This Court has clearly stated
that if a person is prejudicially or adversely affected
by the decree, he can maintain an appeal. In the
present case, as we find, the plaintiff claiming to be a
co-sharer filed the suit and challenged the will. The
defendant No. 5, the brother of the plaintiff,
supported his case. In an appeal at the instance of
the defendant Nos. 1 to 4, the judgment and decree
was overturned. The plaintiff entered into a
settlement with the contesting defendants who had
preferred the appeal. Such a decree, we are
disposed to think, prejudicially affects the defendant
No. 5 and, therefore, he could have preferred an
appeal. It is worthy to note that the grievance
pertained to the nature and character of the property
and the trial court had decreed the suit. He stood
benefited by such a decree. The same having been
unsettled, the benefit accrued in his favour became
extinct. It needs no special emphasis to state that he
had suffered a legal injury by virtue of the over
turning of the decree. His legal right has been
affected. In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan
v. The State of Maharashtra & ors.
2012 (11) SCALE 39wherein this
Court has held thus: -
“A “legal right”, means an entitlement
arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit
conferred upon a person by the rule of law.
The expression, “person aggrieved” does
not include a person who suffers from a
psychological or an imaginary injury; a
person aggrieved must therefore,
necessarily be one, whose right or interest
has been adversely affected or
jeopardized. (Vide: Shanti Kumar R. Chanji
v. Home Insurance Co. of New York, AIR
1974 SC 1719; and State of Rajasthan &
Ors. v. Union of India & ors., AIR 1977 SC
1361).”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 102 OF 2013
(Arising out of S.L.P. (C) No. 35271 of 2011)
Hardevinder Singh Vs Paramjit Singh
Dated:January 07, 2013
Dipak Misra, J.
Citation: (2013) 9 SCC 261: 2013 KHC 4017.
Leave granted.
2. One Sarabjit Singh filed Civil Suit No. 29 of 1995 for
possession of the suit land to the extent of his share
treating the will alleged to have been executed in
favour of the defendant Nos. 1 to 4 as null and void
with the consequential prayer for restraining them
from alienating the suit property in any manner. It
was set forth in the plaint that the suit land in the
hands of his father, Shiv Singh, was ancestral
coparcenary and Joint Hindu Family property and he,
along with his brothers, the defendant Nos. 5 and 6,
constituted a Joint Hindu Family with the father and
mother. It was alleged that the defendant Nos. 1 to
4, on the basis of a forged will, forcibly took
possession of the land. It was set forth that by virtue
of the will, the plaintiff and the defendant Nos. 5 and
6, the co-owners, have been deprived of the legal
rights in the suit land. It was the case of the plaintiff
that the will was not executed voluntarily by his
father, Shiv Singh, and it was a forged one and,
therefore, no right could flow in favour of the said
defendants.
3. The defendant Nos. 1 to 4 entered contest and
supported the execution of the will on the basis that
it was voluntary and without any pressure or
coercion. That apart, it was contended that the
rights of defendant No. 5 had not been affected as a
registered gift was executed on 31.3.1980 by late
Shiv Singh. The claim of the plaintiff was strongly
disputed on the ground that the will had already
been worked out since the revenue records had been
corrected. The defendant No. 6 resisted the stand of
the plaintiff contending, inter alia, that the property
was self-acquired and the execution of the will was
absolutely voluntary. The defendant No. 5 filed an
independent written statement admitting the claim of
the plaintiff. It was set forth by him that the suit land
was ancestral, a Joint Hindu Coparcenary property
and his father Shiv Singh, being the Karta, had no
right to bequeath the same in favour of defendant
Nos. 1 to 4 to the exclusion of the other rightful
owners. That apart, it was contended that the will
was vitiated by fraud. A prayer was made to put him
in possession of the suit land after carving out his
share.
4. The learned trial Judge framed as many as four
issues. The plaintiff examined himself as PW-1 and
tendered number of documents in evidence which
were marked as Exts. P-1 to P-17. The defendant
Nos. 1 to 4 examined number of witnesses and got
seven documents exhibited. The defendant No.5
supported the evidence led by the plaintiff. In
rebuttal, the plaintiff examined the Record Keeper of
Medical College Rohtak as PW-2 and Dr. A.K. Verma
as PW-3 and brought on record four forms, Exts. P-18
to P-19A. The learned trial Judge, on appreciation of
the evidence brought on record, came to hold that
the suit land was a Joint Hindu Family property; that
defendant Nos. 1 to 4 had failed to dispel the
suspicious circumstances in the execution of the will
in favour of defendant Nos. 1 to 4 and, hence, the will
was null and void; that the mutation did not create
any impediment on the rights of the plaintiff and
other natural heirs of the testator; and that they are
entitled to get joint possession of the suit land as per
their shares in accordance with the law of natural
succession.
