# M. RAMNARAIN PRIVATE .LTD. AND ANR v. STATE TRADING CORPORATION OF INDIA. LTD

- **Citation:** [1983] 3 S.C.R. 25
- **Court:** Supreme Court of India
- **Decided:** 1983-05-05
- **Case number:** Civil Appeal No. 2905 of 1981
- **Bench:** P. N. Bhagwati, Pathak, Amarendra Nath Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-ramnarain-private-ltd-and-anr-v-state-trading-corporation-of-india-ltd-8481
- **Pages:** 35

## Headnote

Cudeo/Civi/Procedure,-J908-0rder 20 r. JI-As amended in 1916Interpretation of-Direction regarding p'ayn-1ent of decretal amount-An orderTil/ incorporatr!d in Decree-No appea/'l{es against that order-Appeal lies against
deCree containing such direction-Order not •judg111ent' within clause 15 of Letters
Patent.
·
Code o/Ci)!i/ Procedure, Order 41, r. I-Interpretation of-Filing copy
of decree with nienzorandum- of appeal 1nandatory-Appea/ filed w~ut decree
invalid-Filing or wifh,frawal of inco1npetent appeal:-No bar to file p1oper appeal
against decree.
A
B
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D
Code of Civil p,.ocedure, Order 2, t:. 2-Jntirpretation of-Not applicable
to appeals.
E
Code of Civil frocedure, Order 20, r. 11, Order 2, r. 2 and Order 23, r.1lnterpretation of-Do not deal with right of-appeal or extinguishn1ent thereof-Do
not confer or ljeprive right of appeal. Right to appeal-Creation of statute-May
be lost by law or conduct of appellant or appellant may disentil/e himself tO
enforce right of appeal-Prayer regarding pay1fient of decretal amount does not
deprive a party of his right to file an appeal against the decree-Mistaken advice
of lawyer does not deprive appellant of his right of appeal.
The respondent, as plainti[, filed a suit against the appellant, as deFen·
dant, in the Original side of the· Bombay High Court for the enforcemellt of
its claim for a large amount_ <1f over Rs. 40 lakhs. The appellant not only
contested the claim but also made a counter-claim. The appellant made a
request that in the event of a decree being passed· against them, they may be
allowed to pay the decfetal amount in instalments. A single Judge dismissed
the: counter-claim and passed a decree in favour of" respondent and allowed the
decretal amount to be paid in instalments. Delivery of Judgment which commenced on 12th December 1980 was concluded on 16th December 1980, upon
which the_ advocates for the appellant addressed a letter to the Prothonotary
and SeOior Master, High Court, requesting that the accompanying memotanQum.Of appeal be taken on file. Th.is appeal whi"11 wa.s numb_ered 36_ of 1981
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, SUPREME COURT REPORTS
11983) 3 s.c.R..
was filed on 20th January, 1981. The appeal was directed against the order in
respect of instalm~nts. On 21st January 1981, when the matter was called for
admission before a Division Bench the appellant asked for leave to withdraw
the appeal and the appeal was allowed to be withdrawn. A week after the
withdraw'al of appeal No. 36 the appellant filed an ·appeal against the judgment
taking grounds relatin~'to the merits of the case and also the direction as to
instalments.
Thi~ appeal was numbered 44 of 1981. .After this appeal was
heard on inerits for a few days, the repondent raised a preliminary objection
that because the appellant had earlier filed appeal No. 36 against the provision
regarding insta Jments and which had been withdrawn, the present appeal No.
44 was not maintainable. The Division Bench upheld the preliminary objection
and dismissed appeal No. 44 on the ground that the ·appellant had by filing
appeal no. 36 against the provision relating to instalments abandoned its right
to challenge the decree on merits.
The ~pi:ellant contended in this Court that the filing of earlier ;ppeal No.
36 or the withdrawal thereof does not affect the right of app_ellant to prefer
·appeal no. 44 against the de.cree on merits. Appeal No. 3G was filed against
the order'of the Hi"gh Court passed under Order 20, r. 11 of the Code of Civil
'Procedure in regard to instalments only and not against the decree. Appeal
No. 36 had been filed soon after the judgment.had been pronounced and long
before the decree incorporating the· order regarding instalments had been
drawn up. tt'A_ppeal No. 36 must be considered to be an appeal against the
order and not against the decree. The right to prefer an appeal is a creature
of statute. The order regarding instalments is not appea13.bte under C.P.C. and
such an order cannot also be

## Text

_Characters 0–39,198 of 89,913. This is a partial read: ask again with offset=39198 for what follows._

i.
M. RAMNARAIN PRIVATE .LTD.
AND ANR.
v.
STATE TRADING CORPORATION
OF INDIA. LTD.
May 5, 1983
(P. N. BHAGWATI, R. S, PATHAK AND
AMARENDRA NATH SEN, JJ.]
Cudeo/Civi/Procedure,-J908-0rder 20 r. JI-As amended in 1916Interpretation of-Direction regarding p'ayn-1ent of decretal amount-An orderTil/ incorporatr!d in Decree-No appea/'l{es against that order-Appeal lies against
deCree containing such direction-Order not •judg111ent' within clause 15 of Letters
Patent.
