# Defendants v. Prashu Ram Pandey and others

- **Citation:** (2009) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-12-05
- **Case number:** Second Appeal No. 778 of 2008
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendants-v-prashu-ram-pandey-and-others-41292
- **Pages:** 7

## Headnote

Code of Civil Procedure-Section 2 (2), 2
(9), 100 Order 41 rule 3 c Order 43 Rule
1 (w)-Second Appeal-challenging the
order passed by 1st Appellate Court
dismissing
appeal
as
abated
under
section 5 (2) of U.P. Consolidation of
Holding Act-by review apart from word
'Appeal' suit also included-such order not
within the meaning of judgement and
Decree-held-Second
Appeal
not
maintainable-except F.A.F.O. under order
43 rule 1 (4).

Held: Para 24 & 26

After testing the requirements of a
judgment and decree as contained under
the relevant provisions of C.P.C. since I
have held that so called judgment and
decree dated 29.03.2008 do not contain
any ingredients of the judgment and
decree and the Second Appeal can only
be filed against the judgment and decree
of the lower appellate court, therefore, I
am of the considered opinion that
Second
Appeal
is
not
maintainable
against the so called judgment and
decree dated 29.3.2008

The Code of Civil Procedure is self
contained code and there is a remedy for
the appellant for filing an appeal from
such order under Order 43 Rule 1 (w) of
the C.P.C. Therefore, the appellant can
file First Appeal From Orders under Order
43 Rule 1 (w) of the C.P.C.
Case law discussed:
AIR 1960 SC 941, AIR 1945 Alld. 266, AIR,
2001,
Supreme
Court,
279,
AIR
2004
Karnataka 75

## Text

1 All] Mahendra Dhar Dubey and others V. Prashu Ram Pandey and others
1
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2008

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Second Appeal No. 778 of 2008

Mahendra Dhar Dubey (Dead) and others

...Defendants-Appellants
Versus
Prashu Ram Pandey and others

 ...Plaintiffs Respondents

Counsel for the Appellants:
Sri Sankatha Rai
Sri Dr. Vinod Kumar Rai
Sri Vijay Kumar Rai
Sri Santosh Kumar Mishra

Counsel for the Respondents:
Sri V.D. Ojha
Sri S.A. Lari

Code of Civil Procedure-Section 2 (2), 2
(9), 100 Order 41 rule 3 c Order 43 Rule
1 (w)-Second Appeal-challenging the
order passed by 1st Appellate Court
dismissing
appeal
as
abated
under
section 5 (2) of U.P. Consolidation of
Holding Act-by review apart from word
'Appeal' suit also included-such order not
within the meaning of judgement and
Decree-held-Second
Appeal
not
maintainable-except F.A.F.O. under order
43 rule 1 (4).

Held: Para 24 & 26

After testing the requirements of a
judgment and decree as contained under
the relevant provisions of C.P.C. since I
have held that so called judgment and
decree dated 29.03.2008 do not contain
any ingredients of the judgment and
decree and the Second Appeal can only
be filed against the judgment and decree
of the lower appellate court, therefore, I
am of the considered opinion that
Second
Appeal
is
not
maintainable
against the so called judgment and
decree dated 29.3.2008

The Code of Civil Procedure is self
contained code and there is a remedy for
the appellant for filing an appeal from
such order under Order 43 Rule 1 (w) of
the C.P.C. Therefore, the appellant can
file First Appeal From Orders under Order
43 Rule 1 (w) of the C.P.C.
Case law discussed:
AIR 1960 SC 941, AIR 1945 Alld. 266, AIR,
2001,
Supreme
Court,
279,
AIR
2004
Karnataka 75

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. This Second Appeal has been
filed against the judgment and decree
dated 29.3.2008 passed by Additional
District Judge, Court No.2, Deoria in
appeal no. 8 of 1976 Parashuram Pandey
and others vs Mahendra Dhar Dubey and
others and also against the judgment and
decree dated 28.5.2008 passed by the
same court in review petition No. 6 of
2008 Parashuram Pandey and others vs.
Rajendra and others by which the original
suit no. 433 of 1972 has been abated
under Section 5 (2) of the U.P.
Consolidation of Holdings Act.