5. On an appeal being preferred by the three
beneficiaries of the will (as the original defendant No.
1 had died), the learned appellate Judge came to
hold that the property held by Shiv Singh, the
predecessor-in-interest of the parties to the suit, was
not ancestral, but self-acquired and, hence, he was
competent to alienate the same in any manner as he
liked; that the will dated 6.7.1989, Exh. D-2, in favour
of original defendant No. 1, his wife who had expired
by the time the appeal was filed and the defendant
Nos. 2 to 4, his grandsons, was validly executed and
that the finding recorded by the learned trial Judge
on that score was unsustainable. Be it noted, the
learned appellate Judge took note of the fact that
Sarabjit Singh had challenged the said will but, on
account of settlement with the appellants before the
appellate court, had practically withdrawn from the
litigation. Being of this view, he set aside the
judgment and decree passed by the learned trial
Judge and dismissed the suit with costs.
6. The defendant No. 5 preferred R.S.A. No. 85 of 2007
before the High Court. The learned single Judge,
upon hearing the learned counsel for the parties and
placing reliance on Smt. Ganga Bai v. Vijay
Kumar and others1
and Banarsi and others v.
Ram Phal2
, came to hold that the appeal was not
maintainable at the instance of defendant No. 5
under Section 100 of the Code of Civil Procedure,
1908 (for short “the Code”).
7. We have heard Mr. Vipin Gogia, learned counsel for
the appellant, and Mr. K.K. Mohan, learned counsel
appearing for the respondents.
8. At the very outset, we must state that the High Court
has accepted the preliminary objections raised by the
respondents as regards the maintainability of the
appeal. While accepting the preliminary objection,
the High Court has opined that the plaintiff and the
defendant Nos. 1 to 4 and 6 had accepted the
judgment and decree; that the defendant No. 5
cannot be regarded as an aggrieved party to assail
the impugned decree invoking the jurisdiction of the
High Court under Section 100 of the Code; that
appeal being a creature of the statute, the right to
appeal inheres in one and it stands in a distinct
1
AIR 1974 SC 1126
2
AIR 2003 SC 1989
position than that of a suit and, hence, no appeal
could lie against a mere finding for the simple reason
that the Code does not provide for such an appeal;
and that the suit having been dismissed by virtue of
the dislodging of the decree by the first appellate
court, the regular second appeal could not be filed by
the defendant No. 5. Hence, the present appeal by
the said defendant-appellant.
9. As indicated earlier, to arrive at such a conclusion,
reliance was placed on the decision in Smt. Ganga
Bai v. Vijay Kumar and others (supra) wherein a
distinction was drawn between the inherent right to
file a suit unless the suit is statutorily barred and the
limitations in maintaining an appeal. In that case,
the defendant Nos. 2 and 3 had preferred an appeal
before the High Court challenging the finding
recorded by the trial court. Thereafter, a challenge
was made partly to the preliminary decree. This
Court took note of the fact that the appeal preferred
by the said defendants was directed originally not
against any part of the preliminary decree but
against a mere finding recorded by the trial court
that the partition was not genuine. It was observed
by this Court that to maintain an appeal, it requires
authority of law. After referring to Sections 96(1),
100, 104(1) and 105 of the Code, the Bench observed
as follows: -
“17. 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 1.
No appeal can lie against a mere finding
for the simple reason that the Code does
not provide for any such appeal. It must
follow that First 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.”
10. Thereafter, the Court opined that the High Court
mixed up two distinct issues, namely, (i) whether the
defendants 2 and 3 were competent to file an appeal
if they were aggrieved by the preliminary decree and
(ii) whether the appeal as filed by them was
maintainable. It was opined that if the 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 as they
had not filed an appeal against the preliminary
decree, the question whether they were aggrieved by
that decree and could file an appeal therefrom was
irrelevant. The Bench held that the appeal was
directed against the finding given by the trial court
which was against them, hence, it was not
maintainable. Be it noted, this Court also addressed
with regard to the issue whether defendant Nos. 2
and 3 were aggrieved by the preliminary decree and
opined that the appeal was against a mere finding
and the preliminary decree, in fact, remained
unchallenged for a long period.