·
Code o/Ci)!i/ Procedure, Order 41, r. I-Interpretation of-Filing copy
of decree with nienzorandum- of appeal 1nandatory-Appea/ filed w~ut decree
invalid-Filing or wifh,frawal of inco1npetent appeal:-No bar to file p1oper appeal
against decree.
A
B
c
D
Code of Civil p,.ocedure, Order 2, t:. 2-Jntirpretation of-Not applicable
to appeals.
E
Code of Civil frocedure, Order 20, r. 11, Order 2, r. 2 and Order 23, r.1lnterpretation of-Do not deal with right of-appeal or extinguishn1ent thereof-Do
not confer or ljeprive right of appeal. Right to appeal-Creation of statute-May
be lost by law or conduct of appellant or appellant may disentil/e himself tO
enforce right of appeal-Prayer regarding pay1fient of decretal amount does not
deprive a party of his right to file an appeal against the decree-Mistaken advice
of lawyer does not deprive appellant of his right of appeal.
The respondent, as plainti[, filed a suit against the appellant, as deFen·
dant, in the Original side of the· Bombay High Court for the enforcemellt of
its claim for a large amount_ <1f over Rs. 40 lakhs. The appellant not only
contested the claim but also made a counter-claim. The appellant made a
request that in the event of a decree being passed· against them, they may be
allowed to pay the decfetal amount in instalments. A single Judge dismissed
the: counter-claim and passed a decree in favour of" respondent and allowed the
decretal amount to be paid in instalments. Delivery of Judgment which commenced on 12th December 1980 was concluded on 16th December 1980, upon
which the_ advocates for the appellant addressed a letter to the Prothonotary
and SeOior Master, High Court, requesting that the accompanying memotanQum.Of appeal be taken on file. Th.is appeal whi"11 wa.s numb_ered 36_ of 1981
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, SUPREME COURT REPORTS
11983) 3 s.c.R..
was filed on 20th January, 1981. The appeal was directed against the order in
respect of instalm~nts. On 21st January 1981, when the matter was called for
admission before a Division Bench the appellant asked for leave to withdraw
the appeal and the appeal was allowed to be withdrawn. A week after the
withdraw'al of appeal No. 36 the appellant filed an ·appeal against the judgment
taking grounds relatin~'to the merits of the case and also the direction as to
instalments.
Thi~ appeal was numbered 44 of 1981. .After this appeal was
heard on inerits for a few days, the repondent raised a preliminary objection
that because the appellant had earlier filed appeal No. 36 against the provision
regarding insta Jments and which had been withdrawn, the present appeal No.
44 was not maintainable. The Division Bench upheld the preliminary objection
and dismissed appeal No. 44 on the ground that the ·appellant had by filing
appeal no. 36 against the provision relating to instalments abandoned its right
to challenge the decree on merits.
The ~pi:ellant contended in this Court that the filing of earlier ;ppeal No.
36 or the withdrawal thereof does not affect the right of app_ellant to prefer
·appeal no. 44 against the de.cree on merits. Appeal No. 3G was filed against
the order'of the Hi"gh Court passed under Order 20, r. 11 of the Code of Civil
'Procedure in regard to instalments only and not against the decree. Appeal
No. 36 had been filed soon after the judgment.had been pronounced and long
before the decree incorporating the· order regarding instalments had been
drawn up. tt'A_ppeal No. 36 must be considered to be an appeal against the
order and not against the decree. The right to prefer an appeal is a creature
of statute. The order regarding instalments is not appea13.bte under C.P.C. and
such an order cannot also be considered to be a 'Judgn1ent' within the meaning
of clause 15 of the Letters.Patent. Appeal No. 36 which was against the order
fegarding instalments was incon1petent and ·was therefore no appeal in the e'ye
of law and for all legal Purposes was non-est. Even if appeal No. 36 has to be
considered an appeal against the decree in view of amended provision of Order
20, r. 11 ·qf C.P.C., the said appeal still must be held to be incompetent and no
appeal in the eye of law as the appeal was filed without a certified copy -
of the decree and wa< even withdrawn before a certi~ed copy of the decree
cOuld be filed.
Appea~ No. 44 filed against the decree in terms of the
prOvisions contained. in the Original Side Rules of Bombay High Court
becomes a proper and conlpetent appeal as the earlier appeal No. 36 was not a
valid' appeal in the eye of law. The provisions of Order 2, r. 2 and Order 23,
r. 1 of C.P.C. do not in any way affect the maintainability and the merits of
11ppeal no. 44 as the cause of action and the subject matter of appeal No. 44 are
entirely different from the cause of action and the subject matter of appeal No.
36. The appellant did not waive his statutory right to file the appeal. The
appellant by his conduct has also not disentitled himself to file Appeal No. 44.
Appeal no. 36 was filed on the advice of lawyer under mistaken belief; mistaken
advice of a lawyer cannot be the foundation of a plea of estoppel. No prejudici.: has been caused to the respondent by filing and withdrawal of appeal No.
