Jose thengumpillil Vs. Secretary, Peruvanthanam Service Co-operative Bank Ltd. and anr. - Court Judgment

Excerpt:
civil - decree - sections 96, 104, order 21 rules 58 and 58 (3) and order 43 rule 1 of code of civil procedure, 1908 - whether orders challenged in appeals have force of decrees attracting appeal under section 96 or whether they were merely orders conferring right of appeal on appellant under order 43 rule 1 - orders passed under order 21 rule 58 (3) were appealable under section 96 treating such orders as deemed decrees. - - 5. shri radhakrishnan, learned counsel, on the other hand, has submitted that the provisions in rule 58(4) of order xxi would clearly indicate that the order passed under order xxi rule 58(3) is to be treated as a decree for the purpose of filing an appeal and the effect of the said deeming provision is to attract directly the provisions contained in section 96 of the code in the matter of filing appeal etc. the legislative intendment is clearly to equate the orders passed under rule 58(3) to that of a decree atleast for the purpose of preferring appeals. 8. dealing with the various decisions referred to by counsel on both sides, we would only like to point out that they have taken divergent views giving importance to the distinction between decrees and 'orders' and without attaching due importance to the very significant distinction made between orders appealable as such and orders directed to be treated 'as if it were a decree having the same force and subject to the same condition as to appeal or otherwise made by the legislature while incorporating the provisions contained in rule 58(4) and rules 50 and 103 of order xxi of the code among others. ali's case (supra). 9. we would in this connection like to point out that the difference in treating the appeal as one filed under section 96 and numbering it as a. if we may say so, the well advised pragmatism shown by the legislature while amending the provisions contained in order xxi rule 58 c.ramakrishnan, j. 1. these two unnumbered appeals are posted before us on a reference made by balasubramunyan, j. the question posed before the learned single judge and referred for decision is whether the orders challenged in the two appeals have the force of decrees attracting an appeal under section 96 of the code of civil procedure or whether they arc merely orders conferring a right of appeal on the appellant under order xli1i rule 1 c.p.c. being a question relating to the practice to be followed generally by the courts in the matter of entertaining appeals, the learned single judge was of the view that there should not be any confusion on the question and as such it is only proper to refer the question to a division bench for an authoritative pronouncement on the question. incidently, the learned judge has also pointed out in the order of reference the correctness of the decision reported in ali v. muhammed ali (ilr 1995 (3) ker 383). as such it is necessary to consider the correctness of the said decision also.2. the appeals filed are against the orders passed in two claim petitions, i.a.no. 217 (a) of 1994 in o.s.no. 341 of 1994 and i.a.no. 220(a) of 1994 in o.s.no. 342 of 1994 filed under order xxi rule 58 c.p.c. for raising the attachment before judgments effected in the suits pending before the sub court. pala. the claims were duly adjudicated upon in the manner provided for adjudication of claims to property attached in execution prescribed under order xxi rule 58 c.p.c. and the other relevant provisions in that order in view of the provisions contained in order xxxviii rule 8 c.p.c. as per the impugned order, the claim petitions have been allowed. plaintiffs in the two suits have preferred these appeals. taking note of the nature of the question posed, we have requested shri thottathil b. radhakrishnan to assist the court as amicus curiac which request was readily accepted by the learned counsel.3. in the office note, the office has taken the view that regular appeals have to be filed treating the orders passed as having the force of a decree as held in, ali v. muhammed ali, (1995 (2) klt 225).4. learned senior counsel, shri s. venkitasubramonia iyer, has submitted that the impugned orders being orders passed under order xxi rule 58(3) c.p.c. they can be treated only as orders appealable under the rules as defined in the c.p.c. in contract to the decrees passed by courts exercising original jurisdiction as contemplated under section 96 c.p.c. and, therefore, only a civil miscellaneous appeal, as filed by him, is maintainable in law. referring to the definition of the words 'decree' and 'order' contained in section 2(2) and 2(14) it was submitted that the code has made a clear distinction between the two throughout the provisions contained therein. it was contended that even though an order passed under order xxi rule 58(3) is directed to be treated as one having the same force and be subject to the same conditions as to appeal or otherwise as it were a decree as per rule 58(4), it cannot be equated to a decree as such. in