# GANGA BAI v. VIJAY KUMAR & ORS . . April 9, 1974

- **Citation:** [1974] 3 S.C.R. 882
- **Court:** Supreme Court of India
- **Decided:** 1974-04-09
- **Bench:** M. H. Beg, Y. V. CliANDRACHUD
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ganga-bai-v-vijay-kumar-ors-april-9-1974-6106
- **Pages:** 9

## Headnote

C.P.C.-Anrendnrent of the ~fe1110 of Appeal after 7} years
lvitho1.et
any
application of condonatio11 of delay or good cause sho1vn-Whether properAppeal againrt a 111ere /illding of fact-iV/iether niaintainable.
·
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In 1953~ defendant 1 executed on behalf of himSelf and his minor son,
defendant 2, a deed of mortgage in favour of the plaintiff. Deft. 3 ls also a son
of deft; 1 who was born after the mortgage deed. In 1956, a regd. deed of partition \\'as executed amongst the defendants under which the mortgaged property·
..._
\Va'> allotted to the share of <lefts 2 & 3.
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Thereafter, the mortgagee filed a civil suit to ·enforce the niortgage and the
trial court passed a preliminary decree for sale of deft. l's interest in the mortgaged property. It held that part of the consideration for the mortgage was not
su.pported by legaL necessity and the balance of the debt incurred was tainted
'\\-ith immorality. Therefore; the debt was. held not binding on the· one half
share of deft. 2 in the mortgaged property .. As regards the partition, the trial
court held that it was a colourable transaction effected to delay or defeit the
creditors. ·
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Being a·ggrieved, pltf. filed an appeal (40/59) in the I-Ugh Court. Deft. 1 &
2 against '\Vhom the suit was dismissed, also filed an-appeal (72/59) apinst the
tir:zdi'ng of the trial court that the partition \•las a colourable transaction.
During the pendency of these 2 appeals, the preliminary decree was made
final by the trial court and in 1960, the plaintiff purchased with the permission of
the court. a joint half share of the mortga£;ed property in full satisfaction of his
decree. Thereafter, the auction sale \Vas confirmed and the ~laintiff '\Vas put in
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joint possession of the property. -
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Thereafter, the appeals filed by the- plaintiff and defendants 2 and 3 came up
for hearing and while the appeals were part-hard, defts 2 & 3 applied on August
2, 1966 (nearly 71; years after filing the appeals). applied for amendment of their
~femorandum of appeal in first appeal No. 72/59 and sought permission of the
I1igh Court to challenge the preliminary decree passed by the trial COurt. The
plaintiff opposed that amendment and applied that she did not desire to prose·
cute first appeal No. 40/59 filed by her.
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The High Court did not pass any orders either on the application for amend·
n1cnt or the plaintiff's appeal, but adjourned the hearing of the appeals for 3
mouths to enable defendants to pay the am_ount due under the preliminary decree.
Accordingly the defendants deposited the money towards the satisfaction of the
preliminary decree .
. 1\fter about 2 years, another dh·ision bench of the High Court, alJov.·ed the
amendments of the defendants' iremo of Appeal in .1\ppeal No. 72/59 ancl
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allow~d time to the 'defendants to pay the deficit Court fee. which they paid. The
High Court,"then took the 2 appeals for hearing and dismissed appeal No. 40/59
for non-prosecution and confirmed the findings of the trial court in favour of the
defendants.
·
As regards appeal. No. 72/59, the High C.ourt held that in vfew of Order 41,
Rule 2 C.P.C., it '\Vas open to the de_fendants. '\Vith the leave of the court, to urge
additional grounds without amending the Pwiemo of Appeal and therefore, the
objection raised by the plaintiff that amendment should not be allowed, cannot
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l:io upheld'. 1.be High Court further held that the defendant-." appeal was com~
pctent :l.nd they had the righ,t to reeeem the mortgap:e.