36 by the appeUant.
The respOndent contend~d that""in view of the amended provisions of
Order 20, r. 11, the order regarding instalments which is required to be incorporated in the decree necessarily fornis a -part of the decree. In view of the
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RAMNAAAIN (Pl LTJ?. v. s:r. CORPN.
provisions contained in Order 2, r. 2 and Order 23, r. 1 of C.P.C. it-was open
to the appellant to prefer an appeal against the decree or to appeal against any
part thereof. The appel\ant preferred to file appeal No. 36 only against the
part of the decr~e relating to instalments and not against the decree as _a whole.
The filing of appeal restricted to the directions as to the instalments bars a
subsequent appeal against the decree on merits. The appellant having obtained
a benefit or advantage under the decree to the prej,.udice of respondent cannot
now question the correctness o( the decree passed.
Allowing the app~al,
HELD: The provisions of Order 20, r. 11, Order 41, r. 1 Order 5, r. 2
and Order 23, r. 1 of the Code of Civil Procedure do not deprive the appella"nt
of his right to file appeal No. 44.. [54 DJ
. The right to prefer an appeal is a right created by statute. A right.of
appeal may be lost to a party in appropriate cases by the provisions of law and
also l;>y the conduct of the party. The la.w of limitation may. deprive the party
of the right he may enjoy to prefer an appeal. Also in appropriate cases a
party may be held to have become· disentitlcd from enforcing the right to
appeal which he may otherwise have. [46 A-C]
ln the instant case the defendant-appellant did have a right of appeal
against the decree by virtue of the provisions of s. 9_§ read with Order 41 of
Civil Procedure. The appeal has been filed
within~ the period of limitation,
The law of limitation, therefore, does not defeat the right of the appellant to
file an appeal. [46 C-D]
Order 20, r. 11 makes provisions for postponment of payi:nent of money
· decree and of its payment in instalments and lays down the procedure for
dirt"cting payment of a money decree in instalments. The amendment .introduced in 1976 to Order 20, r. 11 requires that any provision directing the paym~nt of the amount decree.d shall be postponed or shall be made by instal-.
ments may be incorporated in the decree. The direction regarding payment
of the decretal arilount is an indepehdent order which is reqliired to b_, incorporated in the decree and it can only be incorporated in the decree when the
decree.is drawn up. It retains the character of an order "till it is so incorporated in the decree. The rules of the Origin"al Side of the Bombay High
Court make necessary provisions as to the_ drawing up of a decree. lo view of
procedure laid down in the rules for the drawing up of a deeree, there is bound
to be a time lag petween the judgment and the dr_awing up of a decree, in
which the order regar~ing instalment is to be incorporated. Appeal against
any .Provision granting instalments or refusing to grant instalments will not be
competent if the direction granting or refusing to grant instalments is considered to be an
ord~r. Such an order is not appealable under the Code.
Such an order will also not be a 'judgn1enf within the meaning of clause 15 of
the Letters Patent and will not be appealable as such if however, the direction
with regard to instalments is considered to be a part of the decree, an appeal
will undoubted!~ lie as an appeal from a decree.
[47 D·E, 4fG·H, 41C-D,47 F·H]
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SUPREME COURT REPORTS
(1983) 3 S.C.R.
The provisions of Order 20, r. 1 I do not deprive the appellant in the
insta1:J.t. case of his right to prefer an appeal against th~ decree. The earlier
appeal No. 36 of 1981 had been filed long before the decree in which the order
regarding instalments under Order 20, r.il of the Code.was to be incorporated
had been drawn up. As at the time of .filing the earlier appeal No. 36 the
Order regarding instaln1ents had not been incorporated in the decree, the order
retained its character of an order. The earlier appeal No. 36 at the time when
it was filed, should therefore be rega.rded as an appeal against an order. The
precipe filed for the drawing up of th~ order, the letter to the Prothonotary and
Senior Master of the High Court by the Advocates for the appellant, the memorandum of appeal filed and the ainount of stamp furnished on the memorandum
are facts which go to indicate that the earlier appeal had been filed against the
order regarding instalments treating the same to be. an order. The appeal
No. 36 must therefore be held to be incompetent. If the earlier appeal ~o.-36
were to be considered to be an appe:i.1 against the decree, the appeal would still
be incompetent, because the appellant had furnished .the amount of stan1p
necess?-rY for preferring an appeal against the order and the requisite stamp
in respect of an appeal against a decree had not been affixed.
[46 E, 48 D-E, 48 H, 49 A-B, 48 B, 43 D-Cj
Lader Order. 41, r.J, every appeal has to be prefe.rred in the from of' a
memorandum signed by the appellant or his pleader and presented to the court
or to such officer as it appoints in that behalf, and has to be accompanied by
a copy Of the decree appealed from, and of the judgment on· which it is founded. Rule 1 empowers thD"appelJate court to dispense with the .filing of the
judgment but there is no jurisdiction in the appe-.Uate court to dispense wHh the
filing of the decree. The require1ncnt that the decree should be filed alongwith
the memorndum of appeal is 1nandatory and .in the absence of the decree the
filing of the appeal would be incomplete, defective and incompetent. So long as
the certified copy of the decree is not filed there is no valid appeal in the eyC?
of law. Though by virtue of the provisions of the Original Side Rules of the
Bombay High Court the t:arlier apreal could be permitted to be filed.without a
certified copy of the decree or order, the appeal would not be valid and con1petent unless thf: further requirement of filing the certified copy had been
complied with. [49 G-H, 50 A, 53. C,49 F. 52 F]
'.