other words, so long as the order can be treated only as one having the status of a decree and not a decree as such, no regular appeal can be filed against it under section 96 of the code. in support of the above submissions, learned counsel for the appellants has strongly relied upon the decisions reported in, vasanthi, mrs. v. k. karuppanna gounder (1988 (2) lw 45 (madras) b. nookaraju v. m.s.n. charities, air 1994 ap 334. as regards the decision of the learned single judge of this court in, ali's case (supra) and relied upon by the office and the decision of the andhra pradesh high court reported in, b. venkat rao v. c. subbaiah, air 1983 ap 166, approved by the learned single judge in ali's case (supra), learned counsel has sought to distinguish the same by stating that the point arising for consideration in the present case did not specifically arise for consideration in the said decisions. according to counsel, the only point which arose for consideration in the saiddeeisions was thequestion whether an appeal or a revision will lie against an order passed under order xxi rule 58 c.p.c.5. shri radhakrishnan, learned counsel, on the other hand, has submitted that the provisions in rule 58(4) of order xxi would clearly indicate that the order passed under order xxi rule 58(3) is to be treated as a decree for the purpose of filing an appeal and the effect of the said deeming provision is to attract directly the provisions contained in section 96 of the code in the matter of filing appeal etc. as such, a person aggrieved by an order passed under order xxi rule 58(3) is entitled and bound to prefer a regular appeal under section 96 of the code. a further appeal under section 100 subject to the other provisions in the code is also maintainable. learned counsel has submitted that rule 58(4) cannot be treated as a provision providing for an appeal against the order passed under rule 58(3) as such. rule 58(4) only declares that orders passed under rule 58(3) shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. it is not a rule which expressly provides an appeal against the order passed under rule 58(3) treating it as an order itself. what has been done by the legislature by incorporating rule 58(4) is to deem the orderpassed under rule 58(3) as a decree so as to attract all the provisions applicable to decrees atleast in regard to the filing of appeals. in other words, instead of expressly providing an appeal against the order passed under rule 58(3) treating it as an order itself, the provision deems the order as a decree and states that it will have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. the legislative intendment is clearly to equate the orders passed under rule 58(3) to that of a decree atleast for the purpose of preferring appeals. learned counsel has submitted that in the light of the deeming provision contained in rule 58(4), the order passed under rule 58(3) is bound to be treated as a decree for the purpose of filing an appeal and such appeals are liable to be filed under section 96 of the code and treated as regular appeals as pointed by the office. in this view, learned counsel submitted that the point has been rightly decided in alis' case (supra). in support of the above submissions, learned counsel has strongly relied upon the reasoning contained in the decision of this court in, m.v. ali v. kunjannamma philipose (1975 klt 527).6. on an analysis of the provisions contained in the code defining the words 'decree,' 'order', 'rule' and provisions providing for filing appeals against decree and orders, it is clear that the code has made a clear distinction between decrees and orders and separate provisions have been made providing appeals against 'decrees' and 'orders'. for the purpose of deciding the point, it is important to note that a decree has been defined so as not to include any adjudication from which an appeal lies as an appeal from an order and an 'order' has been defined as to mean the formal expression of any decision of a civil court which is not a decree. the code provides specifically an appeal agianst a decree passed by any court exercising original jurisdiction under section 96, subject tothe conditions mentioned in that section and other sections of the code. a second appeal has also been provided against the decrees passed in the appeal subject to the provisions contained in section 100 and other relevant provisions of the code. on the other hand, appeals from orders are provided by the code under section 104 and the provisjonscontained in order xliii rule 1 of the code. section 104(2) specifically provides that no appeal shall lie from any order passed in appeal under this section. further, section 105 provides that save as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error defect or irregularity in any order, affecting the decision of the case, may be set forth as aground of objection in the memorandum of appeal. it is specially relevant to note that as per section 104(1)(i) any order made under rules from which an appeal is expressly allowed by