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2025 DIGILAW 139 (ALL)

Girja Shankar v. Ram Sajeevan

2025-01-30

RAJNISH KUMAR

body2025
JUDGMENT : Rajnish Kumar, J. 1. Heard, Shri Tarun Kumar Pandey, learned counsel for the appellants. 2. Learned counsel for the appellants, while assailing the judgment and decrees passed by the courts below, submits that in the suit for permanent injunction filed by the appellants, an order of interim injunction was passed restraining the respondents from interfering in the peaceful possession of the appellants. However during pendency of the suit a sale deed was executed by respondents of the property in dispute, therefore, by way of amendment the same was challenged in the suit, but neither any issue was framed in regard to the same nor finding was recorded. Being aggrieved, an appeal was filed. He further submits that the decree passed by the trial court was not before the appellate court, whereas an appeal can be filed against the decree under Section 96 of the Civil Procedure Code (here-in-after referred as CPC), therefore, the appeal could not have been decided in it's absence, but without considering it and the grounds raised by the appellants in the appeal, the appeal has been dismissed and the judgment and decree passed by the trial court has been affirmed, therefore the same are not sustainable in the eyes of law. 3. Having considered the submissions of learned counsel for the appellants, I have perused the material placed on records of this appeal and the judgment and decrees passed by the courts below. 4. The suit for permanent injunction was filed by the appellants, in which the interim injunction was granted on 30.04.1988 restraining the respondents from interfering in peaceful possession of the appellants. Therefore it is apparent that there was no restrain in regard to the sale or otherwise of the land in dispute or maintaining status quo of the property in dispute. During pendency of the suit the land in dispute was sold by the respondents, therefore, by way of amendment the sale deed was challenged raising certain grounds. Therefore it is apparent that there was no restrain in regard to the sale or otherwise of the land in dispute or maintaining status quo of the property in dispute. During pendency of the suit the land in dispute was sold by the respondents, therefore, by way of amendment the sale deed was challenged raising certain grounds. The trial court initially framed seven issues and subsequently three additional issues were framed, out of which the issue no.8 was "Whether the sale deed in dispute shown in list 'B' is liable to be cancelled on the basis of sub-paragraphs of paragraph 4 of plaint?" The trial court after considering the pleadings, material and evidence on record decided the issue no.1 i.e."Whether the plaintiffs are owner and in possession of the land in dispute" and the aforesaid issue no.8 in regard to cancellation of sale deed recording a categorical finding that the appellants have not been found owner and in possession of the land in dispute and in all the revenue record-of-rights, the name of defendant Ram Suman Pandey is recorded alongwith other co-tenure holders, who have not been impleaded by the appellants as defendants in their plaint. 5. The trial court further considering the issue of cancellation of sale deed on the grounds raised in the suit found that the sale deed in question has been executed in accordance with law and it cannot be cancelled on the grounds raised in the suit. Therefore the contention of learned counsel for the appellants that neither any issue was framed in regard to cancellation of sale deed nor any finding was recorded is misconceived and not tenable. Being aggrieved, the appellants filed the appeal before the lower appellate court. 6. Therefore the contention of learned counsel for the appellants that neither any issue was framed in regard to cancellation of sale deed nor any finding was recorded is misconceived and not tenable. Being aggrieved, the appellants filed the appeal before the lower appellate court. 6. The lower appellate court, after framing two points for determination to the effect, "As to whether the appellants are entitled for the reliefs claimed in the plaint in regard to land in dispute on the basis of facts stated in the plaint." and "As to whether the impugned judgment and order passed by the trial court is liable to be interfered with" and after considering the pleadings, evidence and material on record found that the appellants have failed to prove their possession and ownership on the land in dispute Gata No.565Ga and the judgment and decree passed by the trial court has been passed in accordance with law, which is not liable to be interfered with and dismissed the appeal confirming the judgment and decree passed by the trial court in the suit. This court does not find any illegality or error in the findings recorded by the courts below. 7. A ground has been raised that the first appellate court could not have decided the appeal as the 'decree' passed by the court below was not prepared and before it on the ground that the appeal can be filed only against the decree under Section 96 CPC, which provides the appeal from original decree, therefore, unless the decree was prepared and before the appellate court, the appeal could not have been decided. 8. The decree is framed under Order 20 Rule 6 and 7 of CPC. Rules 6 and 7 provides the contents of decree etc. and date of decree, which are extracted here-in-below:- " 6. Contents of decree. —(1) The decree shall agree with the judgment; it shall contain the number of the suit, the [names and description of the parties, their registered addresses,] and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. (2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid. (2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid. (3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter. [ 6A. Preparation of decree .—(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the court shall for the purposes of Rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.] 6-B. Copies of judgments when to be made available. —Where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rule made by the High Court.] 