Jn the instant case, at the time when the earlier· appeal No. 36 had been
withdrawn, the "certified copy of the decree had not been filed. The said appeal
without the certified copy of'the decree ren1ained an incompetent appeal. The
wHhdrawal of an h1compentent appeal which would indeed be no apreal in the
eye of Jaw cannot in any way prejudice the right of any appellant t_o file a
proper appeal, if the right of appeal is not otherwise lost by lapse of time or for
· any other valid reason. [52 F-G]
·
Order 2, r.2, contemplates that at the time of .the iiistitution of the suit,
the whole of the claim which the plaintiff is entitled to make in respect of the
cause of.action, has.to be made and also deals with the consequences of nou'-
compliance with the requiren1ents of the said rule. It is doubtful. whether the
principles underlying this rule can be said to be applicable to an appeal. This
ruie is applicable only to suits_ and cannot in terms apply to appcit.Is.
Ev~n if
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RAMNARAlN (p) LTD. v. S.T. CORPN.
29
an appeal be considered to be a continuation of a suit for certain purposes,
the provision of this rule cannot in terms be made applicable to an appeal in
view of the schen~e of the said rule and the l~nguage used therein. '
·
[53 F-G, 53 E-F]
In the instant c_ase the provisions Of Order 2, r.2 of the Code do not
stand in the way of the appellant in the matte'=' of filing· the subsequent appeal
No. 44. Even if the principles uiiderlying Order 2, r.2 are considered as applicable to an appeal the maintainability of tlie appeal No. 44 cannot be held to
be affected in any way as the cause of action in respect of the present appeal is
entirely different from the cause of action on which the earlier a:ppeal was
filed.
[23 A-B, G]
Order 23, r.1 of the Code does not also stand in the way of the main•
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tainability of the instant appeal No. 44. Apart from the incompetency of
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the ea"rlier appeal No. 36, the subject matter of. the said appeal Y.as entirely
different from the subject matter of the present appeal. [53 H, A-BJ
The prOviSions of the Code of Civil. Procedure contained in Order 20,
r. 11, Order 2. r. 2 an~ Order 23, r. 1 do not 'in terms deal with any questiOn
in relation jo the right of appeal or the extiJ;lguishment thereof. These provisions
do not by thrmselves confer any right of appeal on-a party or deprive any party
of the right of appeal which a party may enjoy. These are not the statutory
provisions which either c_onfer a right of appeal on a party or deprh·e a party of
any such right. [54 B-C]
A mere prayer for postponment of payinent of decretal amount or for
payment thereof in instalments on the basis of the provisions contained in
Order 20, r.1 J (1) of the Code at a time when the decision in the suit is yet to
be announced can never be c6nsidered to amount to such conduct of the p:i.rty
as to deprive him his right to Prefer an appeal against any decree, if ultimately
passed, and to disentit1e him from filing an appeal ~gainst the decree. [55 G-H]
Jn the matters of litigation the litigant who is not expected to be
familiar with the formalities of law and rules of procedure is generally guided
by the advice of hiS Iawye.rs. The statement of the· Jawyers recorded by the
Divisiori Bench in its judgment clearly goes to indicate that the lawyer had
advised· filing of the earlier appeal under mistaken belief. The act done by the
defendant-appellant" on ·the mistaken advice of a lawyer cannot fu.rnish a prop·er
ground for· depriving the defendant-appeliant of his valuable statutory right
of preferring an appeal against the decree. The filing of an incompetent
appeal on the mistaken advice of a Jawyer cannot, in our opinion, reflect any
such conduct on the part of the defendant-appellant as to disentitle him
to maintain the peresent appeal. [56 C, D; F, GJ
The present appeal No. 44 had been filed long before the decree had
been drawn up, and, there can be no question of execution of any decree; at
the time when that appeal was'filed. The question ef the1 defendant-appellant
having obtained an advantage un(le:r the decree does Qot 'therefore'. really
arise. [59 A-Bj
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SUPREME COURT REPORTS .
(1983] 3 s.c.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2905 of
1981.
From the Judgment and Order dated the 19th June, 1981 of
the Bombay High Court in Appeal No. 44 of 1981 in Suit No 540 of
1970.
F. S. Nariman, V. Tu/zapurkar, R. Nariman, Srikant Singh and
.Rajan Ktiranjawa/a for the Appellants.
L. N. Sinha, Attorney General and P . . P . . Singh. for the
Respondent.
The Judgment of the Court was delivered by .