2. The Stamp Reporter has raised
two objections namely:-

(1) If the limitation for filing Second
Appeal is counted from the date of the
order of review then the appeal is well
within time and if the limitation is
counted from the date of original decree
passed by the Appellate Court then the
appeal is barred by time.
(2) The
Second
Appeal
is
not
maintainable against the order passed in
Review Application.
2 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
3. Sri V.D. Ojha, learned counsel
who has filed caveat on behalf of the
plaintiffs respondents has also raised the
same
preliminary
objection.
In
his
submissions in case the appeal is treated
against the order dated 28.05.2008 passed
on the review application then Second
Appeal is not maintainable and the
remedy is to file miscellaneous appeal
under Order 43 Rule 1 (W) of the Code of
Civil Procedure (in short C.P.C.) and in
case, it is treated an appeal against the
judgment and decree dated 29.03.2008
then the appeal is barred by time. Since
there is no application under Section 5 of
the Indian Limitation Act for condoning
the delay in filing Second Appeal,
therefore, it should be dismissed as barred
by time. He has further submitted that
both the orders cannot be challenged
together in one Appeal.

4. Sri Sankatha Rai, learned counsel
for the appellants has submitted before the
Court that the limitation will be counted
from the date of the last order passed in
the review application and not from the
date
of
original
judgment
dated
29.03.2008. In his submission the Second
Appeal is well within time and it is
maintainable.

5. I have heard Sri Sankatha Rai,
learned counsel for the appellants, Sri
V.D.Ojha and Sri S.A. Lari, learned
counsel for the respondents.

6. This case has got a chequered
history. The respondents plaintiffs have
filed a suit for cancellation of the sale
deed on 22.4.1972 before the IIIrd
Additional Munsif, Deoria. In the said suit
the defendants appellants have filed an
application for abating the suit under
Section 5 (2) of U.P. Consolidation of
Holdings
Act
on
08.01.1975.
The
plaintiffs respondents have raised an
objection that the case should not abate
before the Consolidation Authority, as it
is the suit for cancellation of the sale deed
on voidable ground. The application of
the defendants appellants was rejected by
the Trial Court on 30.5.1975. This order
has never been challenged.

7. However, later on after contest
the suit was dismissed by the Trial Court
on 27.11.1975. Aggrieved from that order
the plaintiffs- respondents have filed an
appeal. The appeal was also dismissed by
the IV th Additional District Judge,
Deoria on 20.09.1977. It appears that the
aforesaid appeal was decided on merit in
absence of the plaintiffs-respondents.

8. The plaintiffs-respondents have
filed a Second Appeal challenging the
judgment and decree of the lower
appellate court dated 20.09.1977 before
the
High
Court.
This
appeal
was
numbered as Second Appeal No. 2646 of
1977 and was allowed by this Court vide
judgment and order dated 28.10.2005
holding that in view of the explanation to
Order 41 Rule 17 (1) of C.P.C., in
absence of appellant counsel the appeal
could not be decided on merit. Hence the
judgment and decree dated 20.09.1977
was set aside and the matter was
remanded back to the lower appellate
court for deciding the case afresh.

9. After the case was remanded an
application was filed by the plaintiffsrespondents under Order 6 Rule 17 of the
C.P.C. before learned Additional District
Judge
Court
No.16,
Deoria
for
amendment of the plaint by adding para
15-A to the effect that village has already
been de notified under Section 52 of
1 All] Mahendra Dhar Dubey and others V. Prashu Ram Pandey and others
3
Consolidation of Holdings Act, therefore,
the suit is barred by Section 49 of
Consolidation of Holdings Act. This was
vehemently opposed by the appellant,
defendant, however, the appeal was
abated by the lower appellate court on
29.3.2008 under Section 5(2) of the U.P.
Consolidation of Holdings Act.

10.

Thereafter
the
plaintiffs
respondents
have
filed
a
review
application for correcting the error
apparent on the record on the ground that
if the appeal has abated the suit stands
abated
because
the
appeal
is
the
continuation of the suit. This error was
corrected and the review application was
allowed vide order dated 28.5.2008.

11. Sri Sankatha Rai, learned
counsel for the appellant has submitted
before the Court that the impugned
judgment and decree dated 29.3.2008 is
barred by principle of res judica as once
defendants appellants application for
abating the suit under Section 5 (2) of the
U.P. Consolidation of Holdings Act has
been rejected then on the same set of facts
and for the same reason the impugned
order could not be passed. In support of
his submissions he has placed reliance
upon the judgment of Apex Court
reported in AIR 1960 SC 941 Satya
Narain Ghosal and others Vs Deo Raji
Devi and others.