rules is also appealable, under section 104. thus, apart from the orders specifically referred to in section 104 and order xliii rule 1, all orders made under rules from which an appeal is expressly allowed by rules is also appealable under section 104. thus a clear distinction has been made and maintained throughout the code between 'decree', orders appealable as such and non-appealable orders. so also a distinction has been made in the matter of providing appeals against 'decrees' and appealable orders. further as part of the scheme of providing appeals against decrees and appealable orders, there are provisions in the code whereby certain orders have been declared as orders having the same force and be subject to the same conditions as to appeal or otherwise as if ii were a decree as contained in rule 58(4). similar provisions can be seen incorporated in rules 50 and 103 of order xxi of the code. if the provisions in rule 58(4) is to be treated as a provision expressly providing an appeal against the order passed under rule 58(3) as such, an appeal under section 104(1) would be maintainable specifically as per the provisions contained in clause (i) of that section. such an order would automatically go out of the purview of the definition of the word 'decree' contained in section 2(2) of the'code since the adjudication involved in the order can only be treated as an adjudication from which an appeal lies as an appeal from an order. as regards, the above aspect, while the learned counsel for the appellants has submitted that the provisions in rule 58(4) is bound to be treated as a provision expressly providing an appeal, shri radhakrishnan has submitted that it is only a deeming provision deeming the order as a decree and stating that it will have the same force and be subject to the same conditions as to appeal or otherwise and not a provision expressly providing for an appeal against the order treating it as an order.7. having considered the entire matter, we are inclined to take the view that though rule 58(4) is a provision incorporated for the purpose of subjecting the order passed under rule 58(3) to appeals, it cannot be treated as a rule allowing expressly an appeal against the order passed under rule 58(3) as such. in view of the clear distinction kept by the code between 'decree', 'appealable orders' and 'orders' directed to be treated as orders having the force of a decree, it may not be possible to ignore the significance of the legislative technique adopted by incorporating the provisions contained in rule 58(4), a deeming provision by which orders passed under rule 58(3) are directed to be deemed as decrees having the force of a decree and subject to the same conditions as to appeal or otherwise as if it were a decree. according to us by incorporating rule 58(4) the legislature has made a further distinction between appealable orders and orders directed to be treated as if it were a decree and having the same force and subject to the same conditions as to appeal or otherwise for the purpose of filing appeals against such orders. the purpose of the deeming provision can only be to subject such orders to all the provisions in the code prescribing appeals against original orders if it is a decree itself though as such they are not decrees. in this connection, we are of the view that the oft quoted principle declared by lord asquith in the case of east end dwelling co. ltd. v. finsubury borough council (1952) ac 109 (b) and quoted with approval by the supreme court in m. venugopal divnl. manager, l1c of india, machilipatnam, (air 1994 sc 1343) that 'when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, inevitably have flowed from - one must not permit his imagination to boggle when it comes to the inevitable corollaries of that state of affairs is squarely applicable to the instant case and we should hold that for the purpose of filing appeal. the order passed under rule 58(3) is bound to be treated as a decree itself though it is not a decree as defined in the code and as such an appeal under section 96 itself is maintainable and not an appeal treating the order as an appealable order similar to those mentioned in section 104 and order xlhi rule 1 c.p.c. this, in fact, is the view taken by me learned single judge in ali's case (supra) and in b. venkata rao's case (supra). of course, such appeals though filed under section 96 may form a separate category by themselves as there may not be any formal decree as the basis of such appeals and for that reason it may be proper and convenient if the office can make sume change in numbering such appeals as 'as' for eg: by adding the word 'miscellaneous' in brackets after 'as' or in any other manner if possible. in any case, we are firmly of the view that such appeals cannot be treated as appeals filed against appelahle orders and numbered as 'cma' which normally denotes appeals filed agianst appealable orders under section 104 read with order xliii rule 1 c.p.c. 8. dealing with the various decisions referred to by counsel on both sides, we would