AM:ARENDM NATH .SEN, J. .The maintainability of an appeal
filed by the defendant in the suit against a money-decree payable
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in instalment after the. defendant had filed an appeal only aganist the
part concerning the direction· with regard to the instalments· and bad
withdrawn the ·same, is the question for consideration in this appeal
by eertificate granted by the High Court under Article 133 (I) of .the·
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Constitution.
The facts material for the purp0se of the decision favolved in
this appeal are brief and may be stated. ·
The State Trading·corporation, the respondent in this appeal,
as plaintiff, filed a s.uit against the appellant who was the defendant
in the suit on the Original Side ofthe Bombay High Court foi the
enforcement of the plaintiff's claim for a large amount which inclusive
of interest .worked. out to over Rs. 40,00,000.00. For the purpose. of
deciding this appeal, it does not . become necessary to refer .to the
nature .of the claim. and the averments made by the· plaintiff ·in the
plaint for Claiming a decree for the said amount against ihe defendant-appellant. The defendant appellan( had contested the claim. The
defendant-appellant in the written state~ent had denied the claim
of the plaintiff-respondent, pleaded legal as well as equitable set-off
and had made a counter claim. In due course the suit came up for
· hearing before Bharncha, J. It appears that on the conclusion ·of the
hearing, the defendant-appellant prayed tliat the defendant-appellant
might be allowed to pay the decretal amount in the event of a decree
being passed against the defendant-ajljlellant, in jnstah;nent in
th~
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. RAMNARAIN (P) LTD. v. S.T. CORPN. (A.N. Sen, J.)
31
,
manner prayed for in an affidavit containing such prayer, filea on
behalf of the defendant. The learned single Judge for reasons
recorded in his judgment passed a decree in favour of the plaintiffrespondent for a sum of Rs. 40,00,000.00 with costs quantified at
Rs. 42,750.00, twb counsel being certified. The learned Judge dismissed the counter claim of the defendant-appellant. without any order as
to costs. The learned Judge in the concluding portion of the judgment observed as follows :
"Mr. Thakkar relied· upon affidavits filed on behalf
of the \st and 2nd defendants and sought for the payment
of the decretal amount a moratorium of 5 years, and after
the expiration of these 5 years, insta.lments.of Rs. 4,00,000
per annum. He then left it to the Court to fix such
instalments as it deemed proper. Mr. Doctor opposed
the grant of any instalment ...
Neither the facts of the suit nor the averments, such
.
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as they are, made in the affidavits would justify the giving
of an extended period for the. payment of the decretal
amount. In the circumstances I order that the decretal
amount be paid by mothly instalments of Rs. 3,50,COO
each, the first .of such instalment to be paid up on or
before 7th March; 1981 and subsequent instalment on or
before the 7th day of each succeeding month. The plaintiffs shall be at liberty to execute the decree for the
amount then due in the event of the plaintiff committing
·any one default. in payment of the said instalments."
Delivery of the judgment commenced· on the 12th December,
1980 and was concluded on the 16th December, 1980. On the day of
the conC!usion of1 the judgnien( i.e. 16th December, 1980, · three
precipes were addressed bi the Advocates for the defendant-appellant
to the Prothoncitary and Senior Master of the Bombay High Court,
(I) for certified copy of the d.ecree when drawn' up, (2) certified ·copy
of the judgment and (3) for certified copy of the minutes of the order.
On the 16th ·of January, 1981, the Advocates for the DefendantAppellant addressed· a letter to the Prothonotary and Senior Master,
High Court Bombay to the following effect :
·
"Be pleased to take on file the accompanying Memo
\)f appeal l1lon1,1 with compilation h1 duplicate. We als'o
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SUPREME COURT REPOR1S
(1983) 3 S.C.R.
send herewith Vakalatnama duly signed by our clients the
appellants abovenamed.
Kindly take the same on file.
We have to put on record that the appeal ·is un"der
Order 20, rule 11 of the Civil Procedure Cod~ and Court
fee of Rs. 5 is payable. We have to further state that the
. appeal is in time as certified copy of the order and judg·
ment as well as the decree was applied for on 16th
December, 1980 but the same has not been received by
us. Appeal is therefore in time.
Kindly see that the said appeal jg circulated before
the Chief Justice and Hon'ble Mr. Justice Rege and that.
the same appeal is called on Wednesday the 21st day of
Junuary, 1981".
The memorandum of appeal which was numbered as appeal No .
.36 of 1981 and was filed on 20.1.81 by the defendant-appellant
states:-
"Being aggrieved by the judgment and order dated
16th December by the Hon'ble Mr. Justice Bharucha
diiecting paymenfof the Decretal amount by monthly
instalments of Rs. 3,50,000 each, the appellants beg to
appeal therefrom on the following amongst other
grounds",.