12.

Apart
from
the
above
submissions learned counsel for the
appellant
has
made
many
other
submissions but that will be discussed
later on if the occasion so arises as this
Court at present intends to decide the
preliminary objections raised by the
Stamp Reporter and the learned counsel
for the respondents with regard to the
maintainability of Second Appeal.

13. As noted above, two objections
are raised by the Stamp Reporter one with
regard to the limitation and another with
regard to maintainability of Second
Appeal. This Court desires to deal with
the second objection i.e., with regard to
maintainability of Second Appeal first
and in case this point is decided in
affirmative then there will be no occasion
to decide the objection no.1.

Second Objection of the Stamp
Report as well as Counsel for the
respondents.

14. For deciding this point it will be
essential to look into the substantive
provisions meant for filing of Second
Appeal as contained under Section 100 as
well as Orders 41 and 42 of the C.P.C.
which talks about the appeal from original
as well as from appellate decrees. Section
100 as well as Order 42 of the C.P.C. are
reproduced below:-

Section 100. Second appeal-(1) Save
as otherwise expressly provided in the
body of this Code or by any other law for
the time being in force, an appeal shall lie
to the High Court from every decree
passed in appeal by any Court subordinate
to the High Court, if the High Court is
satisfied
that
the
case
involves
a
substantial question of law.
(2) An appeal may lie under this
section from an appellate decree passed
ex parte.
(3) In an appeal under this section,
the memorandum of appeal shall precisely
state the substantial question of law
involved in the appeal.
4 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(4) Where the High Court is satisfied
that a substantial question of law is
involved in any case, it shall formulate
that question.
(5) The appeal shall be heard on the
question so formulated and the respondent
shall, at the hearing of the appeal, be
allowed to argue that the case does not
involve such question:
Provided that nothing in this subsection shall be deemed to take away or
abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any
other substantial question of law, not
formulated by it, if it is satisfied that the
case involves such question.

Order XLII
" 1. The rule of Order XLI and Order
XLIA shall apply, so far as may be, to
appeals from Appellate decrees, subject to
the following proviso:

Every memorandum of appeal from an
appellate decree shall be accompanied by
a copy of the decree appealed from unless
the Court sees fit to dispense with either
or all of them-

(1) a copy of the judgment on which the
said decree is found,
(2) the judgment of the Court of the first
instance, and
(3) a copy of the finding of the Civil or
the Revenue Court, as the case may
be, where an issue was remitted to
such Court for decision."

15. From the bare perusal of Section
100 C.P.C. it is apparent that Second
Appeal shall lie to the High Court from
every decree passed in appeal by any
court subordinate to the High Court and
while filing Second Appeal copy of the
judgment on which the decree is found
has to be appended. Now this has to be
looked into what is judgment and what is
the decree under the C.P.C., for the
purpose of filing Second Appeal. The
judgment has been defined under Section
2 (9) of the C.P.C. and what the judgment
should contain has been detailed under
Order 41 Rule 32 of the C.P.C. both the
provisions are reproduced below:

Sec.2 (9) "Judgment" means the
statement given by the Judge on the
grounds of a decree or order.

Order 41 Rule 32 deals that What
judgment may direct- The judgment
may be for confirming, varying or
reversing the decree from which the
appeal is preferred, or, if the parties to the
appeal agree as to the form which the
decree in appeal shall take, or as to the
order to be made in appeal, the Appellate
Court may pass a decree or make an order
accordingly.

16. From the bare perusal of the
meaning of the judgment as contained
under Section 2 (9) of the C.P.C. and
Order 41 Rule 32 of the same code, it
transpires that judgment may be for
confirming varying or reversing the
decree from which the appeal is preferred.
Otherwise also the judgment must contain
the pleadings of the parties, evidence led
and the conclusion drawn thereon.

17. Now the question would arise
what is the decree. The word 'decree' has
been defined under Section 2 (2) of the
C.P.C. which is reproduced below:

Sec. 2 (2)- "decree" means the
formal expression of an adjudication
which, so far as regards the court
expressing it, conclusively determines
1 All] Mahendra Dhar Dubey and others V. Prashu Ram Pandey and others
5
rights of the parties with regard to all or
any of the matters in controversy in the
suit and may be either preliminary or
final. It shall be deemed to include the
rejection of a plaint and the determination
of any question within Section 144, but
shall not include-

(a) any adjudication from which an
appeal lies as an appeal from an order, or
(b) any order of dismissal for default.

