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

Citation: [1983] 3 S.C.R. 25 · Decided: 05-05-1983 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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 1916-
Interpretation of-Direction regarding p'ayn-1ent of decretal amount-An order-
Til/ 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.1-
lnterpretation 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 com-
menced 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 memotan-
Qum.Of appeal be taken on file. Th.is appeal whi"11 wa.s numb_ered 36_ of 1981 
F 
G 
H 
A. 
B 
c 
D 
E 
F 
G 
H 
26 
, 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.
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