In this memorandum of appeal directed against the order of
instalments, the defendant-appellant had taken 21 grounds and each
of the ground related to the order with regard to the payment of
decretal amount by monthly instalment of Rs. 3,50,000. This appeal
No. 36 of 1981 came up for admission before a division Bench of the ·
High Court consisting of the learned Chief Justice and Rege, J. on
21.1.81 and when.the matter was called on for admission, the counsel
for the appellant asked for leave .to withdraw the appeal and the
appeal was allowed to be withdrawn. The minutes of the Court
record- "Appeal allowed to be.withdrawn". On 29.1.82 i.e. just
after a week of the withdrawal of the appeal No. 36/1981, the
defendant·appellani filed an appeal against the judgment delivered
on 16th December, 1980 by Bharucha, J. and this appeal was numbered as appeal No. 44 of 1981. The memorandum of appeal in
this appeal states : "Being aggrieved by the judgment dated
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RAMNARAIN (P) LTD. v. S.T. CORPN. (A.N. Sen, J.).
. 33
16.12.1980, passed by the Hon' hie Mr. Justice Bharucha,' the appellant begs to appeal therefrom on the following amongst other
. grounds." In this· memorandum of appeal, the appellant has taken
as many as 73 groul)dS out of which grounds nos. I to 53 relate to
Judgment and .decree on the merits and grounds 54 to 73 relate to
the provision as io instalments. This appeal i.e. appeal n<'. 44 of
1981 came up for admission on 3.2.1981 before the same Bench
consisting of the learned Chief Justice and Rege, J., when the
plaintiff-respondents appeared through their counsel and· opposed
the admission on the ground that the appeal was not maintainable.
The appeal was, however, admitted and the minutes of the Court
after noting the appearances record-Admitted. After filing the
appeal, the defendant-appellant, made an application for stay of
the execution of the decree by way of notice of motion which \\as
.rejected by the diviS<on Bench. Against the said order of refusal t.o
stay execution, a special leave petition was filed in this Court. For
the propose of the present appeal, it does not become necessary to
refer to this special leave petition and the proceedings arising therefrom. The appeal came up for hearing before a Division Bench on
the.24th of March, 1981 and the hearing continued till '27th March,
1981 and on that date hearing of the appeal was adjourned to 8th
April, 1981 as per following order :
"Having heard Mr. Nariman on the merits of the
appeal for almost four days though we had not heard the
respondents, we, prima facie, were of the opinion that
there was force and su?stance in several of the contentions
raised and the arguments advanced on behalf of the
appellants and as 'the second instalment under the said
decree was payable by April 8, 1981, we suspended the
operation of the decree appealed against pending the hearing and final disposal of the said appeal." .
Hearing of the appeal commen_ced again on the adjour~cd date
i.e. 8th April, 1981 in terms of the ea<lier order and continued for
some days
It appears that after the appeal had been heard on
merits for some days, it was stated on behalf of the plaintiffrespondent before the Division Bench that the plaintiff-respondent
would b.e raising a preliminary objection as to the maintainability of
the appeal. . It was stated on behalf of the plaintiff-respondent that
since the defendant-appellant had earlier tied an aopeal, • being
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appeal no. 36 of 1981 against the provision regarding instalments
which h&d been withdrawn on 21.1.1981 by the defendant-appellant,
plaintiff respondenf would be contending that the present appeal
No. 44 of 1981 was not maintainable. It appears that since the
objection was taken at a late stage after the learned counsel · for the .
defendant appellant had addressed the Court on merits for a number·
of days : the Court permitted the counsel for tlie defendant 'appellant
,.,,._
to complete the arguments and the Court thereafter proceeded to
)-· -
bear the respondent on the question of maintainability. On 19.6.1981,
the Division Bench dismissed the appeal up holding the preliminary
objection to the maintainbllity _of the appeal on the ground that the
defendant-appellant had, by filing appeal no. 36 of 1981 against the
provision relating to instalments which the defendant-appellant had
withdrawn, abandoned its right to challenge the decree on merits.
'The Division Bench, however, while dismissing the appeal substituted for the decree of the Trial Court a decree for the sum · of
Rs. 40,18,737.38 with interest on the principal amount of
Rs. 18,18,451.39@ 6 percent per annum from the date of the judgment. till the payment or realisation and maintained the order-for
costs as passed by the Trial Court.
Aggrieved by the judgment and decree of the dismissal 01
the appeal filed by the defendant-appellant in the High Court on .
the ground that the appeal. was not maintainable, this appeal has
been filed by the defendant appellant with certificate granted by the
High Court.
Mr. Nariman, learned counsel appearing on behalf of the
defendant-appellant, has submitted that the High Court has erred in -
holding that the instant appeal nci. 44 of .1981 is not maintainable,
as the defendant-appellant by filing the earlier appeal no. 36 of 1981
against- the provision relating to instalments had abandoned its right
to challenge the decree on merits. The principal contention of
Mr. Nariman is that the filing of the earlier appeal no. 36 of 1981
or the withdrawal of the same by the defendant-appellant does not
affect the right of the defendant-appellant to prefer the present
appeal against the decree on merits and does not preclude the defendant appellant from filing the present appeal and proceeding with
the hearing thereof Mr. Nariman has argued that the earlier appeal
no. 36 of 1981 was filed against the order of the High Court passed
under Order 20, rule 11 of the Code of Civil Procedure with- regard
to t)l~·instahnepts only and the said appeal was not an appeal against
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RAMNARAJN (P) LTD. v_ S.T. CORPN. (A.N. Sen, J.)