On the merits. the Hi~b
Cburt held that the partition '\\'as real and genuine. In the result. the High Court
:set aside the preliminary decree as also the fmal deme- a11d with it the auction
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GA.:<:GA BAI v. VJJAY KUMAR (Chmuf!'.aclzud, I.)
883
A
sale in favour of 111~ plainliff. The High Court passed a
fresh preliminary
Jecree under order 34, Rule 4 C.P.C .• directing that that the plaintiff was entitled
to recover Rs. 34,~8~/- and odd .and directed the defendants to pay the entire

## Text

882
GANGA BAI
v.
VIJAY KUMAR & ORS .
. April 9, 1974.
[M. H. BEG AND Y. V. CliANDRACHUD, JJ.]
C.P.C.-Anrendnrent of the ~fe1110 of Appeal after 7} years
lvitho1.et
any
application of condonatio11 of delay or good cause sho1vn-Whether properAppeal againrt a 111ere /illding of fact-iV/iether niaintainable.
·
-
.
A
&
\
In 1953~ defendant 1 executed on behalf of himSelf and his minor son,
defendant 2, a deed of mortgage in favour of the plaintiff. Deft. 3 ls also a son
of deft; 1 who was born after the mortgage deed. In 1956, a regd. deed of partition \\'as executed amongst the defendants under which the mortgaged property·
..._
\Va'> allotted to the share of <lefts 2 & 3.
C
Thereafter, the mortgagee filed a civil suit to ·enforce the niortgage and the
trial court passed a preliminary decree for sale of deft. l's interest in the mortgaged property. It held that part of the consideration for the mortgage was not
su.pported by legaL necessity and the balance of the debt incurred was tainted
'\\-ith immorality. Therefore; the debt was. held not binding on the· one half
share of deft. 2 in the mortgaged property .. As regards the partition, the trial
court held that it was a colourable transaction effected to delay or defeit the
creditors. ·
·
D
Being a·ggrieved, pltf. filed an appeal (40/59) in the I-Ugh Court. Deft. 1 &
2 against '\Vhom the suit was dismissed, also filed an-appeal (72/59) apinst the
tir:zdi'ng of the trial court that the partition \•las a colourable transaction.
During the pendency of these 2 appeals, the preliminary decree was made
final by the trial court and in 1960, the plaintiff purchased with the permission of
the court. a joint half share of the mortga£;ed property in full satisfaction of his
decree. Thereafter, the auction sale \Vas confirmed and the ~laintiff '\Vas put in
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joint possession of the property. -
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Thereafter, the appeals filed by the- plaintiff and defendants 2 and 3 came up
for hearing and while the appeals were part-hard, defts 2 & 3 applied on August
2, 1966 (nearly 71; years after filing the appeals). applied for amendment of their
~femorandum of appeal in first appeal No. 72/59 and sought permission of the
I1igh Court to challenge the preliminary decree passed by the trial COurt. The
plaintiff opposed that amendment and applied that she did not desire to prose·
cute first appeal No. 40/59 filed by her.
F
The High Court did not pass any orders either on the application for amend·
n1cnt or the plaintiff's appeal, but adjourned the hearing of the appeals for 3
mouths to enable defendants to pay the am_ount due under the preliminary decree.
Accordingly the defendants deposited the money towards the satisfaction of the
preliminary decree .
. 1\fter about 2 years, another dh·ision bench of the High Court, alJov.·ed the
amendments of the defendants' iremo of Appeal in .1\ppeal No. 72/59 ancl
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allow~d time to the 'defendants to pay the deficit Court fee. which they paid. The
High Court,"then took the 2 appeals for hearing and dismissed appeal No. 40/59
for non-prosecution and confirmed the findings of the trial court in favour of the
defendants.