11. Another aspect which was addressed by the Bench
was whether the finding would operate as res
judicata in the subsequent proceeding. This Court
observed that 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 would 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. That apart, the matter
relating to the partition being not directly and
substantially in issue in the suit, the finding that the
partition was sham could not operate as res judicata
so as to preclude a party aggrieved by the finding
from agitating the question covered by the finding in
any other proceeding.
12. On a keen scrutiny of the facts of the aforesaid case
and the dictum laid down therein, in our considered
opinion, it does not really apply to the case at hand,
regard being had to the obtaining factual matrix and
further, the decision was rendered before the
amendment was brought into the Code prior to 1976.
Therefore, we have no hesitation in saying that the
High Court has fallen into error in placing reliance on
the said pronouncement.
13. Presently, it is apt to note that Sections 96 and 100
of the Code make provisions for preferring an appeal
from any original appeal or from a decree in an
appeal respectively. The aforesaid provisions do not
enumerate the categories of persons who can file an
appeal. If a judgment and decree prejudicially
affects a person, needless to emphasize, he can
prefer an appeal. In this context, a passage from
Smt. Jatan Kanwar Golcha v. M/s. Golcha
Properties Private Ltd.3
is worth noting: -
“It is well settled that a person who is not a
party to the suit may prefer an appeal with
the leave of the appellate Court and such
leave should be granted if he would be
prejudicially affected by the judgment.”
14. In State of Punjab v. Amar Singh and another4
,
Sarkaria, J., while dealing with the maintainability of
an appeal by a person who is not a party to a decree
or order, has stated thus: -
“84. Firstly there is a catena of authorities
which, following the doctrine of Lindley,
L.J., in re Securities Insurance Co., (1894) 2
Ch 410 have laid down the rule that a
person who is not a party to a decree or
order may with the leave of the Court,
prefer an appeal from such decree or order
if he is either bound by the order or is
aggrieved by it or is prejudicially affected
by it. As a rule, leave to appeal will not be
refused to a person who might have been
made ex nominee a party – see Province of
Bombay v. W.I. Automobile Association,
3
AIR 1971 SC 374
4
AIR 1974 SC 994
11Page 12
AIR 1949 Bom 141; Heera Singh v. Veerka,
AIR 1958 Raj 181 and Shivaraya v.
Siddamma, AIR 1963 Mys 127; Executive
Officer v. Raghavan Pillai, AIR 1961 Ker
114. In re B, an Infant (1958) QB 12;
Govinda Menon v. Madhavan Nair, AIR
1964 Ker 235.”
15. In Baldev Singh v. Surinder Mohan Sharma and
others5
, a three Judge-Bench opined that an appeal
under Section 96 of the Code would be maintainable
only at the instance of a person aggrieved by and
dissatisfied with the judgment and decree. In the
said case, while dealing with the concept of ‘person
aggrieved’, the Bench observed thus:-
“A person aggrieved to file an appeal must
be one whose right is affected by reason or
the judgment and decree sought to be
impugned. It is not the contention of
Respondent 1 that in the event the said
judgment and decree is allowed to stand,
the same will cause any personal injury to
him or shall affect his interest otherwise.”
16. Be it noted, in the said case, the challenge in appeal
was to the dissolution of marriage of the appellant
therein and his first wife which, this Court held, would
have no repercussion on the property in the suit and,
therefore, the High Court was not justified in
5
(2003) 1 SCC 34
disposing of the civil revision with the observation
that the revisionist could prefer an appeal.
17. In Sahadu Gangaram Bhagade v. Special
Deputy Collector, Ahmednagar and another6
, it
was observed that the right given to a respondent in
an appeal is to challenge the order under appeal to
the extent he is aggrieved by that order. The
memorandum of cross-objection is but one form of
appeal. It takes the place of a cross appeal. In the
said decision, emphasis was laid on the term
‘decree’.
18. After the 1976 amendment of Order 41 Rule 22, the
insertion made in sub-rule (1) makes it permissible to
file a cross-objection against a finding. The
difference is basically that a respondent may defend
himself without taking recourse to file a crossobjection
to the extent the decree stands in his
favour, but if he intends to assail any part of the
decree, it is obligatory on his part to file the crossobjection.
In Banarsi and Others v. Ram Phal
6
(1970) 1 SCC 685
(supra), it has been observed that the amendment
inserted in 1976 is clarificatory and three situations
have been adverted to therein. Category No. 1 deals
with the impugned decree which is partly in favour of
the appellant and partly in favour of the respondent.