3$
the decree. In support of Ws submission Mr. Nariman has referred
to the precipe filed on behalf of the defendant-appellant, the letter
addressed by the Advocates for the defendant appellant on the 16th
·January, 1981 to the Prothonotary and Senior. Master, High C'ourt
and also to the memorandum of appeal filed in appeal no. 36 of
19.81 and the stamps paid on the said memorandum of appeal.
Mr. Nariman has submitted that the earlier appeal no. 36 of 1981
which was an appeal against an order was -incompetent, as no appeal
lay from the said order. It is the submission of Mr. Nariman that
·the right to prefer an appeal is a cre.ature of Statute and unless the
right to prefer an appeal is conferred by law a litigant cannot prefer
any ~ppeaL Mr. Nariman submits that an order regarding instalment is not appealable under the Code and such an order cannot
also be considered to be a 'judgment' within the meaning of cl. 15
, of the Letters Patent. Mr. Nari man, therefore, contends that the
earlier appeal no. 36 of 1981 was an incompetent appeal and was,
therefore, no appeal in the eye of law and for all legal purposes was
non-est. It is the contention ·of Mr. Nariman that as the earlier
appeal no. 36 of 1981 was incompetent and non-est in the eye of law,
the filing of the appeal and its withdrawal· do not have any legal
conse,quence and cannot, in any \\lay, prejudice the right of the
defendant-appellant to prefer a proper appeal against the decree .
Mr. Nariman has next contended that notwithstanding the
amendment introduced in order .20, rule 11 of the Code providing
that the order of instalment of payment of the decretal amount has
to be incorporated in the decree, the said appeal no. 36 of the 1981
still must be held to be incompetent, Mr. Nariman argues that the
R~les of Original Side· of the High Court make provisions with
regard to drawing up of the decree and there is a time-lag between
judgment
and the drawing up of the decree. •Mr. Nariman
points out_ that as the rules of the Original Side of Hte High
Court permit filing of an appeal without a certified copy of
the decree or order, appeal no. 36 of 1981 had been filed
,
soon after the judgment had been pronounced and long before
the decree had been _drawn up, and the said order had been
filed without the certified copy of the order or the decree iri
terms of the provisions of rules of the Original Side of the High
Court .. It is the argument of Mr. l\'ariman that as the appeal no.
36 of !981 had·been filed long before the decree incorporating the
order had been drawn up, appeal l\'o. 36 of 1981 which had been
filed
only
a~ainst the order re~arding instalments
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considered to be an appeal against the order
and not against
the decree. Mr. Nariman has further argued that even if it can be
said that Appeal no. 36 of 1981 has to be considered to be an
appeal against the decree in view of the amended provisions of ·
Order 20, rule 11 of the C"de, it cannot be disputed that the
said appeal had been filed without a certified copy of the de~ree
and the said appeal had been withdrawn before any certified copy
of the decree had been filed in the said appeal, and the said appeal
must therefore be held to beno appeal in the eye of law. Mr. Nariman
submits that the later appeal no. 44 of 1981 against the decree had·
been filed in terms of the provisions contained· in the Original Side
rules of the Bombay Higli Court had the certified copy of the judgment and decree had been filed in Appeal no. 44 of 1981. . It is
Mr. Nariman's argument that appeal No. 44 of 1981 becomes a
proper and competent appeal, as the earlier appeal no. 36 of 1981
could not be considered t.o be a valid appeal in the eye of law at the
time of the withdrawal of the same in. the absence of the certified
copy being filed.
Mr. Nariman argues that though by virtue of the
provisions of the Bombay High Court Origmal Side Rules an appeal
can initially be filed without the certified copy, the certified copy the
fi'ing of which is a mandatory requirement of law has to be filed
within the period of limitation before the hearing of the appeal to
render the appeal valid and competent. Mr. Nariman in this connection has referred to the' decisions of this Court in Jagat Dhish
Bhargava v. Jawah.arlai Bhargava & Ors.(1) and Shakuntla Devi Jain
v. Kuntal Kumari & Ors.(') Mr. Neriman has further argued that
there is no provision in the Code or any other law which prevents
an appellant from preferring more than one appeal.
Relying on
the decision of this Court in Jagat. Dhish Bhargava (supra) Mr.
Nariman has submitted that where the decree consists of distinct
and severable I!"rts enforceable against the Same or SCVeral defendants, separate appeals against such distinct and severable directio.ns
or orders or provisions in a decree may be filed. It is Mr. Nariman's
argument that in the instant case, even if the ordef for instalment be
considered to be a part of the decree, the decree shall consist cif two
distinct and severable parts, (I) on the merits of the claim and (2) on
the question of payment in instalment. Mr. Nariman has next contended that the provisiOns of Order 2, rule 2 of the CivilJProcedure Code
do not in any way affect the maintainability and the merits of the
(r) [19611 2 S.C.R. 918.
(2) (1969J l S.C.R. lti06.
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RAMNAlwN (Pl LTD. v. s.T. coRPN. {A.N. Sen, J.)