·
As regards appeal. No. 72/59, the High C.ourt held that in vfew of Order 41,
Rule 2 C.P.C., it '\Vas open to the de_fendants. '\Vith the leave of the court, to urge
additional grounds without amending the Pwiemo of Appeal and therefore, the
objection raised by the plaintiff that amendment should not be allowed, cannot
I (
l:io upheld'. 1.be High Court further held that the defendant-." appeal was com~
pctent :l.nd they had the righ,t to reeeem the mortgap:e.
On the merits. the Hi~b
Cburt held that the partition '\\'as real and genuine. In the result. the High Court
:set aside the preliminary decree as also the fmal deme- a11d with it the auction
j
-.
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GA.:<:GA BAI v. VJJAY KUMAR (Chmuf!'.aclzud, I.)
883
A
sale in favour of 111~ plainliff. The High Court passed a
fresh preliminary
Jecree under order 34, Rule 4 C.P.C .• directing that that the plaintiff was entitled
to recover Rs. 34,~8~/- and odd .and directed the defendants to pay the entire
decretal amount '''Ithrn 6 months of th~ date of decree. 1he plaintiff questions
the correctness of the decree b~fore this Court.
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The appeal filed by defendants 2 & 3 \Vas against the finding recorded by the
trial court that the partition between deft. 1 and hi" sons was a colourable trru:Jii;-
nc~i'?n. Therefori;:, 1t V.'as clear that the appeal filed by defts. 2 & 3 \Vas directed
ort~nafly not against any part of the preh,ninary decree but again'it a
mere
.fin.ding recorded by the trial court that the partition was not genuine_
Before
this Court, the main question v:as whether that appeal was
maintainable and
secondly, whether it \\·as· prOper for the High Court to allO\V the amendment of
the -!\Iei:no of appeal after 71 years \vithou: good cause shown and without any
. application for condonatton of delay .. A1Iov11ng the appeal,
l!ELD: (i) There is a basic distinction between the right of suit and the
right oi' appeal. There is an inherent right in every pers0n to bring a suit of .
a civil nature, but the right of appeal inheres in no one and therefore an appeal
for its maintainability must have the clear authority of law. . The various provisions in the C.P.C. show that under the CO('e, an.appeal lies only as against
a decree or as against an order- passed under rules from which -an appeal is
expressly allowed by Order 43, Rule 1. No appeal can lie against a mere
finding for the simple reason that the Codes does not provide for any such
appeal. Therefore, the first appeal filed by defendants 2 and 3 in the High
Court was not maintainable :as it was directed again~t a mere finding record.:d
by the trial court. [886 D-HJ
(ii) The Hi_gh Court should not have allowed the amendment of· the ?vferno
of Appeal particularly when de_fendants 2 & 3 had neither explained the longJe1ay nor sought its condonation.
Defendants 2 & 3 \Vere not denied by - t.'le
preliminary decree the right to pay the <lecretal amount and the t\vo defen<lan.ts
could even have applied under order 21, Rule 89 for setting aside the sale in
· fa':our .of the appellant; but they failed to do so. The prelimil!ary tl:cree had
remained unchallenged since September., 1958 and by lapse of time a valuabJe
ri.!!ht had ;<1.ccn1ed in favour of the decree-holder. Therefore, to allow the amend-·
ment after such a long time \\rithout a good cause was not a yropcr exercise of
judicial discretion in the circumstances r.:f t~e cas_e. [888 D-E
f'JVIT. APPEi I.ATE. JURISDICTIO" : Civil Appeal No. 582 of 1969 .
. Apreal from the Judgment' anll Decree dated the 19th March,
19(>8 o( the Bombav Hi!!h Court at Na_gpur in Firot Appeal No. 72
of 1959.
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M. N. Phadke, R. A. Gupta and K. B. Rohalgi for the Appellant.
B. i\". Lokur, Arwz Kumar Sanglzl and A. G. Rat;;aparklz(for the
R<;!'pondents.