Dealing with such a situation, the Bench observed
that in such a case, it is necessary for the respondent
to file an appeal or take cross-objection against that
part of the decree which is against him if he seeks to
get rid of the same though he is entitled to support
that part of the decree which is in his favour without
taking any cross-objection. In respect of two other
categories which deal with a decree entirely in favour
of the respondent though an issue had been decided
against him or a decree entirely in favour of the
respondent where all the issues had been answered
in his favour but there is a finding in the judgment
which goes against him, in the pre-amendment
stage, he could not take any cross-objection as he
was not a person aggrieved by the decree. But postamendment,
read in the light of explanation to sub-
rule (1), though it is still not necessary for the
respondent to take any cross-objection laying
challenge to any finding adverse to him as the
decree is entirely in his favour, yet he may support
the decree without cross-objection. It gives him the
right to take cross-objection to a finding recorded
against him either while answering an issue or while
dealing with an issue. It is apt to note that after the
amendment in the Code, if the appeal stands
withdrawn or dismissed for default, the crossobjection
taken to a finding by the respondent would
still be adjudicated upon on merits which remedy was
not available to the respondent under the
unamended Code.
19. At this juncture, we may usefully reproduce a
passage from Banarsi and others (supra) wherein it
has been stated thus: -
“Sections 96 and 100 CPC make provision
for an appeal being preferred from every
original decree or from every decree
passed in appeal respectively; none of the
provisions enumerates the person who can
file an appeal. However, it is settled by a
long catena of decisions that to be entitled
to file an appeal the person must be one
aggrieved by the decree. Unless a person
is prejudicially or adversely affected by the
decree he is not entitled to file an appeal.
See Phoolchand v. Gopal Lal7
, Jatan Kumar
Golcha v. Golcha Properties (P) Ltd. (supra)
and Ganga Bai v. Vijay Kumar (supra).) No
appeal lies against a mere finding. It is
significant to note that both Sections 96
and 100 CPC provide for an appeal against
decree and not against judgment.”
20. Though the High Court has referred to the said
pronouncement, yet it has not applied the ratio
correctly to the facts. This Court has clearly stated
that if a person is prejudicially or adversely affected
by the decree, he can maintain an appeal. In the
present case, as we find, the plaintiff claiming to be a
co-sharer filed the suit and challenged the will. The
defendant No. 5, the brother of the plaintiff,
supported his case. In an appeal at the instance of
the defendant Nos. 1 to 4, the judgment and decree
was overturned. The plaintiff entered into a
settlement with the contesting defendants who had
preferred the appeal. Such a decree, we are
disposed to think, prejudicially affects the defendant
No. 5 and, therefore, he could have preferred an
7
AIR 1967 SC 1470
appeal. It is worthy to note that the grievance
pertained to the nature and character of the property
and the trial court had decreed the suit. He stood
benefited by such a decree. The same having been
unsettled, the benefit accrued in his favour became
extinct. It needs no special emphasis to state that he
had suffered a legal injury by virtue of the over
turning of the decree. His legal right has been
affected. In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan
v. The State of Maharashtra & ors.8 wherein this
Court has held thus: -
“A “legal right”, means an entitlement
arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit
conferred upon a person by the rule of law.
The expression, “person aggrieved” does
not include a person who suffers from a
psychological or an imaginary injury; a
person aggrieved must therefore,
necessarily be one, whose right or interest
has been adversely affected or
jeopardized. (Vide: Shanti Kumar R. Chanji
v. Home Insurance Co. of New York, AIR
1974 SC 1719; and State of Rajasthan &
Ors. v. Union of India & ors., AIR 1977 SC
1361).”
8
2012 (11) SCALE 39
21. Though the said judgment was delivered in a
different context, yet it is applicable to the obtaining
factual matrix regard being had to the conception of
legal injury. Thus, indubitably, the present appellant
was a person aggrieved and was prejudicially
affected by the decree and, hence, the appeal could
not have been thrown overboard treating as not
maintainable.
22. In view of the aforesaid premised reasons, we allow
the appeal, set aside the judgment of the High Court,
treat the second appeal preferred by the present
appellant to be maintainable in law and remit the
matter to the High Court with a request to decide the
appeal within a period of six months. Needless to
say, we have not expressed any opinion on any of
the aspects which pertain to the merits of the case.
In the facts and circumstances of the case, the
parties shall bear their respective costs.
……………………………….J.
[K. S. Radhakrishnan]
18Page 19
……………………………….J.
