Arvind Pathak vs Akhil Pathak

Sharad Kumar Sharma, J

There are two objections, which has been raised by the Registry in the present Second Appeal, which has been preferred by the defendant (appellant herein), wherein, he has questioned the order dated 21st March 2018, as passed by the Civil Judge, Junior Division, Ramnagar, District Nainital in a Civil Miscellaneous Case Number 8 of 2017, Akhil Pathak v. Arvind Pathak, which was arising out of a final determinations made by the Court in a Suit number 32 of 2016, Akhil Pathak v. Arvind Pathak, wherein the plaintiff/respondent has sought for a decree of partition. The said suit was decree for ½ portion of the property in dispute by the judgement dated 11th April 2017.

As against the decision rendered in the Miscellaneous Case, which was initiated before the Civil Judge, Junior Division, Ramnagar, an order which was passed on 21st March 2018, and by virtue of which an Application Paper Number 4(ga), as preferred by the decree-holder (applicant therein) was allowed and a direction was issued for final preparation of the decree. The said application for preparation of the final decree by the decree-holder was contested by the present defendant/ appellant by filing an objection paper number 19 (ga), and consequently by an order was rendered in the miscellaneous proceedings by an order dated 21st March 2018, the application paper No. 4(ga) for preparation of final decree was allowed.

On scrutiny of the order, it reveals, that it was the case, where the decree-holder has sought for a preparation of the final decree in pursuance to the determination of rights made by the judgement and decree dated 11th April 2017, the respondent therein in the Miscellaneous Case and the defendant/appellant in the present Second Appeal, at no point of time have ever raised any objection that the preference of an application paper number 4 (ga) by the decree-holder at any point of time will amount to be a determination of a right as a consequence of the preparation of the final decree to make it in the shape of a decree, falling within the ambit of sub Section (2) of Section 2 of the Code of Civil Procedure to make it appealable by way of preferring the Second Appeal.

Be that as it may. As against the direction issued by trial Court on 21st March 2018, for preparation of the final decree in pursuance to the order dated 21st March 2018, a Miscellaneous Civil Appeal was preferred by the present defendant/ appellant, which was registered as Miscellaneous Civil Appeal Number 153 of 2018, Arvind Pathak v. Akhil Pathak, which would be an appeal under the ambit of Section 104 of C.P.C. and not an appeal under Section 96 of C.P.C, as against a decree, because it was arising out of the miscellaneous proceedings and any order passed will fall to be a decree as defined under the Code of Civil Procedure, the Miscellaneous Appeal thus filed, which was accompanied with an application paper number 5 (ka) under Section 5 of the Limitation Act. It is this application for condonation of delay in the Miscellaneous Appeal, against the decision dated 21st March 2018, for preparation of the final decree, the present Second Appeal has been preferred against the rejection of delay condonation by the order dated 10th December 2012 rendered in Miscellaneous Civil Appeal. The Registry of this Court has reported that apart from the fact that the appeal suffers from the deficiency of remittance of an appropriate Court fee, it has also reported that the appeal is delayed by 429 days. Presently, the main issue, with which this Court at present is concerned, is the defect as pointed out by the Registry to the effect that as against the impugned order under challenge in the present Second Appeal, whereby the appellant's application under Section 5 in a Misc. Civil Appeal number 153 of 2018, Arvind Pathak v. Akhil Pathak, has been rejected, the issue is as to whether that will amount to fall to be within the ambit of a decree as defined under sub Section (2) of Section 2 of the Code of Civil Procedure or any order passed in a miscellaneous proceedings will take shape of formal order.

The contention of the defendant/appellant is that at the time when the adjudication was made by the judgement and decree dated 11th April 2007, in relation to a suit for partition, he contends that it would amount to be a preliminary decree which is an expression for determination of rights in relation to the share, which the parties to the proceedings under the partition suit would be entitled to receive as a consequence of an enforcement of a decree. He contends that the ultimate decree, as a consequence of the determination made on 11th April 2017, it will only come into existence when the application for preparation of a final decree is considered and order is passed on it, which in the instant case happens to be by way of paper number 4(ga), which has been decided by the learned trial Court on 21st March 2018, it comes into existence thereafter only. Hence, he contends that in the light of the aforesaid reasons, as against the decision rendered on miscellaneous application paper number 4 (ka), for the purposes of preparation of the final decree, the order impugned dated 21st March 2018, would amount to be a decree to be brought within the ambit of sub Section (2) of Section 2 of the Code of Civil Procedure.

Ultimately, the challenge, which has been given in the Second Appeal, is an adjudication which has been made on an application paper number 5 (ga), preferred by the appellant by invoking the provisions contained under Section 5 of the Limitation Act at the time when he has preferred a Miscellaneous Civil Appeal, questioning the order of trial Court, passed in the Miscellaneous Proceedings, in order to issue a direction for preparation of final decree. Even, by the adjudication, which has been made by the First Appellate Court by the order dated 11th December 2018, it was only a determination of question with regards to as to whether under the circumstances for the reasons seeking condonation of delay in the Miscellaneous Appeal, would be permissible or not, hence the decision taken of rejecting the delay condonation application, this Court is of the view that, that itself will not fall to be within the ambit of the definition of a decree and hence if it doesn't take the shape of a decree, in that view of the matter, the Second Appeal in question would not be maintainable and if at all there happens to be any grievance to be raised by the petitioner against the rejection of Section 5 application, he will have a recourse available to him to prefer an appeal, because it is an order passed in a Miscellaneous Appeal preferred by the appellant.

Consequently, this Court does not find any merit in the Second Appeal with regards to the objection as raised by the learned counsel for the appellant against the report of the of the Registry. Hence the report of the Registry is affirmed and it is left open for the appellant to file an Appeal from Order, if he is so advised against the impugned order under challenge. Accordingly, the Second Appeal is dismissed. However, there would be no order as to cost.