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Judgment
V.K. Shukla, J.—Present Second Appeal has been filed against the judgment and decree dated 25.11.2005 passed by Additional District Judge, Court No. 8, Deoria in Appeal No. 75 of 1991, arising out of judgment and decree passed in Original Suit No. 63 of 1993 Kauleshwar Singh v. Ram Bali Singh.
Brief background of the case is that the plaintiff instituted suit with the allegation that on 23.07.1976, defendant borrowed Rs. 19,200/- in cash from the plaintiff and executed pronote and receipt along with interest at the rate of Rs. 1.50% per month. The defendant did not pay even a single shell despite repeated demand, hence the suit. The defendant contested the suit with the allegations that he did not borrow any amount from the plaintiff, the pronote in the suit was without consideration. On the pleadings set out, in all seven issues were framed. The trial court, on the basis of evidence adduced, decreed the suit on 30.11.1974. Aggrieved against the said judgment and decree first appeal was preferred before this Court, and this Court on admission stage of the appeal accorded interim order. Said interim order was subsequently modified on 03.07.1975 by directing that subject to satisfaction of security, the sale in question shall not be confirmed. Subsequently, the matter was sent back to the District Judge as by that time pecuniary jurisdiction to decide the appeal had gone material change. In the said appeal, Kauleshwar Singh died on 12.06.1979. An application was moved on 26.10.1979 under Order 22 Rule 9 (2) C.P.C. along with Section 5 application in First Appeal No. 88 of 1975. Said application was supported by affidavit of Rajendra Kumar Singh. Said application after consideration was rejected on 28.03.1998 and for further action and for disposal of 10-ga and 30-ka-2, date was fixed. Thereafter, an application was moved for recall of order dated 28.03.1998, on 27.08.2003, which application was rejected on 22.09.2005. Thereafter, on 25.11.2005 order was passed mentioning therein that the appeal had already abated by virtue of order dated 28.03.1998 and no adjournment can be granted, as nothing further was required to done and record was directed to be consigned. At this juncture present second appeal has been filed.
During the pendency of second appeal in question, as auction proceedings in question had already been held, liberty had been given to the plaintiff to deposit the entire decretal amount, and till date on account of interim order sale has not been confirmed.
In the present case, Sri B.P. Singh, Senior Advocate, assisted by Sri Narendra Pratap Singh, Advocate, at the outset contended with vehemence that present second appeal is not at all competent and maintainable, as by order dated 25.11.2005 nothing has been adjudicated and it is neither judgment nor decree, and in this background, the appeal is liable to be dismissed as incompetent and not maintainable.
Countering the said submission, Sri Prakash Chandra, Advocate, on the other hand, contended that on 28.03.1998 matter had not been finally decided; final order has been passed on 25.11.2005 consigning the matter to the record, as such same amounts to judgment and decree, and in this background, present second appeal is very much competent and maintainable.
As the issue raised will go to the root of the matter, as such question of maintainability of the appeal is being looked into first. In order to appreciate the respective arguments, relevant provisions [Section 2(2), 100 and Order 43 Rule 1 (k)] of the Code of Civil Procedure, which are necessary for proper adjudication have to be looked into. They are being quoted below:
Definitions. (1)....
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation. - A decree is preliminary when further proceedings have to be undertaken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
Second Appeal.- (1) Save as otherwise expressly provided in the body of this code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed exparte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this Sub-section shall be deemed ton take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such substantial question.
ORDER XLIII
APPEALS FROM ORDERS
Appeals from orders.- (1) An appeal shall lie from the following orders under the provisions of Section 104, namely:
(a)...........
xxx xxx xxx
(k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit.
The provisions quoted above would go to show that u/s 100 C.P.C., an appeal lies to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
The appeal is thus maintainable against the decree passed in appeal by a court subordinate to the High court, and "decree" has been defined as formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Decree is not at all inclusive of an adjudication from which an appeal lies as an appeal from an order, or from any order of dismissal for default.
In the present case, it has to be seen as to whether the order, which had been passed on 25.11.2005 is, in fact, an adjudication of dispute interse parties or not. The background of the case clearly reflects that in the first appeal in question, which was pending, on account of death of Kauleshwar Singh on 12.06.1979, application under Order 22 Rule 9 (2) C.P.C. was moved on 26.10.1979 and said application was rejected on 28.03.1998. Against the said order dated 28.03.1998 rejecting the application under Order 22 Rule 9(2) C.P.C. specific provision of first appeal from order has been provided for under Order 43 Rule 1 (k) of the Code, which clearly provides that an appeal shall lie from an order, where an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit is passed.
The appellant at no point of time proceeded to question the validity of the order dated 28.03.1998 by filing first appeal from order under Order 43 Rule 1 (k) of the Code and permitted the said order to attain finality. The application to recall said order was moved on 27.08.2003 and same was rejected on 22.09.2005. Thereafter, order was passed on 25.11.2005, reiterating therein that order of abatement is there, as such record is consigned, against which present second appeal has been filed. Thus, non-filing of first appeal from order against order dated 28.03.1998 under Order 43 Rule 1 (k) of the Code, allowed the order dated 28.03.1998 to attain finality, and as per definition of "decree" defined u/s 2(2), as from rejection of application for setting aside abatement under Order 22 Rule 9 (2), the appeal provided for has not been preferred, as such the order dated 25.11.2005 being nothing in itself but reiteration of the earlier order of abatement not being set aside, will not fall within the meaning of "decree".