[Dipak Misra]
New Delhi;
January 07, 2013
Print Page
that if a person is prejudicially or adversely affected
by the decree, he can maintain an appeal. In the
present case, as we find, the plaintiff claiming to be a
co-sharer filed the suit and challenged the will. The
defendant No. 5, the brother of the plaintiff,
supported his case. In an appeal at the instance of
the defendant Nos. 1 to 4, the judgment and decree
was overturned. The plaintiff entered into a
settlement with the contesting defendants who had
preferred the appeal. Such a decree, we are
disposed to think, prejudicially affects the defendant
No. 5 and, therefore, he could have preferred an
appeal. It is worthy to note that the grievance
pertained to the nature and character of the property
and the trial court had decreed the suit. He stood
benefited by such a decree. The same having been
unsettled, the benefit accrued in his favour became
extinct. It needs no special emphasis to state that he
had suffered a legal injury by virtue of the over
turning of the decree. His legal right has been
affected. In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan
v. The State of Maharashtra & ors.
2012 (11) SCALE 39wherein this
Court has held thus: -
“A “legal right”, means an entitlement
arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit
conferred upon a person by the rule of law.
The expression, “person aggrieved” does
not include a person who suffers from a
psychological or an imaginary injury; a
person aggrieved must therefore,
necessarily be one, whose right or interest
has been adversely affected or
jeopardized. (Vide: Shanti Kumar R. Chanji
v. Home Insurance Co. of New York, AIR
1974 SC 1719; and State of Rajasthan &
Ors. v. Union of India & ors., AIR 1977 SC
1361).”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 102 OF 2013
(Arising out of S.L.P. (C) No. 35271 of 2011)
Hardevinder Singh Vs Paramjit Singh
Dated:January 07, 2013
Dipak Misra, J.
Citation: (2013) 9 SCC 261: 2013 KHC 4017.
Leave granted.
2. One Sarabjit Singh filed Civil Suit No. 29 of 1995 for
possession of the suit land to the extent of his share
treating the will alleged to have been executed in
favour of the defendant Nos. 1 to 4 as null and void
with the consequential prayer for restraining them
from alienating the suit property in any manner. It
was set forth in the plaint that the suit land in the
hands of his father, Shiv Singh, was ancestral
coparcenary and Joint Hindu Family property and he,
along with his brothers, the defendant Nos. 5 and 6,
constituted a Joint Hindu Family with the father and
mother. It was alleged that the defendant Nos. 1 to
4, on the basis of a forged will, forcibly took
possession of the land. It was set forth that by virtue
of the will, the plaintiff and the defendant Nos. 5 and
6, the co-owners, have been deprived of the legal
rights in the suit land. It was the case of the plaintiff
that the will was not executed voluntarily by his
father, Shiv Singh, and it was a forged one and,
therefore, no right could flow in favour of the said
defendants.
3. The defendant Nos. 1 to 4 entered contest and
supported the execution of the will on the basis that
it was voluntary and without any pressure or
coercion. That apart, it was contended that the
rights of defendant No. 5 had not been affected as a
registered gift was executed on 31.3.1980 by late
Shiv Singh. The claim of the plaintiff was strongly
disputed on the ground that the will had already
been worked out since the revenue records had been
corrected. The defendant No. 6 resisted the stand of
the plaintiff contending, inter alia, that the property
was self-acquired and the execution of the will was
absolutely voluntary. The defendant No. 5 filed an
independent written statement admitting the claim of
the plaintiff. It was set forth by him that the suit land
was ancestral, a Joint Hindu Coparcenary property
and his father Shiv Singh, being the Karta, had no
right to bequeath the same in favour of defendant
Nos. 1 to 4 to the exclusion of the other rightful
owners. That apart, it was contended that the will
was vitiated by fraud. A prayer was made to put him
in possession of the suit land after carving out his
share.
4. The learned trial Judge framed as many as four
issues. The plaintiff examined himself as PW-1 and
tendered number of documents in evidence which
were marked as Exts. P-1 to P-17. The defendant
Nos. 1 to 4 examined number of witnesses and got
seven documents exhibited. The defendant No.5
supported the evidence led by the plaintiff. In
rebuttal, the plaintiff examined the Record Keeper of
Medical College Rohtak as PW-2 and Dr. A.K. Verma
as PW-3 and brought on record four forms, Exts. P-18
to P-19A. The learned trial Judge, on appreciation of
the evidence brought on record, came to hold that
the suit land was a Joint Hindu Family property; that
defendant Nos. 1 to 4 had failed to dispel the
suspicious circumstances in the execution of the will
in favour of defendant Nos. 1 to 4 and, hence, the will
was null and void; that the mutation did not create
any impediment on the rights of the plaintiff and
other natural heirs of the testator; and that they are
entitled to get joint possession of the suit land as per
their shares in accordance with the law of natural
succession.
