Case Note & Summary
This civil appeal arose from a mortgage enforcement suit. The plaintiff (appellant before the Supreme Court) was the mortgagee; defendants 1 to 3 were the mortgagor and his two sons. Defendant 1 executed a mortgage deed on behalf of himself and his minor son defendant 2 on March 24, 1953; defendant 3 was born later. A registered partition deed among the defendants on January 11, 1956 allotted the mortgaged property to defendants 2 and 3. The plaintiff filed Civil Suit No. 3A of 1956 on September 1, 1956 to enforce the mortgage. On September 20, 1958, the trial court passed a preliminary decree for sale of defendant 1's interest only, holding that part of the debt was not supported by legal necessity and the balance was tainted with immorality, hence not binding on defendant 2's half share. It also found the partition was a sham and colourable transaction. The plaintiff appealed (First Appeal No. 40 of 1959) against the decree directing sale of only half share; defendants 2 and 3 appealed (First Appeal No. 72 of 1959) solely against the finding that the partition was colourable. The preliminary decree was made final on October 23, 1958. The plaintiff purchased a half share in auction on March 2, 1960; the sale was confirmed on September 21, 1960; possession was given on November 25, 1960. During the hearing of the appeals on March 15, 1966, defendants 2 and 3 applied on August 2, 1966, nearly seven and a half years after filing their appeal, to amend the memorandum to challenge the preliminary decree. The plaintiff opposed the amendment and sought dismissal of her own appeal for non-prosecution. The High Court adjourned the hearing and allowed defendants to deposit decretal amounts; they deposited Rs 12,500 on November 24, 1966 and Rs 25,000 on February 25, 1967. On February 14, 1968, another Division Bench allowed the amendment and granted time to pay deficit court fees, which was done by February 23, 1968. In March 1968, the High Court dismissed the plaintiff's appeal for non-prosecution, confirmed findings in favour of the defendants, and in the defendants' appeal held that under Order 41 Rule 2 CPC additional grounds could be urged without amending the memorandum, that the appeal was competent, and that the partition was real and genuine. Consequently, the High Court set aside the preliminary and final decrees and the auction sale, and passed a fresh preliminary decree under Order 34 Rule 4 CPC for Rs 34,386 with six months to pay. The plaintiff appealed to the Supreme Court. The legal issues were: (1) whether an appeal against a mere finding was maintainable; (2) whether the amendment of the memorandum of appeal after a long delay without condonation was proper. The plaintiff argued that the appeal was originally filed only against the finding on partition and hence could not be converted into an appeal against the decree, and that the amendment was barred by delay. The defendants argued that they were aggrieved by the adverse finding and denial of the right to redeem, and that Order 41 Rule 2 permitted additional grounds. The Supreme Court held that the right of appeal is statutory, not inherent; under the Code of Civil Procedure an appeal lies only against a decree or an order under Order 43 Rule 1, and no appeal lies against a mere finding. Therefore, First Appeal No. 72 of 1959 was not maintainable. On amendment, the Court held that the High Court should not have allowed the amendment after seven and a half years without good cause or an application for condonation of delay; the preliminary decree had remained unchallenged since 1958 and a valuable right had accrued to the decree-holder. The Supreme Court allowed the appeal, set aside the High Court's judgment and decree, held that defendants 2 and 3's appeal was not maintainable, and restored the trial court's preliminary and final decrees and the auction sale in favour of the plaintiff.
Headnote
A) Civil Procedure - Appeals - Maintainability of Appeal Against Mere Finding - Code of Civil Procedure, 1908, Order 43 Rule 1 - Appeal lies only against a decree or an order expressly made appealable; no appeal lies against a mere finding. Defendants 2 and 3 filed First Appeal No. 72 of 1959 challenging only the trial court's finding that the partition was sham and colourable, not the decree; suit was dismissed against them. The Supreme Court held that the appeal was not maintainable because the Code does not provide for an appeal against a mere finding, and the High Court erred in treating it as competent. (Paras not mentioned) B) Civil Procedure - Amendment of Memorandum of Appeal - Delay and Condonation - Code of Civil Procedure, 1908, Order 41 Rule 2 - Amendment sought after 7.5 years without explaining delay or seeking condonation is improper when valuable rights have accrued to the decree-holder. Defendants 2 and 3 applied on August 2, 1966, nearly 7.5 years after filing the appeal, to amend the memorandum to challenge the preliminary decree; the High Court allowed the amendment on February 14, 1968. The Supreme Court held that the High Court failed to exercise judicial discretion properly, as defendants had not shown good cause, the preliminary decree had remained unchallenged since 1958, and the plaintiff had acquired rights through auction sale and possession; hence allowing amendment was incorrect. (Paras not mentioned)
Issue of Consideration
Whether an appeal filed against a mere finding recorded by the trial court was maintainable; whether the High Court was justified in allowing amendment of the memorandum of appeal after nearly seven and a half years without good cause shown and without any application for condonation of delay
Final Decision
The Supreme Court allowed the plaintiff's appeal, set aside the High Court's judgment and decree dated March 19, 1968, held that First Appeal No. 72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding, and further held that the High Court should not have allowed the amendment of the memorandum of appeal after seven and a half years without good cause or condonation of delay. Consequently, the trial court's preliminary and final decrees and the auction sale in favour of the plaintiff stood restored.
Law Points
- Right of appeal is statutory and not inherent
- appeal lies only against a decree or an order expressly made appealable under Order 43 Rule 1 of Code of Civil Procedure
- 1908
- no appeal lies against a mere finding
- amendment of memorandum of appeal after long delay without condonation of delay is not proper exercise of judicial discretion
- valuable right accrued to decree-holder cannot be defeated by belated amendment