37
present appeal no. 44 of 1981. He has submitted that the said
provisions have no application to an appeal and in. any event, the
cause of action and the subject matter of the present appeal are
entirely different from the cause of action and the subject of the
earlier appeal. Mr. Nariman argues that tbougb this Court in the
case of Bijoyananda Pat11aik v. S. Sahu(1) has held. that the provisions of Order 23, rule -I of the Code of Civil Procedure will be
applicable to the withdrawal of an appeal, the provisions will also
not preclude the appellant from filing the present Appeal no. 44 of
198!. It is his submission' that in considering the provisions of
order 23, rule 1, the relevant fact to be borne in mind is the subject
matter of the appeal and if the subject matter of the appeal be
different, as in the present case it is, -the earlier appeal no. 36 of
1981 being confined to the subject matter of instalment and the
subsequent appeal no. 44 of '1981 being against the decr~e on the
m"rits of the claim,-the withdrawal of the -earlier appeal cannot,
in any way, be a bar to the maintainability of the subsequent appeal.
Mr. Nariman has in this connection referred to the decision of this
Court ih Vallabhdas v. Dr. Madan Lal & Ors.(') in which this Court
equated the meaning of the words "subject matter" in order 23 rule
1 with the meaning of the words "cause ·of action" in Order 2 rule 2.
Relying on this decision, Mr. Nariman has argued that the "subject
matter" of the appeal within the meaning of Order 23, rule 1, must
be considered in _the light of the meaning of the words
·~cause of
action" .in Order 2, rule 2; and it is his· argument that as the "cause
of action" in respect of the claim for ·instalment is eutirely different
from the "cause of action" in respect of decree which embraces
withiu its fold the ·'subject matter" of the respective claims of the
parties iu the-suit, the withdrawal of the earlier appeal no. 36 of
1981 against the instalments cannot in any way affect the maintainability of the appeal no. 44 of 1981 against the decree on the merits
of the claim.
Mr. Nariman does not dispute that though the right of an
appeal is a statutory right eujoyed by a party, the party in an appropriate case may lose his right of appeal. But he submits that a vety
strong case must be made out to establish that a party has. forfieted
his right to prefer an appeal. Accordiug to Mr. Nariman, the right
(1) (1964! 2 SC.R. 539.
Fl [1971] 1 S.C.R. 21 L
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of appeal may be lost because of any provision of law and also in
appropriate cases, the parties may lose his right of appeal because
of his conduct. Mr. Nariman contends that in the instant case, the
present appeal is within time; and the provisions of the Code earlier
referred to or the provisions of any other law do not have the effect
of extinguishing the right of the appellant to prefer an appeal against
the decree. Mr. Nariman submits that the facts and circumstances
of this case cannot justifiably lead to the conclusion that the appellant
by his conduct has disentitled himself to file the present appeal
against the decree. He argues that the conduct that can be attributed to the appellant is that he prayed for instalments, filed an
appeal against the order regarding i05talments and he has withdrawn
the same.
He reiterates that if the earlier appeal against the order
regarding the instalments is held to be incompetent, the conduct of
(he appellant in withdrawing the incompetent appeal is indeed of no
consequence. Mr. Nariman argues that the prayer for instalments
is made only on the basis that if the case of the appellant is not
accepted and a decree is passed against him, the appellant may be
granted instalments to pay the decretal amount and such a prayer
when it is not known whether a decree will at all be passed against
the appellant and if so, for what amount, can never be considered
to amount to such conduct as to disentitle or preclude him from
filing an appeal against the decree.
Mr. Nariman argues that it
cannot be said that in the instant case the defendant-appellant has
elected to exercise one of two alternatives ·remedies and by virue of
such election he has deprived himself from exercising the other right,
as the defendant-appellant has both the remedies open to him and
no question of election on his part arises,
Mr. Nariman submits
that.in the facts and circumstances of this case it cannot legitimately
be held that the appellant waived his statutory right to file an appeal
against the decree and otherwise became estopped from exercising
bis right. _In this connection Mr. Nariman has referred to Halsbury's
Laws of England, 4th Edn., vol 16, paras 1471, 1472, 1473 and I474
at pages 992 to 996 which read as follows :
"1471. Waiver.-Waiver is the abandonment of a
right in such a way that the other party is entitled to
plead the abandonment by way of confession and avoid-
.. ance if the right is thereafter asserted, and is either
express or implied from conduct. It . may sometimes
resemble a form of election, and sometimes be based on
ordinary principles of estoppel, although,_unlike estoppel,
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waiver must always be, an intentional act with knowledge.
A person who is entitled to rely on a stipulation, existing
for his benefit alone, in a contract or of a statutory
provision, may waive it, and allow the contract of trans•
action to proceed as though the stipulation or provisiorf
did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is
sufficient consideration. Where the waiver is not express
it may be implied from conduct which is inconsistent
with the continuance of the right,
~ithout need for
writing or 'ror consideration moving from, or detriment
to, the party, who benefits by the waiver; bnt mere acts
of indulgence will not amount to waiver; nor can a party
benefit frqm the waiver unless he has altered his position
in reliance on it.