5. On an appeal being preferred by the three
beneficiaries of the will (as the original defendant No.
1 had died), the learned appellate Judge came to
hold that the property held by Shiv Singh, the
predecessor-in-interest of the parties to the suit, was
not ancestral, but self-acquired and, hence, he was
competent to alienate the same in any manner as he
liked; that the will dated 6.7.1989, Exh. D-2, in favour
of original defendant No. 1, his wife who had expired
by the time the appeal was filed and the defendant
Nos. 2 to 4, his grandsons, was validly executed and
that the finding recorded by the learned trial Judge
on that score was unsustainable. Be it noted, the
learned appellate Judge took note of the fact that
Sarabjit Singh had challenged the said will but, on
account of settlement with the appellants before the
appellate court, had practically withdrawn from the
litigation. Being of this view, he set aside the
judgment and decree passed by the learned trial
Judge and dismissed the suit with costs.
6. The defendant No. 5 preferred R.S.A. No. 85 of 2007
before the High Court. The learned single Judge,
upon hearing the learned counsel for the parties and
placing reliance on Smt. Ganga Bai v. Vijay
Kumar and others1
and Banarsi and others v.
Ram Phal2
, came to hold that the appeal was not
maintainable at the instance of defendant No. 5
under Section 100 of the Code of Civil Procedure,
1908 (for short “the Code”).
7. We have heard Mr. Vipin Gogia, learned counsel for
the appellant, and Mr. K.K. Mohan, learned counsel
appearing for the respondents.
8. At the very outset, we must state that the High Court
has accepted the preliminary objections raised by the
respondents as regards the maintainability of the
appeal. While accepting the preliminary objection,
the High Court has opined that the plaintiff and the
defendant Nos. 1 to 4 and 6 had accepted the
judgment and decree; that the defendant No. 5
cannot be regarded as an aggrieved party to assail
the impugned decree invoking the jurisdiction of the
High Court under Section 100 of the Code; that
appeal being a creature of the statute, the right to
appeal inheres in one and it stands in a distinct
1
AIR 1974 SC 1126
2
AIR 2003 SC 1989
position than that of a suit and, hence, no appeal
could lie against a mere finding for the simple reason
that the Code does not provide for such an appeal;
and that the suit having been dismissed by virtue of
the dislodging of the decree by the first appellate
court, the regular second appeal could not be filed by
the defendant No. 5. Hence, the present appeal by
the said defendant-appellant.
9. As indicated earlier, to arrive at such a conclusion,
reliance was placed on the decision in Smt. Ganga
Bai v. Vijay Kumar and others (supra) wherein a
distinction was drawn between the inherent right to
file a suit unless the suit is statutorily barred and the
limitations in maintaining an appeal. In that case,
the defendant Nos. 2 and 3 had preferred an appeal
before the High Court challenging the finding
recorded by the trial court. Thereafter, a challenge
was made partly to the preliminary decree. This
Court took note of the fact that the appeal preferred
by the said defendants was directed originally not
against any part of the preliminary decree but
against a mere finding recorded by the trial court
that the partition was not genuine. It was observed
by this Court that to maintain an appeal, it requires
authority of law. After referring to Sections 96(1),
100, 104(1) and 105 of the Code, the Bench observed
as follows: -
“17. 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 1.
No appeal can lie against a mere finding
for the simple reason that the Code does
not provide for any such appeal. It must
follow that First 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.”
10. Thereafter, the Court opined that the High Court
mixed up two distinct issues, namely, (i) whether the
defendants 2 and 3 were competent to file an appeal
if they were aggrieved by the preliminary decree and
(ii) whether the appeal as filed by them was
maintainable. It was opined that if the 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 as they
had not filed an appeal against the preliminary
decree, the question whether they were aggrieved by
that decree and could file an appeal therefrom was
irrelevant. The Bench held that the appeal was
directed against the finding given by the trial court
which was against them, hence, it was not
maintainable. Be it noted, this Court also addressed
with regard to the issue whether defendant Nos. 2
and 3 were aggrieved by the preliminary decree and
opined that the appeal was against a mere finding
and the preliminary decree, in fact, remained
unchallenged for a long period.
