# Girja Shankar & Ors v. Ram Sajeevan & Ors

- **Citation:** (2025) 1 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-30
- **Case number:** Second Appeal No. 23 of 2025
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girja-shankar-ors-v-ram-sajeevan-ors-52957
- **Pages:** 6

## Headnote

A. Civil Law - Civil Procedure Code,1908 -
Section 96 - Order XX R. 6 & 7 - Order XLI
- Rule 1 - First Appeal - Maintainability -
Only Judgment was filed, decree could not
be filed - Filing and hearing of the appeal
- Permissibility - Held, 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. (Para
11)

Second Appeal dismissed. (E-1)

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES
and judicial functions. In addition to that the
statement recorded under Section 164
Cr.P.C. is never taken out of the judicial
record nor it is handed over to the
Investigating Officer or any other police
officer. The copy of the statement is allowed
to be copied in the relevant part of the case
dairy. Thus, the recorded statement under
Section 164 Cr.P.C. assumes the part of the
judicial record of that particular case and, as
such, it is the part of the case. This is the
reason that we have pointed out that in spite
of being a statement of a witness or any other
interested person during the course of
investigation, the recorded statement under
Section 164 Cr.P.C. could not, strictu sensu,
be said to be a mere statement during
investigation which could be treated as part
of the case dairy. It could never be put at par
with a statement under Section 161 Cr.P.C.
and as such it could never be said to be a
part of case dairy."

18. The statement made by the
prosecutrix/victim
under
Section
164
Cr.P.C. before the Magistrate stands on a
high pedestal and a sanctity is attached on
such statement recorded during the course
of investigation, than that of her statement
recorded under Section 161 of the Code by
the Investigating Officer.

19. With foregoing discussion this
court
does
not
find
any
illegality,
irregularity or perversity in the impugned
order passed by learned Magistrate,
whereby the final report filed by the police
after investigation in the case infavour of
accused persons placing reliance on
statement of the prosecutrix recorded
under Section 164 Cr.P.C. as well as
affidavits filed by father and uncle of the
victim, has been accepted and protest
petition filed by the prosecutrix has been
dismissed.

20. The learned court below has made an
observation that when she was presented for
medico legal examination. She refused to
undergo medico legal examination. She has
been changing her stand at different stages. No
presumption can be drawn that statement of
prosecutrix recorded by Magistrate before the
court suffers from falsehood or external
pressure.

21. The impugned order is within bounds
of law and no illegality, irregularity or
perversity is found therein. The revision is
devoid of merit and deserves to be dismissed.

22. However, it is pertinent to observe that
even after acceptance of final report and
dismissal of protest petition filed by the defacto
complainant or prosecutrix are at liberty to file
criminal complaint under Chapter 15 of Code
of Criminal Procedure before the competent
court, if they think fit and if such complaint is
made before the court below, the same will be
dealtwith in accordance with law, as no
embargo is created under law on filing of
criminal complaint only due to fact that revision
preferred against impugned order passed by
learned Magistrate has been dismissed by this
Court.

23. The revision is dismissed with
above observations.
----------
(2025) 1 ILRA 164
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.01.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 23 of 2025

Girja Shankar & Ors. ...Appellants
Versus
Ram Sajeevan & Ors. ...Respondents
1 All. Girja Shankar & Ors. Vs. Ram Sajeevan & Ors.
165
Counsel for the Appellants:
Ved Prakash Shukla, Tarun Kumar Pandey

Counsel for the Respondents:

A. Civil Law - Civil Procedure Code,1908 -
Section 96 - Order XX R. 6 & 7 - Order XLI
- Rule 1 - First Appeal - Maintainability -
Only Judgment was filed, decree could not
be filed - Filing and hearing of the appeal
- Permissibility - Held, 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. (Para
11)

Second Appeal dismissed. (E-1)

(Delivered by Hon'ble 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. 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
166 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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-inbelow:-

"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.

(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
1 All. Girja Shankar & Ors. Vs. Ram Sajeevan & Ors.
167
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. 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-inbelow:-

"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. 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
168 INDIAN LAW REPORTS ALLAHABAD SERIES
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 subrule (2) of Rule 6-A" (Noti. No.345-VII-d134, 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." (1312-1969). [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. 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
1 All. Surya Kumar Tripathi Deceased & Ors. Vs. Ram Pal
169
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. 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.
----------
(2025) 1 ILRA 169
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.01.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 151 of 2016

Surya Kumar Tripathi Deceased & Ors.
 ...Appellants
Versus
Ram Pal ...Respondent

Counsel for the Appellants:
Madhav Chaturvedi

Counsel for the Respondent:
Mayank Pandey, Ashok Shukla, Brijesh
Kumar, Nirmal Singh Yadav, Prince Kumar,
Raj Kumar Singh, Raj Kumar Yadav,
Shailendra Kumar Singh, Shyam Kishor

Civil Law - Civil Procedure Code, 1908 -
Section 100 - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Section 229-B &
331- Second Appeal - against judgments and
decrees passed by the lower courts, - on the
ground that suit was barred by Section 331 of
the Act, 1950 - plaintiff-respondent alleged that
on the basis of a forged unregistered Power of
Attorney - a Sale deed was executed - FIR -
Suit - for cancellation of Sale deed - Defendantappellant objected that Suit was barred by
Section 331 of Act, 1950, as the name of the
defendant-respondents was recorded in the
revenue records - Suit was allowed & decreed -
Civil Appeal - allowed & decreed - Second
Appeal - Court finds that, - the plaintiffrespondent filed the suit for cancellation of the
sale deed on the grounds of fraud, alleging that
the Power of Attorney was void and the sale
deed was executed based on this fraudulent
document - The execution of the alleged
unregistered Power of Attorney also has been
denied by the plaintiff-respondent - Hon'ble
Supreme court held that no right, title or
interest can be transferred with respect to
immovable properties on the basis of an
unregistered agreement to sell or on the basis
of an unregistered Power of Attorney, which has
been found fraudulent, so it cannot be said that
suit was not maintainable - held, Plaintiffrespondent as bhumidhar of the land in dispute
can file a suit for cancellation of sale deed
before the Civil Court on the ground of Fraud
and misrepresentation as revenue court does
not have jurisdiction for granting such relief of
cancellation
of
sale
deed
and
in
such
circumstances no declaration of title is required
- hence, there is no illegality or error in the
impugned judgments and decrees - accordingly,
second appeal is dismissed. (Para - 15, 17, 18)