From the side of appellant, reliance has been placed on the judgment of this Court in the case of Mahboob Hasan Khan and Others Vs. Syed Bashir Husain and Others, and on the judgment of Gujrat High Court AIR 1963 Guj Patel Dayabhai Mathurabhai v. Dolia Bhai Shankar Pitamber for the proposition, that against an order refusing to set aside abatement of appeal, no appeal ,lies. The judgment cited cannot be said to be laying down good law, in view of the judgment of Hon''ble Apex Court in the case of Madan Naik (Dead) by Legal Representatives and Others Vs. Hansubala Devi and Others, wherein Hon''ble Apex Court took the view that abatement of appeal for want of substitution does not imply adjudication on merits, therefore, when appeal abates, there is no decree disposing of appeal and the only remedy available is to apply for setting aside of abatement, and against its refusal, there is specific remedy of appeal. Relevant extract of the said judgments contained in paragraphs 8, 9 and 11 is excerpted below:
Section 2 Sub-section (2) of the Civil P.C. defines ''decree'' to mean "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144 but shall not include any adjudication from which an appeal lies as an appeal from an order". When an appeal abates for want of substitution as envisaged by Sub-rule (1) of Rule 9 of Order 22 it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits, Section 11 of C.P.C. would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 9 (1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing of the first appeal, only course open is to move the Court for setting aside abatement. An order under Order 22, Rule 9 (2) C.P.C. refusing to set aside abatement is specifically appealable under Order 43, Rule 1 (k). Such an adjudication if it can be so styled would not be a decree as defined in Section 2(2), C.P.C. Section 100 provides for second appeal to the High Court from every decree passed in appeal by any Court subordinate to the High Court on the grounds therein set out. What is worthy of notice is that second appeal lies against a decree passed in appeal. An order under Order 22, Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent.
It would thus appear that the second appeal preferred by the original defendants was incompetent. But the appeal from order refusing to set aside abatement was competent. If the second appeal was incompetent, its dismissal cannot have any impact on the disposal on merits of the appeal from order, and that was rightly done by the learned single Judge. The learned single Judge admitted the appeal from order and dismissed the second appeal. In fact, in order to avoid this prolonged litigation up to this Court it could have been mentioned that the second appeal is dismissed as incompetent or as having became infructuous as the appeal from order was preferred. In any event, the legal position would not change merely because an incompetent second appeal was preferred which came up for hearing and was dismissed in the circumstances clearly showing that it was dismissed as incompetent. It could have no impact on merits or validity of the decision of the learned single Judge in the appeal from order.
After the learned single Judge allowed the appeal from order and remitted the case to the first appellate Court, original plaintiffs preferred. Letters Patent Appeal Frankly speaking, no appeal would lie under Letters Patent against a decision rendered by the High Court in an appeal from order under Order 43, Rule 1. This is one good ground to quash the decision of the High Court in Letters Patent Appeal. But assuming without deciding that Letters Patent appeal was competent, even on merits the High Court was not justified in interfering with the decision of the learned single Judge. The Division Bench hearing the Letters Patent Appeal was clearly in error in holding that the dismissal of the second appeal had rendered the appeal from order infructuous. We are unable to appreciate how this conclusion is arrived at by the High Court and it is wholly unsustainable.
The case in hand is nearer to the facts of the aforesaid case, as in the present case also appeal has already abated by operation of law and the application to set aside abatement had been rejected on 28.03.1998, against which order at no point of time any first appeal from order, as envisaged under Order 43 Rule 1 (k) C.P.C., had ever been preferred and the order dated 28.03.1998 attained finality. The order dated 25.11.2005 only reiterates the said order, then it cannot be said that the order dated 25.11.2005 contains any adjudication on merits.
Hon''ble Apex Court in the case of S. Satnam Singh and Others Vs. Surender Kaur and Another, has taken the view that the court with a view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading up to the passing of an order and the circumstances under which an order had been made would also be relevant. Relevant extracts as contained in paragraphs 15 and 16 of the said judgment is excerpted below:
A "decree" is defined in Section 2(2) of the CPC to mean:
2 (2) ...the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
It may be partly preliminary and partly final. The court with a view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading up to the passing of an order and the circumstances under which an order had been made would also be relevant. 16.For determining the question as to whether an order passed by a court is a decree or not, it must satisfy the following tests:
(i) There must be an adjudication;
(ii) Such adjudication must have been given in a suit;
(iii) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit;
(iv) Such determination must be of a conclusive nature; and
(v) There must be a formal expression of such adjudication.
On the parameters as set out in the above judgments of Hon''ble Apex Court, and already discussed in the present case, the order dated 25.11.2005 clearly shows that no adjudication had been done, rather on the basis of earlier decision taken i.e. refusing to set aside abatement formal order had been passed directing consignment of record, as continuation of proceeding was nothing but an exercise in futility. The order dated 25.11.2005 in the facts of the case, by no stretch of imagination, can be termed to be a decree, as same involves no adjudication, and there is no formal expression of any adjudication, rather, it merely reiterates the background of the order by means of which appeal had already been abated, and on account of which records have been consigned. The order dated 25.11.2005 does not contain the ingredients of a judgment and decree, as such present second appeal is not maintainable.
Much stress has been laid from the side of the appellant on the fact that in the present case under the interim order of this Court decretal amount in question has been deposited, sale in question has not been confirmed and appellant intents to satisfy the decree. Serious dispute has been raised in respect of deposit of decretal amount, and it has also been contended that since the interim order was passed, as such till date the sale in question has not been confirmed, and in the facts of case compensatory cost, should also be awarded. Validity of the execution proceeding is not before this Court. Once view has been taken that second appeal is incompetent and not maintainable, then no further orders can be passed and directions be issued, as it would be total transgression and usurpation of jurisdiction.
Consequently, present second appeal is dismissed. Interim order, if any, stands discharged.