7. Date of decree. —The decree shall bear the day on which the judgment was pronounced, and, when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree." 8. Rule 6 provides that the decree shall agree with the judgment and it shall contain the number of the suit, description of the parties, their registered addresses, particulars of the claim and relief granted or other determination of the suit including the amount of costs incurred in the suit and in what proportions such costs are to be paid etc. Rule 6-A provides the preparation of decree. Rule 6-A (2) provides that the appeal may be preferred against the decree without filing a copy of the decree and in such a case copy made available to the party by the court shall for the purposes of Rule 1 of Order 41 be treated as the decree. Rule 6-A provides the preparation of decree. Rule 6-A (2) provides that the appeal may be preferred against the decree without filing a copy of the decree and in such a case copy made available to the party by the court shall for the purposes of Rule 1 of Order 41 be treated as the decree. But as soon as the decree is drawn the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose. Rule 6-B provides that the copies of the judgment shall be made available immediately after pronouncement of judgment for preferring an appeal. Rule 7 provides that the decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn upon in accordance with the judgment, he shall sign the decree. 9. Order 41 Rule 1 CPC provides the form of appeal and what to accompany memorandum and contents of memorandum. By the High Court amendments of Allahabad Rule 1 has been amended inserting explanation after the proviso to Sub-rule (1) of Rule 1 and proviso to sub-rule (2) of Rule 1. Thus Rule 1 Order 41 as amended by the High Court amendment Allahabad is extracted here-in-below:- "1. Form of appeal What to accompany memorandum. —(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the 1 [Judgment]. [Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.] (2) Contents of memorandum. —The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. —The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. 1 [(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]" "ALLAHABAD. (1) In sub-rule (1) of Rule 1, after the proviso the following Explanation shall be inserted, namely: "Explanation.- The copy of the decree referred to in sub-rule (1) of Rule 1 above shall include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of Rule 6-A" (Noti. No.345-VII-d-134, dt.8-8.1994, w.e.f.22.10.1994) (2) Add the following proviso to sub-rule (2) of Rule 1: "Provided that the Court may, for sufficient reasons, accept a memorandum of appeal without a copy of the decree appealed from if the counsel for the appellant certifies that the copy has been applied for and has not yet been issued, subject to the copy being filed subsequently within the time granted by the Court." (13-12-1969). [Note.- This amendment shall come into force with effect from the date of its publication in the Uttar Pradesh Gazette.]" 10. The aforesaid Rule 1 of Order 41 provides that the memorandum shall be accompanied by a copy of the judgment. Explanation added to sub-rule(1) of Rule 1 by the High Court Amendment, Allahabad provides that the copy of the decree referred to in sub-rule (1) of Rule 1 shall include a deemed decree as provided in Order 20 in clause (b) in sub-rule (2) of Rule 6-A. The proviso added to sub-rule (2) of Rule 1 of Order 41 by the High Court amendment, Allahabad provides that the court may, for sufficient reasons, accept a memorandum of appeal without a copy of the decree appealed from if the counsel for the appellant certifies that the copy has been applied for and has not yet been issued, subject to the copy being filed subsequently within the time granted by the Court. 11. 11. In view of above, the appeal can be filed accompanying with a copy of the judgment passed by the trial court and in view of Order 41 Rule 1(1) CPC, the judgment shall be treated as the decree for the purpose of Rule 1 of Order 41 for filing an appeal, but as soon as the decree is drawn, the judgment shall cease to have effect of a decree for the purposes of execution or for any other purpose. As per the proviso added to sub-rule (2) of Order 41 CPC, which is in regard to the contents of memorandum, the court may, for sufficient reasons, accept a memorandum of appeal without a copy of the decree appealed from if the counsel for the appellant certifies that the copy has been applied for and has not yet been issued, which would be subject to the copy filed subsequently on being issued. Therefore an appeal can be filed with the copy of the judgment, if the decree has not been issued and it shall be deemed to be a decree for the purposes of appeal, till the decree is issued as it contains only the contents of the judgment by the concerned court. However once a decree is drawn it shall cease to have effect of a decree for the purposes of execution or for any other purpose. Therefore even after the decree is drawn, it can not be said that if it is not filed, the appellate court will have no jurisdiction to decide the appeal. Even otherwise, admittedly the decree was not drawn during pendency of appeal and even if the decree is drawn subsequently, it cannot affect the merit of appeal or of the case as it shall have the effect of the decree for the purpose of execution or any other purpose. Even otherwise the appellants, who had filed the appeal before the lower appellate court can not take benefit of their laxity or wrong of not filing the decree. Thus on this technical ground the decree passed by the court's below cannot be reversed, modified or the case remanded as it does not affect the merits of case in view of Section 99 of Civil Procedure Code. 12. Thus on this technical ground the decree passed by the court's below cannot be reversed, modified or the case remanded as it does not affect the merits of case in view of Section 99 of Civil Procedure Code. 12. There is one more reason for non availability of the aforesaid technical ground of decree to the appellant is that if such ground is permitted to be taken then the appellants may get the appeal filed annexing a copy of the judgment and get the record of the trial court summoned immediately after receipt of the copy of the judgment, which is to be issued immediately after pronouncement of the judgment for preferring an appeal so that the decree may not be prepared and in case of adverse decision, the ground may be set up in this regard. Thus this ground is misconceived and not tenable. 13. In view of above, this court does not find any illegality or error in the impugned judgment and decrees passed by the courts below. No substantial question of law arises in this appeal. The Second Appeal has been filed on misconceived and baseless grounds. 14. The Second Appeal is, accordingly, dismissed .