Explanation:- A decree is preliminary
when further proceedings have to be taken
before the suit can be completely disposed
of. It is final when such adjudication
completely disposes of the suit. It may be
partly preliminary and partly final.

18. In order that decision of a Court
should become a decree there must be an
adjudication
in
a
suit
and
such
adjudication must have determined the
rights of the parties with regard to all or
any of the matters in controversy in the
suit and such determination must be of a
conclusive nature. For that purpose the
operative portion of the judgment dated
29.03.2008 passed in Appeal No. 8 of
1976 is required to be looked into which
is reproduced below:

"pwWfd m0 iz0 tksr pdcUnh vf/kfu;e dh /kkjk&5 (2) ds
vUrxZr ;g vihy mi'kfer gks pqdh gS bl dkj.k vihy esa
fufgr vU; fcUnqvksa ij xq.k&nks"k ds vk/kkj ij fopkj fd;s
tkus dh dksbZ vko';drk ugha gS A

vkns'k
orZeku vihy mRrj izns'k tksr pdcUnh vf/kfu;e dh /kkjk
&5 1⁄421⁄2 ds vUrxZr iz'kfer gks pqdh gS blfy;s nkf[ky
nQ~rj dh tk; A"

19. From the perusal of the operative
portion of the so called judgment dated
29.03.2008 and the conclusion drawn by
the Additional District Judge Court No.2,
Deoria, it is apparent that this do not
contain either contents of judgment or
decree as defined under Section 2 (9) read
with Order 41 Rule 32 and 2 (2) of the
C.P.C. as nothing has been adjudicated by
the lower appellate court on merit of the
case. The lower appellate court has only
abated the case before the consolidation
authorities where denovo proceeding has
to be started by the consolidation
authorities.

20. In view of the definition of the
judgment and decree, the court has to
examine whether the judgment impugned
in the present Second Appeal falls under
the category of judgment & decree. The
Full Bench of Allahabad High Court, as
reported in AIR 1945 Alld. 266 (Mt.
Chauli alias Subnaddra Devi Vs Mt.
Meghoo & Ors), has held as under:

"A decree is a formal document
which must be drawn up in accordance
with some decision of a Court. A finding
in itself is not a decree."

21. The Apex Court in the case of
Ratansingh Vs. Vijaysingh and others
reported in AIR, 2001, Supreme Court,
279 has held as under:

"In order that decision of a Court
should become a decree there must be an
adjudication
in
a
suit
and
such
adjudication must have determined the
rights of the parties with regard to all or
any of the matters in controversy in the
suit and such determination must be of a
conclusive nature. If those parameters are
to be applied then rejection of application
for condonation of delay will not amount
to a decree. Consequently, dismissal of an
appeal as time barred is also not a decree.
6 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
We are aware that some decisions of the
High Courts have taken the view that
even rejecting an appeal on the ground
that it was presented out of time is a
decree within the meaning of the said
definition. We are also aware of the
contrary decisions rendered by High
Courts on the same point. Dealing with
some of those decisions a Full Bench of
the Calcutta High Court (S.P. Mitra, CJ,
Sabyasachi Mukherjee, J. (as he then was)
and S.K. Datta, J) has held in Mamuda
Khateen Vs. Beniyan Bibi, AIR 1976 Cal.
415 that " if the application under Section
5 of the Limitation Act was rejected the
resultant order cannot be decree and the
order rejecting the memorandum of
appeal is merely an incidental order." The
reasoning of the Full Bench was that
when an appeal is barred by limitation the
appeal cannot be admitted at all until the
application under Section 5 of the
Limitation Act is allowed and until then
the appeal petition, even if filed, will
remain in limbo. If the application is
dismissed the appeal petition becomes
otiose.
The
order
rejecting
the
memorandum
of
appeal
in
such
circumstances is merely an incidental
order. We have no doubt that the
decisions rendered by the High Courts
holding the contrary view do not lay
down the correct principle of law."

22. Similar view has been taken by
the Full Bench of Karnataka High Court
in the case of Commissioner Hubli-
Dharwad Municipal Corporation vs
Shrishail and others reported in AIR
2004 Karnataka 75.