The Judgment of the Court was delivered byCHANDRACHUD, J. ·This is a plaintiff's appeal on a certificate
granted by the Hi_gh Court of Bombay, Nagpur Dor.ch, under Artick
133(i)(al of the Constitution_
On March 24,· 1953 defendant 1 executed on behalf of himself
and his minor son defendant 2. a deed of mortgage in favour of the
pfaintiff.
Defendant 3 is also a son of. defendant 1 but he was born.
aft~r the mortgage deed. on September 30, 1955. On January 11, 1956
a t\~£:lstcrctl deed of partition was cxecured amongst the defendants
un<ler which the mortgaged property was allotted to the share of defendants-~ and .3.
·
884
. SUPREME COURT REPORTS .
(1974] 3 S.C.R .
On September 1, 1956 the mortgagee filed Civil Suit No. 3A of
1956 to enforce the mortgage. On September 20, 1958 the trial court
passed a preliminary decree fc~ sale of defendant l's interest in the
mortgaged property. It held that part of the consideration for the mortgage was not supported by legal ,necessity and the balance of the debt
incurred on the mortgage was tainted with immorality. Though, therefore, defondant 1 had executed the mortgage as a manager of the jcpnt
Hindu family consisting of himself and defendant 2, the debt was hel.d
not binding on the one-half share of defendant 2 in the mortgaged
property.
On the issue relating to the genuineness of the partition
eiiected by defendant 1 between himself and his suns, the trial court
r!X'<}rded a finding that it was a. sham and colourable transaction and
its· obiect was to delay or Uefeat the creditors.,
Being aggrieved bv. the ..decree directing the sale cf half the mortgaged property only, the jllaintiff filed First Appeal No. 40 of 1959
in the High Court of Bombay. Though the suit was dismissed as against
defendants 2 and 3, they also filed an appeal in the High Court to
chllilenge the finding of the trial court that the deed of partition was a
sham and colourable transaction.
That was First Appeal No. 72 of
1959 ..
During the pcndency of these two appeals, the preliminary decree
was made final by the trial court on October 23, 1958. On March 2,
1960 the plaintiff purchased, with the permission of the court, a joint
half share in the mortgaged property in full satisfaction of his decree.
On September 21. 1960 the auction sale was confirmed and on l\ovcm-
. • ber 25. 1960 the· plaintiff.w.as put in joint possession o( the property.
On March 15. 1966 th.e aPjlC.:.tls filed by lhe plaintiff and by defendants 2. a_nd 3 came up for hearing before a Division Bench consisting of Abhyinkar and Deshmukh JJ. The hearing of the appeals was
adjourne!d from time to timi: and while the appeals were part-heard, .
defendant• 2 and 3 applied m August 2, 1966 for amendment of their
· Mcmorondum of Appeal in~First Appe"al No. 72 of 1959. Bv the
pr()l)osed amendment they sought leave of the High Court t'l challenge
the preliminary decree passed by the trial court. The plaintiff opposed
that amendment and applied that she did not desire to prosecute
Erst Appeal No. 40 of 1959 filed by her.
The High Court did not pass any orders either on the application
for amendment made by defendants 2 and 3 or on the application of
the plaintiff asking that her appeal be dismissed for non-prosecuticn.
On August 24, 1966 the High Court adjourned the hearing of the
appeals for three months to enable defendants to pay the amount due
under the preliminary decree. On November 24, 1966 defendants 2
and 3 deposited Rs. 12,500 and applied for an extension of two mcilths
for paying the balance. The extension was granted by the High Court
and on January 25, 1967 'defendants 2 and 3 deposited a further sum .
of Rs. 25,000 towards the satisfaction of the preliminary decree.
On Februarv 1¢. 1968 another Division Bench of tite High Court
(Tambe and Badkas, JJ.)
allowed the application of defendants
2 and 3 for amendment of their Memorandum of Appeal in Frrst
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GANGA llAI v .. VIJAY ll:UMAR (Chandrachud, /.)