11. Another aspect which was addressed by the Bench
was whether the finding would operate as res
judicata in the subsequent proceeding. This Court
observed that 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 would 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. That apart, the matter
relating to the partition being not directly and
substantially in issue in the suit, the finding that the
partition was sham could not operate as res judicata
so as to preclude a party aggrieved by the finding
from agitating the question covered by the finding in
any other proceeding.
12. On a keen scrutiny of the facts of the aforesaid case
and the dictum laid down therein, in our considered
opinion, it does not really apply to the case at hand,
regard being had to the obtaining factual matrix and
further, the decision was rendered before the
amendment was brought into the Code prior to 1976.
Therefore, we have no hesitation in saying that the
High Court has fallen into error in placing reliance on
the said pronouncement.
13. Presently, it is apt to note that Sections 96 and 100
of the Code make provisions for preferring an appeal
from any original appeal or from a decree in an
appeal respectively. The aforesaid provisions do not
enumerate the categories of persons who can file an
appeal. If a judgment and decree prejudicially
affects a person, needless to emphasize, he can
prefer an appeal. In this context, a passage from
Smt. Jatan Kanwar Golcha v. M/s. Golcha
Properties Private Ltd.3
is worth noting: -
“It is well settled that a person who is not a
party to the suit may prefer an appeal with
the leave of the appellate Court and such
leave should be granted if he would be
prejudicially affected by the judgment.”
14. In State of Punjab v. Amar Singh and another4
,
Sarkaria, J., while dealing with the maintainability of
an appeal by a person who is not a party to a decree
or order, has stated thus: -
“84. Firstly there is a catena of authorities
which, following the doctrine of Lindley,
L.J., in re Securities Insurance Co., (1894) 2
Ch 410 have laid down the rule that a
person who is not a party to a decree or
order may with the leave of the Court,
prefer an appeal from such decree or order
if he is either bound by the order or is
aggrieved by it or is prejudicially affected
by it. As a rule, leave to appeal will not be
refused to a person who might have been
made ex nominee a party – see Province of
Bombay v. W.I. Automobile Association,
3
AIR 1971 SC 374
4
AIR 1974 SC 994
11Page 12
AIR 1949 Bom 141; Heera Singh v. Veerka,
AIR 1958 Raj 181 and Shivaraya v.
Siddamma, AIR 1963 Mys 127; Executive
Officer v. Raghavan Pillai, AIR 1961 Ker
114. In re B, an Infant (1958) QB 12;
Govinda Menon v. Madhavan Nair, AIR
1964 Ker 235.”
15. In Baldev Singh v. Surinder Mohan Sharma and
others5
, a three Judge-Bench opined that an appeal
under Section 96 of the Code would be maintainable
only at the instance of a person aggrieved by and
dissatisfied with the judgment and decree. In the
said case, while dealing with the concept of ‘person
aggrieved’, the Bench observed thus:-
“A person aggrieved to file an appeal must
be one whose right is affected by reason or
the judgment and decree sought to be
impugned. It is not the contention of
Respondent 1 that in the event the said
judgment and decree is allowed to stand,
the same will cause any personal injury to
him or shall affect his interest otherwise.”
16. Be it noted, in the said case, the challenge in appeal
was to the dissolution of marriage of the appellant
therein and his first wife which, this Court held, would
have no repercussion on the property in the suit and,
therefore, the High Court was not justified in
5
(2003) 1 SCC 34
disposing of the civil revision with the observation
that the revisionist could prefer an appeal.
17. In Sahadu Gangaram Bhagade v. Special
Deputy Collector, Ahmednagar and another6
, it
was observed that the right given to a respondent in
an appeal is to challenge the order under appeal to
the extent he is aggrieved by that order. The
memorandum of cross-objection is but one form of
appeal. It takes the place of a cross appeal. In the
said decision, emphasis was laid on the term
‘decree’.
18. After the 1976 amendment of Order 41 Rule 22, the
insertion made in sub-rule (1) makes it permissible to
file a cross-objection against a finding. The
difference is basically that a respondent may defend
himself without taking recourse to file a crossobjection
to the extent the decree stands in his
favour, but if he intends to assail any part of the
decree, it is obligatory on his part to file the crossobjection.
In Banarsi and Others v. Ram Phal
6
(1970) 1 SCC 685
(supra), it has been observed that the amendment
inserted in 1976 is clarificatory and three situations
have been adverted to therein. Category No. 1 deals
with the impugned decree which is partly in favour of
the appellant and partly in favour of the respondent.
