against the judgment and decree is filed by the aggrieved party, Therefore, according to Mr. The meaning of the words "aggrieved party" "appellant" are not defined in the CPC. Normally appeal against the judgment and decree is filed by the aggrieved party, Therefore, according to Mr. Goswami, the petitioner, being the aggrieved by the ex parte judgment and decree passed on 22.9.2005 in Title Suit No. 52 of 2005, had filed the Title Appeal No. 72 of 2005. 5. As stated above, the said Title Appeal No. 72 of 2005 was also accompanied with a application for leave for filing the appeal. The learned senior counsel by relying on the decision of the Apex Court in Smt. Jatan Kanwar Goleha v. Mis. Goleha Paroperties (P.) Ltd., AIR 1971 SC 374 submits that even the person who is not a party to the suit may prefer an appeal with the leave of the court and such leave should be granted if he would be prejudicially affected by the judgment. The relevant portion of the para No. 3 of the AIR in Smt. Jatan Kanwar Goleha (supra) is quoted hereunder - "It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment. 6. The learned senior counsel also relied on the decision of the Apex Court in the case of B.M. Agarwal v. Chancellor, University of Allahabad and Others, (2003) 6 SCC 500 wherein the learned Apex Court held that even though the appellant was not a party in the High Court, he could file the appeal before the Apex Court if the judgment and order passed by the High Court adversely affected the right and interest of the appellant. In the present case, the learned Civil Judge (Senior Division) No. 1 Silchar in the same appeal, i.e., Title Appeal No. 72 of 2005 had already passed the order dated 23.12.2005 after discussing the maintainability of the appeal, i.e., T.A. No. 72 of 2005 filed by the petitioner, that the petitioner could file the appeal, i.e., T.A. No. 72 of 2005 after obtaining the leave of the court. Learned Judge passed an order dated 23.12.2005 in T.A. No.72 of 2005 for granting leave to file the appeal by giving sufficient reasons. Such being the situation Mr. Learned Judge passed an order dated 23.12.2005 in T.A. No.72 of 2005 for granting leave to file the appeal by giving sufficient reasons. Such being the situation Mr. B.K. Goswami, learned senior counsel appearing for the appellant also contends that since the maintainability of the present T.A. No. 72 of 2005 filed by the present appellant had already been discussed and the leave had been granted for filing the appeal, the learned Civil Judge (Senior Division) No. 1 Silchar ought not to have passed the present impugned order dated 21.3.2007 inasmuch as his earlier order dated 23.12.2005 is very much binding to him. 7. Mr. A.S. Choudhury, learned senior counsel appearing for the respondents submits that the decision of the Apex Court in Smt. Jatan Kanwar Goleha (supra) may not be applicable to the present case inasmuch as the case in Smt. Jatan Kanwar Goleha (supra) was in respect of the company matter. In order to support of his contention, the learned senior counsel Mr. A.S. Choudhury had drawn the attention of this court to the fact of the case in Smt. Jatan Kanwar Goleha's case. 8. On perusal of Smt. Jatan, Kanwar Goleha's case, it is clear that the ratio laid down by the Apex Court in Srnt. Jatan Kanwar Goleha (supra) is at [Para 3] which has been quoted above. It is fairly well settled principle of law that only ratio laid down by the Apex Court in a certain case is binding to this court. For the sake the repetition, the ratio said down by the Apex Court in Smt. Jatan Kanwar Goleha (supra) was that person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment. 9. Keeping in view of the ratio laid down by the Apex Court in B.M. Agarwal (supra) this court is of the considered view that the interference of the impugned judgment and order dated 21.3.2007 passed In T.A. No. 72 of 2005 is called for and accordingly set aside. The appeal, i.e., T.A. No.72 of 2005 shall be heard on merit by the learned Civil Judge (Senior Division) No. 1, Silchar. The revision is allowed accordingly.