885
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Appeal No. 72 of 1959. On an application made by their counsel, the
High COurt granted !Cf those defendants time till February 2:i, 1968 io
pay the deficit court fees, which they did. The High Court then took
up the two F1tst Appeals for hearing in March, 1968.
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As the plaintiff bad applied that she did not desire to proceed with
First Aooeal No. 40 of 1959 filed by her, the Hii::t, Court dismissed
that appeal for non-prosecution. As a conseq'uence of this order
the Hil!h Court observed that the findings recorlled by the trial court
in favour of the defeltiants and adverse to the plaintiff would stand
confirmed.
'
In First Appeal No. 72. of. 1959 filed by defendants 2 and 3 it
was uraed bv the plaintiff that as the ai>Peal was originally filed to
challenire the. findina of the trial co1'rt on the question of genuinene1&
of the partition. defendants 2 and 3 were not .mlilled to include new
~ounds in the Memonutlum of Appeal and that the Memorandum
should not have been pennitted to be amended. 'the High Court
he'd that in view of the provisions of Order 41, Rule 2, Civil Procedure Code. it was OPCn to ~fendants 2 and 3, with leave of the court,
to urge additional grounds in their appeal without amending the Memorandum of appeal and therefore the objection raised by the plaintift as
against the amendment was futile.
The Hiah Coutt further held that the appeal filed by defendants 2
and 3 was competent even thoURh the suit was wholly dismissed as
against them.
Accordina to the High Court, ·defendants 2 and 3
were aeerieved by t'ie adverse lindilllt on the question
of partition
nnd further they were denied under the preliminary decree the right
to pay the decretal anionnt and to redeem the mort~age. It was therefore ooen to them. to file an appe3! a1ainst that decree.
On the merits of the ap;ieal •. the High Court set aside the findinf,
of tbe tr•a! court and h!l1d that the partition was "real .and ~enuine'
~nd that it was not effected in order to defe•t 'he creditors. Defendants 2 and. 3 had therefore be<xlme owners of th' equity of redemption and they could not be deprived of the right to re<leem the
mortgage.
In the result, the High Court set aside ihe, preliminary decree as
also the l\nal decree and with it the auction s3Ie .in favour of the plaintiff. The High Court passed a fresh preliminary decree under Order
34, Rule 4, Civil Procedure Code declaring that the plaintiff was
entitled to recover Rs. 34, 386 and odd and directing the defendants to
pay the entire decretal amount within six months of the date of decree.
The plaintiff questi011s the correctness of that decree in this appeal.
H
It is necessary first to understand the nature of the appeal filed by
defendants 2 and 3 in the Hi$ Court and the relief they soUMt therein. That appeal WllS in terms filed only a~inst the finding 'recorded by
the trial court that the partition between. defendant 1 and his llOllS was
a sham and colourable transaction intended to defeat or delav the
cre<litors. The Memorandum Of Apoeal as filed
ori~nally contained
886
SUPREME COURT REPORTS
[1974] 3 S.C.R.
seven grounds, each of which was directed against the findin& ,lliven
by the trial court on the question of partition. The Memorandum contained a note that as the subject-matter in dispute was not capable of
being estimated in tenns of a money value, a fixed court fee of Rs. 20
was paid thereon. Only one prayer was originally made in the Memorandum of Appeal that the partition deed be declared as genuine.
Counsel for defendants 2 and 3, furnished to the registry of the High
Court a written explanation as required by Rule 171 of the High Omrt
Rules that as defendants 2 and 3 were only challenging the finding
recorded by the trial court on the question of partition and as they
were merely seeking a declaration that the partition was genuine, the
fixed court fee of Rs. 20 was properly paid.
It is thus clear that the appeal filed by defendants 2 and 3 in the
High Court was directed originally not agai~st any part of the preliminary decree but against mere finding recorded by the trial court
that the partition was not genuine. The main controversy before us
centres round the question whether that appeal was
maintainable on this. question. the position seems to us well-established.
