Whether a person who is not party to suit can file appeal?

The Apex Court in Adi. Pherozshah Gandhi vs. H.M. Seervai, Advocate General of Maharashtra, Bombay, MANU/SC/0044/1970 : A.I.R. 1971 SC 385 held thus:-

"Generally speaking, a person can be said be aggrieved by an order which is to his detriment, pecuniary or otherwise or causes him some prejudice in some form or other. A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him. But it has been held in a number of cases that a person who is not a party to suit may prefer an appeal with the leave of the appellate court and such leave would not be refused where the judgment would be binding on him under Explanation 6 to section 11 of the Code of Civil Code of procedure."

IN THE HIGH COURT OF ORISSA

C.M.P. No. 1481 of 2014

Decided On: 15.03.2017

Srikanta Tripathy Vs. Dasarathi Tripathy and Ors.

Hon'ble Judges/Coram:

Dr. Akshaya Kumar Rath, J.

Citation: AIR 2017(NOC)617 Orissa

1. This petition challenges the order dated 20.10.2014 passed by the learned District Judge, Puri in R F.A. No. 45 of 2008. By the said order, the learned appellate court rejected the application of the petitioner for grant of leave to file appeal. Damodar Tripathy, the predecessor in interest of opposite party Nos. 1 and 2 instituted C.S. No. 60/394 of 2006/2004 in the court of the learned Additional Civil Judge (Sr. Division), Puri for specific performance of contract impleading opposite party No. 3 as defendant. The suit was decreed on 12.5.2006. The petitioner was not a party in the suit. Aggrieved by and dissatisfied with the judgment passed by the learned trial court, he filed R.F.A. No. 45 of 2008 before the learned District Judge, Puri. Since there was delay, an application for condonation of delay was filed. According to the petitioner, he is the adopted son of, Nishamani Tripathy. Respondent No. 2 filed objection. Though the learned appellate court came to hold that the person, who is not a party to the decree or order, may file appeal with the leave of the Court, but then it came to a conclusion that the deed of acknowledgement of adoption on the basis of which the petitioner claims to be adopted son of Nishamani though a registered one, does not satisfy the requirement of Section 16 of the Hindu Adoption and Maintenance Act. Held so, the learned lower appellate court refused to grant leave.

2. Heard Mr. D.P. Mohanty, learned Advocate for the petitioner and Ms. Debasmita Debdarsini Acharya, learned Advocate for opposite parties.

3. Mr. Mohanty, learned Advocate for the petitioner submits that the petitioner is the adopted son of Nishamani Tripathy. Nishamani executed a registered deed of adoption in favour of the petitioner. He was not a party to the suit. Aggrieved by the judgment and decree, he filed appeal along with an application for condonation of delay. Without considering the matter in its proper perspective, the learned appellate court rejected the petition.

4. Per contra, Ms. Debasmita Debadarsini Acharya, learned Advocate for the opposite parties submitted that the alleged deed of acknowledgment of adoption does not satisfy the requirement of Section 16 of Hindu Adoption and Maintenance Act. The learned appellate court is justified in refusing leave to file appeal.

5. Two conditions must be satisfied for filing of appeal against the judgment and decree of the learned trial court viz., (1) the subject matter of appeal must be a decree (2) a person, is adversely affected by the decree. Thus, the sine qua non for maintaining an appeal is that only a party to the suit who is adversely affected by the decree may file appeal. However, a person who is not a party to the suit but then adversely affected by the decree may prefer appeal with the leave of the Court.

6. The Apex Court in Adi. Pherozshah Gandhi vs. H.M. Seervai, Advocate General of Maharashtra, Bombay, MANU/SC/0044/1970 : A.I.R. 1971 SC 385 held thus:-

"Generally speaking, a person can be said be aggrieved by an order which is to his detriment, pecuniary or otherwise or causes him some prejudice in some form or other. A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him. But it has been held in a number of cases that a person who is not a party to suit may prefer an appeal with the leave of the appellate court and such leave would not be refused where the judgment would be binding on him under Explanation 6 to section 11 of the Code of Civil Code of procedure."

Admittedly, the petitioner was not a party to the suit. He claims to be the adopted son of Nishamani Tripathy. According to the petitioner, he is aggrieved by the judgment and decree of the learned trial court. While deciding an application for grant of leave, the Court has to be prima facie satisfied that as to whether the person making application has been adversely affected by the decree. But in the instant case, the learned appellate court went further and rendered finding with regard to the registered deed of acknowledgment of adoption. The same cannot be. Since the petitioner has been adversely affected by the judgment and decree, the order dated 20.10.2014 passed by the learned District Judge, Puri in R.F.A. No. 45 of 2008 is quashed. Leave is granted. The learned appellate court shall hear the appeal on merit.

The petition is allowed. No costs.