23. Now if the so called judgment
and decree in appeal is tested on those
parameters as contained in Section 100,
Sections 2(2),2(9), Order XLI Rule 32
and Order XLII of the C.P.C. then it will
transpire that the ingredients of the
judgment and decree as contained under
the relevant provisions of the C.P.C., are
not satisfied. Therefore, the so called
judgment and decree appended to this
Second Appeal cannot be termed as
judgment and decree. I am of the view
that decree dated 29.03.08 as appended in
Second Appeal could not be drawn as it
do not contain any ingredients of the
decree. It is well known that there can be
no roof without any wall/pillar, likewise
there can be no decree without having the
essence of the judgment as contained
under Section 2(9) read with Order 41
Rule 32 of the C.P.C.

24. After testing the requirements of
a judgment and decree as contained under
the relevant provisions of C.P.C. since I
have held that so called judgment and
decree dated 29.03.2008 do not contain
any ingredients of the judgment and
decree and the Second Appeal can only be
filed against the judgment and decree of
the lower appellate court, therefore, I am
of the considered opinion that Second
Appeal is not maintainable against the so
called
judgment
and
decree
dated
29.3.2008

25. Now the question remains what
will be the remedy available to the
appellant
against
the
order
dated
28.5.2008 passed in review application.
The lower appellate court while passing
the impugned order dated 29.3.2008 has
held that nothing has been decided on
merit of the case and only appeal is being
abated under Section 5 (2) of the U.P.
Consolidation of Holdings Act. Now the
question would be what is Appeal? It is
well settled that the Appeal is the creature
of the statute and it is deemed as
1 All] State of U.P. and others V. Gaya Ram
7
continuation of the suit proceeding. The
lower appellate court on the review
application
of
the
appellant
has
modified/reviewed the earlier order dated
29.3.2008 to the extent of mentioning 'the
suit' instead of 'Appeal' in the order dated
28.5.2008 and it is well settled that the
appeal is the continuation of the suit,
therefore,
there
is
no
substantial
difference between the earlier order dated
29.3.2008 and the subsequent order dated
28.5.2008 passed by lower appellate
court. In fact when the review application
has been allowed the original order dated
29.3.2008 has merged in the subsequent
order passed in the review application
dated 28.5.2008. Now the effect will be
that at present the suit has abated under
Section 5 (2) of the U.P. Consolidation of
Holdings Act. Since the order for abating
the suit has been passed in the review
application and the application has been
allowed under Rule 4 Order 47 of the
C.P.C., therefore, the question would arise
that what is the remedy available to the
appellant to challenge the order dated
28.5.2008
passed
in
the
Review
application.

26. The Code of Civil Procedure is
self contained code and there is a remedy
for the appellant for filing an appeal from
such order under Order 43 Rule 1 (w) of
the C.P.C. Therefore, the appellant can
file First Appeal From Orders under
Order 43 Rule 1 (w) of the C.P.C.

27. The Court has taken a view that
no Second Appeal is maintainable against
the so called judgment and decree dated
29.3.2008, therefore, there is no occasion
to decide the objection no.1 as reported by
the Stamp Reporter with regard to the
limitation for filing Second Appeal. The
appellant is given liberty to file an
application for conversion of this Second
Appeal into F.A.F.O. In case such
application is filed by the appellant within
a week from the date of delivery of the
order, the matter may be placed as fresh
before the appropriate court dealing with
First Appeal From Orders.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 1858 of 2008

State of U.P. and others
...Appellants
Versus
Gaya Ram

 ...Respondents

Counsel for the Appellants:
Sri C.K. Rai

Counsel for the Respondents:
Sri G.P. Gupta

Basic Education Regulation_Regulation44,
46-Retirement
benefits-petitioner
working as Class IV-employee in the
institution run by Basic Shiksha Parishad
retired after completing 9 years serviceclaimed
retirement
benefit-learned
Single Judge following the judgment of
Hans Raj Pandey Case allowed the
petition-held-Hans Raj Pandey being
appointed as fixed salary basis wrongly
counted for pension purpose-hence no
good law-in regulation except regular or
temporary appointment no provision of
fixed salary-hence working of petitioner
prior
to
regularization
can
not
be
counted for pension purposes-However
petitioner may approach before state
government for exemption of period
which fall short in 10 years.

Held: Para 15