There is. a basic distinction between. the right of suit and the right of
appeal. There is an inherent right in every person to bring suit of a
civil nature and unless the suit is barred by statute one may, at ones
peril, bring a suit of one's choice. It is no answer to a suit, howsoever
frivolous the claim, that the Jaw confers no such right to sue. A suit
for its maintainability requires no authority of law and it is enough
that no statute bars the suit. But the position in regard to appeals is
4uite the opposite. The right of appeal inheres in no one and there·
fore an appeal for its maintainability must have the clear authority of
Jaw. That explains why the right of appeal is described as a creature of
statute.
Under section 96(1) of the Code of Civil Procedure, save where
otherwise expressly provided by the Code or by any other law for the
time being in force, an appeal lies from every decree passed by any
court exercising original jurisdiction, to the court authorised to hear
appeals from the decisions of such court. Section 100 provides for a
second appeal to the High Court from an appellate decree passed by a
court subordinate to the High Court. Section 104(1)
provides for
appeals against orders of the kind therein mentioned and ordains that
save as otherwise expressly provided by the Code or by any law for
the time being in foree an appeal shall lie "from no other orders'"
Clause (i) of this section provides for an appeal against "any orders
made under Rules from which an appeal is
expressly allowed by
rules". Order 43, Rule 1 of the Code; which by reason of clause (i)
of section 104(1) forms a part of that section, provides for appeals
against orders passed under various rules referred to in clauses (a) to
(w) thereof. Finally, section 105(1) of the Code Jays down that save
as otherwise expressly provided, no appeal shall lie from any order
made by a court in exercise of its original or appellate jurisdiction.
These provisions show that under the Code of Civil Procedure, an
appeal lies only as against a decree or as against an order passed under
rules from which an appeal is expressly allowed by Order 43, Rule I.
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OANGA BAI V. VJ.JAY KUMAR (C/randrachud, /.)
8~ j
No appeal can lie against a mere finding for .the silllple reas<?,n that lhe
Code does not provide for any such appeal. It must follow that F1rst
Appeal No.- 72 of 1959 filed by defendants 2 and 3 was not. maintainable as it was directed against a mere finding recorded by the trial
court.
The High Court .mixed up two distinct issues.: one, whether it_ was
competent to defendants 2 and 3, if they were ag~ieved by the preHrninary decree of file an appeal against that decree; and two, whether
the appeal such as was filed by them was maintainable. If it be correct
that defendants 2 and 3 could be said to have been aggrieved by the
preliminary decree, it was certainly competent for them to challenge
that decree in appeal. But they did not file an appeal against the preliminary decree and therefore the questiol\ whether. they were aggrieved
by that decree and could file an appeal therefrom was irrelevant. While
deciding whether the -appeal filed by defendants 2 and 3 was maintain.
able, . the High Court digressed into the question· of the competence
of defendants 2 and 3 to file an appeal against the preliminary decree
and taking the view that it was open to them to challenge that decree
even though the suit was wholly dismissed against them, the High
Court hC!d that the apjleal, which in fact was directed against a finding given by th_e trial court, was maintainable. It the High Court had
appreciated that the two questions were distinct and separate, it would
not have fallen into the error of deciding the latter question by considering the former.
Adverting to the question which the High Court· did consider,
namely, whether defendants 2 and 3 could be said to be aggrieved by
the preliminary decree, there is nothing in the terms of that decree
which. precluded those defendants from depositing the decretal amount
to be able to redeem the mortgage. The trial court had passed the usual
preliminary decree for sale in Form No. 5A, under Order 34., Rule 4 .
Civil Procedure Code. If the amount found due to the appellant under
the decree was paid into the court within the stipulated or extended
yeriod, the appellant would have been obliged to deliver to the mortgagors all the documents in her possession or power relating to tho
mortgaged property and to deliver up to the defendants quiet and
peaceable possession of the property free from the mortgage.