only like to point out that they have taken divergent views giving importance to the distinction between decrees and 'orders' and without attaching due importance to the very significant distinction made between orders appealable as such and orders directed to be treated 'as if it were a decree having the same force and subject to the same condition as to appeal or otherwise made by the legislature while incorporating the provisions contained in rule 58(4) and rules 50 and 103 of order xxi of the code among others. as such we would prefer to follow the view expressed in b. venkata rao's case (supra) and approved by the learned judge in ali's case (supra) that a regular appeal will lie. in preference to the view expressed in vasanthi's case (supra). b. nookaraju's case (supra) and avinash chander v. mohan lal, air 1984 p & h 391 and the decisions referred to therein. we may point out that the reasoning given by the learned judge in, b. venkata rao's case (supra) is different from that given by us in this order and by thulasidas, j in ali's case (supra). we are also in respectful agreement with the reasoning contained in m.v. ali's case (supra).9. we would in this connection like to point out that the difference in treating the appeal as one filed under section 96 and numbering it as a.s. is nut only a formal or procedural one but of substance. in fact we think that the very purpose of the legislature in amending and incorporating rule 58(4) was to subject the orders passed under order xxi rule 58(3) to a first appeal and a second appeal as in the case of original decrees unlike in the case of appealable orders against which the code has specifically provided only one appeal barring further appeals specifically under section 104(2) c.p.c. if we may say so, the well advised pragmatism shown by the legislature while amending the provisions contained in order xxi rule 58 c.p.c. was to provide a comprehensive scheme for finally enquiring into both claims and objections raised against attachment of property effected either before judgment or in execution of the decree and to determine all questions including questions relating to right, title or interest in the property attached arising between the parties to the proceeding or their legal representatives under the rule itself as if in a suit and to deem the order passed in such proceedings as decree for the purpose of filing appeals and thus to avoid all delays in the matter of adjudicating and determining such claims and objections. it was because such adjudication is intended to be all comprehensive that legislature advisedly thought it tit to direct the final orders to be passed therein to be treated as orders having the same force and subject to the same conditions as to appeal or otherwise as if it were a decree. the deeming provisions contained in order xxi rule 58(4) attracts the provisions providing for appeals against original decrees applicable to such comprehensive orders as if they are decrees for me purpose of filing appeals. a quest ion may then natural1y arise why the legislature has nut included such orders in the definition of the word 'decree' and made it only a 'deemed decree' and not a proper decree itself? the legislature, we think, might have in its wisdom thought it fit to maintain a distinction between the decrees as defined in the code and such comprehensive orders having the force and effect of a decree for the purpose of appeals probably to indicate the difference in the source of the two proceedings; one initiated by filing a proper plaint and the other by filing a claim petition or objection to an attachment before judgment or in execution. the fact that a party whose claim is not entertained under the proviso to rule 58(1) will be entitled to file a suit under rule 58(5) and to get his claim or objection adjudicated therein with a right to file an appeal and second appeal will also strengthen the view which we have taken in the matter. a party whose claim is entertained and adjudicated cannot be placed in a worse position than the party whose claim was found to be not maintainable. the result of taking the view that the order i s appealable only as an appealable order under the rules will be to place the party whose claim is finally adjudicated in a worse position than the party whose claim was rejected as not maintainable.10. in the light of the above discussion, we would hold that the orders passed under order xxi rule 58(3) are appelable under section 96 of the c.p.c. treating such orders as deemed decrees. such appeals are liable to be filed complying with the requirements of that section and other relevant provisions in the code to the extent applicable. office may pass appropriate orders either accepting or returning the memorandum of appeals after scrutinising the same to see whether it is in order in the light of the view taken by us in this order. if in order, the appeals may be numbered as indicated above.we record our deep appreciation of the exhaustive mannerin which both sides have argued the points for our decision.