Dealing with such a situation, the Bench observed
that in such a case, it is necessary for the respondent
to file an appeal or take cross-objection against that
part of the decree which is against him if he seeks to
get rid of the same though he is entitled to support
that part of the decree which is in his favour without
taking any cross-objection. In respect of two other
categories which deal with a decree entirely in favour
of the respondent though an issue had been decided
against him or a decree entirely in favour of the
respondent where all the issues had been answered
in his favour but there is a finding in the judgment
which goes against him, in the pre-amendment
stage, he could not take any cross-objection as he
was not a person aggrieved by the decree. But postamendment,
read in the light of explanation to sub-
rule (1), though it is still not necessary for the
respondent to take any cross-objection laying
challenge to any finding adverse to him as the
decree is entirely in his favour, yet he may support
the decree without cross-objection. It gives him the
right to take cross-objection to a finding recorded
against him either while answering an issue or while
dealing with an issue. It is apt to note that after the
amendment in the Code, if the appeal stands
withdrawn or dismissed for default, the crossobjection
taken to a finding by the respondent would
still be adjudicated upon on merits which remedy was
not available to the respondent under the
unamended Code.
19. At this juncture, we may usefully reproduce a
passage from Banarsi and others (supra) wherein it
has been stated thus: -
“Sections 96 and 100 CPC make provision
for an appeal being preferred from every
original decree or from every decree
passed in appeal respectively; none of the
provisions enumerates the person who can
file an appeal. However, it is settled by a
long catena of decisions that to be entitled
to file an appeal the person must be one
aggrieved by the decree. Unless a person
is prejudicially or adversely affected by the
decree he is not entitled to file an appeal.
See Phoolchand v. Gopal Lal7
, Jatan Kumar
Golcha v. Golcha Properties (P) Ltd. (supra)
and Ganga Bai v. Vijay Kumar (supra).) No
appeal lies against a mere finding. It is
significant to note that both Sections 96
and 100 CPC provide for an appeal against
decree and not against judgment.”
20. Though the High Court has referred to the said
pronouncement, yet it has not applied the ratio
correctly to the facts. This Court has clearly stated
that if a person is prejudicially or adversely affected
by the decree, he can maintain an appeal. In the
present case, as we find, the plaintiff claiming to be a
co-sharer filed the suit and challenged the will. The
defendant No. 5, the brother of the plaintiff,
supported his case. In an appeal at the instance of
the defendant Nos. 1 to 4, the judgment and decree
was overturned. The plaintiff entered into a
settlement with the contesting defendants who had
preferred the appeal. Such a decree, we are
disposed to think, prejudicially affects the defendant
No. 5 and, therefore, he could have preferred an
7
AIR 1967 SC 1470
appeal. It is worthy to note that the grievance
pertained to the nature and character of the property
and the trial court had decreed the suit. He stood
benefited by such a decree. The same having been
unsettled, the benefit accrued in his favour became
extinct. It needs no special emphasis to state that he
had suffered a legal injury by virtue of the over
turning of the decree. His legal right has been
affected. In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan
v. The State of Maharashtra & ors.8 wherein this
Court has held thus: -
“A “legal right”, means an entitlement
arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit
conferred upon a person by the rule of law.
The expression, “person aggrieved” does
not include a person who suffers from a
psychological or an imaginary injury; a
person aggrieved must therefore,
necessarily be one, whose right or interest
has been adversely affected or
jeopardized. (Vide: Shanti Kumar R. Chanji
v. Home Insurance Co. of New York, AIR
1974 SC 1719; and State of Rajasthan &
Ors. v. Union of India & ors., AIR 1977 SC
1361).”
8
2012 (11) SCALE 39
21. Though the said judgment was delivered in a
different context, yet it is applicable to the obtaining
factual matrix regard being had to the conception of
legal injury. Thus, indubitably, the present appellant
was a person aggrieved and was prejudicially
affected by the decree and, hence, the appeal could
not have been thrown overboard treating as not
maintainable.
22. In view of the aforesaid premised reasons, we allow
the appeal, set aside the judgment of the High Court,
treat the second appeal preferred by the present
appellant to be maintainable in law and remit the
matter to the High Court with a request to decide the
appeal within a period of six months. Needless to
say, we have not expressed any opinion on any of
the aspects which pertain to the merits of the case.
In the facts and circumstances of the case, the
parties shall bear their respective costs.
……………………………….J.
[K. S. Radhakrishnan]
18Page 19
……………………………….J.
[Dipak Misra]
New Delhi;
January 07, 2013
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