The
amount declared to be due to the appellant by the preliminary decree
was _not paid by the defendants, from which it .wottld appear that they
were not interested in paying the amount. It is significant that defendants 2 and 3 were served ~th the notice of final decree proceedings
and they appeared th_erein. The Code is merciful to mor~gors and
perhaps rightly, because the mortgagee ought to have no grievance if
the loan advanced by him is repaid with permissible interest,· costs
and expens\'8. Under Order 21; Rule 89, it was open to defendants 2
arid 3 as late as after the appellant purchased the property in the auction sale, to pay the amount due to her. These defendants had interest
in the mortgaged property by virtue of a title acquired before the sale.
that is, under the tegistered partition dated January 11, 1956. Under
Order 21, Rule 89, where illlmovable property is sold in execution of
a deeree, any person owing the property· or holding an interest there-
888
SUPJ.l!Mll COUllT J.l!PORTS
[1974) 3 s.c.11.
in by virtue of a title acqu\red before the sale, can apply to have the
A
• sale set aside qn his depositing in Court, for payment to the purchaeer
a sum· equal to five per cent of the purchase-money and for payment
to the decree-bolder, tho amount specified in the proclamation of sale
ll!I that for the recovery of which the sale was ordered. Nothing of the
kind was done and even the last significant opportunity was not availed
of by the defendants. Counsel for the appellant seems right that the
defendants were content that only half the mortgaged property was
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directed to be sold and that it was only because of the. later appreciation in prices of real property that defendants 2 and 3 awoke to the
exigency of challenging the preliminary decree. That was much too late.
So late indeed, that not having any plausible reason to assi111 for
the inordinate delay caused in applying for an amendment of the
appeal, they preferred not to file an application for condoW1tion of
delay at all. The appeal was filed on January 4, 1959 while the appli·
cation for amendment was made. on August 2, 1966. Event though no
explanation was offered for the long delay of over 7t years, the
High Court allowed the amendment with a laconic orcjer "Application
for amendment allowed".
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Thus, the appeal filed by defendants 2 and 3 being directed against
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a mere finding given by the trial court was not maintainable; defendants 2 and 3 were not denied by the preliminary decree the right to
pay the decretal amount; and the two defendants could even have
applied under Order 21, Rule 89, for setting aside the sale in favour
of the appellant but they failed to do so as, presumably, they were not
interested in paying the amount. The High Court was therefore wholll
in error in allowing the amendment of the Memorandum of Appea ,
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particularly when defendants 2 and 3 had neither explained· the long
delay nor sought its condonation.
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The preliminary decree had remained unchallenged since
September -1958 and by lapse of time a valuable right· had accrued in
favour of the decree-holder. The power to allow an amendment is un·
doubtedly wide and may at any stage be appropriately exercised in
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the interest of justice, the law of limitation notwithstanding. But the
exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the
care and circumspection on the part of the .court. The apJl:al in terms
was originally directed against the finding given by the tnal court that
the partition was sham and colourable. "Being aggrieved by the finding
given in the Judgment and the Decree .......... it is humbly prayed
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that findings given by the learned Judge in Para 34 of his Judgment
may kindly be set aside, and instead the partition deed dated 11-1-56
may kindly be declared as genuine"--so ran the Memorandum of
Appeal. Defendants 2 and 3 reiterated through their counsel by filing
a note to explain the payment of fixed court fees of Rs. 20 that they
were "seeking the relief of declara'ion only" and therefore the court
fee paid was proper and sufficient. Long years thereafter, the High
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Court allowed the Memorandum to be amended not a reason was cited
to explain the delay and not a reason was given to condone it. And it
was not appreciated that in granting time to defendants 2 and 3 to
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GANGA BAI v. VIJAY KUMAR (Chandrachud, J.)
8~&
make up the deficit of the court fees 7 t years after the a~al was li)ed,
an amendment was being allowed which had its impact nCJ only on the
preliminary decree· but· on the final decree which was passed in the
meanwhile, the auction sale which was held in pursuance of the final
decree and the sale certificate which was granted to .the appellant who,
with the leave of the court and in full satisfaction of her decree, had
purchased a joint 1/3 share ·in the mortgaged property. With the
striking· down of the preliminary decree, these proceedings had to·
fall but the error really lay in allowing the amendment so as to permit,
without good cause shown, a belated . challenge to the preliminary
decree.
One other aspcct of the question relating to the mai!ltainability of
the appeal yet remains to be examined. Counsel for the respondenL•·
argues that the finding of the trial court on the issue of partition would
have operated as res judicata against them and they were therefore
entitled to appeal therefrom.
In Ha,rchandra Das v. Bholanath Das on
which the learned
counsel for the respondents relies in support of this submission, a suit
for pr~mption was dismissed by the trial court on the ground of limitation. In an ap~ filed by the plaintiff, the District Court reversed
that findin!!l but confirmed the decree dismissing the suit on the ground
that the sale effected by defendants 4 and 5 in lavour of defendants I,
2 and 3 was not validly registered and there being no "sale", there
can be no right of pre·empti.on. Deiendants I to 3 preferred an appeal
to the High Court against the finding recorded by the District Court
that the sale effected in their favour by defendants 4 and 5 was not
valid as it was not lawfully registered. On a preliminary objection
raised by the plaintiffs to the maintainability of the appeal, the High
Court of Calcutta held that though under the Code of Civil Procedure
there can be no appeal as against a mere finding, "it may be taken to
be the view of courts in India generally, that a party to the suit adversely affected by a finding contained in a judgment, on which a decree
is based, may appeal; and the test applied in some of the cases for the
purpose of determining whether· a party has been aggrieved or not was
whether the finding would be res judicata in other proceedings". The
High Court, however, upheld the preliminary objection on the ground
that the issue regarditig validity of the sale which was decided against
defendants l to 3 would not operate as res judicara in any subseque0t
proceeding and therefore the· appeal which was solely directed against
the finding on that issue was not maintainable.
The position here is similar to that in the Calcutta case. The trial
court decreed the mortgagee's suit only as against defendant 1, the
father, and directed the sale of his one half interest in the mortgaged
property on the ground that part of the consideration for the mortgage
was not supportO<j by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was
not binding on the interest of the sons, defendants 2 and 3. Whether
the partition between the father and sons was sham or real had no
(I) I.L.R. (19351 62 Cal. 701.
·'890
SUPREME COURT REPORTS
[1974] 3 s.c.R.
:impact on the judgment of the trial cc!W't and made no material diffe-
.rence to the decree passed by it. The finding recorded by the trial court
that the partition was a colourable transaction was unnecessary for the
decision of the suit because even if the court were to find that the
partition was genuine, the mortgage wollid only have bound the interest
of the father as the debt was not of a character which, · under the
Hindu law, would bind the interest of the sons. There is no substance
in the submission made on behalf of the sons that if the partition was
held to be genuine, the property would have been wholly freed from
the mortgage encumbrance. The validity or the binding nature of an
alienation cannot depend on a partition effected after the alienation; or
else, a sale or a mortgage effected by the Karla of a joint-Hindu family
can easily be avoided by effecting a partition amongst the members of
the joint family. As the mat_ter relating to the partition was not directly
and substantially in issue in the suit, the finding that the partition was
sham cannot operate as res judicata. Therefore, the appeal filed by
defendants 2 and 3 against that finding was not maintainable, even on
.the assumption that the High Court of Calcutta is right in its view
that though under the Code there could_ be no appeal against a finding,
yet "On grounds of justice" an appeal· may lie against a finding provided that it would operate as res judicata so as to preclude a party
aggrieved by the finding from agitating the question covered by the
findinll in any other proceeding. It is not necessary here to determine
·whether the view of the Calcutta High Court is correct.
For these reasons we allow the appeal with costs, set aside the
judgment of the High Court and restore that of the trial court.
s. c.
Appeal allowed.
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