Shrimati Mamata Guha vs Pranab Kumar Das

Subhro Kamal Mukherjee, J.—The learned advocate for the Appellant is directed to insert the name of the leaned trial judge in the preamble of the memorandum of appeal, here and now.

Mr. Aniruddha Chatterjee, learned advocate appearing for the Appellant informs that his junior, Mr. Surya Prasad Chattopadhyay, learned advocate has filed fresh vakalatnama on February 15, 2011 on behalf of the Appellant under filing No. A 2497.

The office is directed to accept the vakalatnama, if the vakalatnama is in form.

This is an appeal against an order dated December 8, 2010 passed by the learned Judge, Fourth Bench, City Civil Court at Calcutta, in Title Appeal No. 46 of 2007.

The learned trial judge, by the order impugned, rejected an application, filed u/s 151 of the Code of Civil Procedure, by the Appellant seeking a direction on the Respondent to open the padlock of the suit premises.

The additional stamp reporter in his report expresses his doubt about the maintainability of the appeal.

Mr. Aniruddha Chatterjee, learned advocate appearing for the Appellant, submits that the appeal is maintainable before this Court as by the order impugned, in substance, an application for mandatory injunction filed by the Defendant-Appellant was rejected by the learned trial judge. Therefore, in view of the provisions of Order 43, Rule l(r) of the Code of Civil Procedure, this appeal is maintainable.

Mr. Chatterjee, further, submits that the appeal is continuation of a suit and, therefore, the application was filed by the Defendant-Appellant in the lower appellate court resorting to the provisions of Order 39, Rules 1 and 2 of the Code of Civil Procedure. It is not, therefore, necessary for the Defendant-Appellant to take assistance of the provisions of Section 141 of the CPC for filing an application for injunction in the lower appellate Court.

Mr. Dilip Kundu, learned advocate appearing for the Respondent, however, disputes the contentions of Mr. Chatterjee and submits that in view of Section 104(2) of the Code of Civil Procedure, this appeal is not maintainable inasmuch as the impugned order is passed in an appeal.

In order to appreciate the rival contentions of the parties, it is necessary to note the history of the legislation on the subject.

Section 647 of the Code of Civil Procedure, 1882 (Act XIV of 1882) ran as under:

647- The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction other than suits and appeals.

There were divergence of opinions whether the expression "proceedings other than suits and appeals" included proceedings in execution.

While the High Court at Allahabad in Kifayat Ali v. Ram Singh reported in (1885) ILR 7 Allahabad 359, Sarju Prasad v. Sita Ram reported in (1888) ILR 10 All 71, Fakir-ullah and Anr. v. Thakur Prasad reported in (1890) ILR 12 All 179, Radha Charan and Ors. v. Man Singh reported in (1890) 12 All 392 and the High Court at Bombay in Pirjade v. Pirjade reported in (1882) ILR 6 Bom 681, held that the section applied to applications for execution of decrees, that is, the procedure relating to suits was applicable to the applications for execution, the High Court at Calcutta in Bunko Behary Gangopadhya v. Nil Madhub Chattopadhya reported in (1891) ILR 18 Cal 635 held that the section did not apply to the proceedings in execution.

The Section 647 was, therefore, amended by Act VI of 1892 by the addition of the explanation -

Explanation - This section does not apply to applications for the execution of decrees which are proceedings in suits.

This gives legislative sanction to the Calcutta view.

However, the Privy Council in the case of Thakur Pushad v. Sheikh Fakir-ullah and Anr. reported in 22 Indian Appeals 44 held, in the year 1894, that independently of the said Explanation Section 647 did not apply to the applications for execution, but only to original matters in the nature of suits, such as proceedings in probates, guardianships, and so forth.

Sir Dinshah F. Mulla in his well-known commentary of the CPC submitted that if the said decision had come three years earlier, it would have made the enactment of the Explanation unnecessary.

At the time of enactment of the Code of Civil Procedure, 1908 (Act v. of 1908), the expressions "in regard to suits" were added and the expressions "other than suits and appeals" were omitted.

By Section 46 of the CPC (Amendment) Act, 1976 (Act CIV of 1976) the following explanation was added -

Explanation - In this section, the expression "Proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.

Section 141 of the Code of Civil Procedure, therefore, extends the procedure provided in regard to suits to proceedings in civil Courts. It makes applicable to other proceedings only to those portions of the Code, which deal with procedure and not those, which deal with substantive rights. This section deals with procedure and procedure alone. It does not confer substantive right not expressly granted by the Code. Unless there is a right of appeal under the specific provisions of the statute, there is no right of appeal from an order passed in a proceeding contemplated by this section. The right of appeal is a substantive right and not a matter of procedure. No appeal, therefore, lies from an order passed in a proceeding of the kind contemplated under this section. Section 141 of the CPC cannot operate to give an appeal from an order not otherwise appealable. Such right cannot be claimed on the strength of Section 141 of the CPC Code.

The Supreme Court of India in the case of Nawab Usmanali Khan Vs. Sagarmal, holds that Section 141 makes applicable to other proceedings only those provisions of the code which deal with procedure and not those which deal with substantive rights.

The Supreme Court of India in the case of Ram Chandra Aggarwal and Anr. v. The State of Uttar Pradesh and Anr. reported in (1966) Supp. Supreme Court Reports 393 holds that the expression "civil proceeding" in Section 141 of the CPC is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc., but that it applies, also, to a proceeding which is not an original proceeding.

This is an appeal against the order, assuming for the sake of argument, rejecting an application for mandatory injunction under Order 39, Rules 1 and 2 of the CPC by lower appellate Court. The applicants under Order 39, Rules 1 and 2 of the Code could be filed in the lower appellate Court only by resorting to Section 141 of the Code of Civil Procedure, which applies only to the procedural matters.

We respectfully concur with the view expressed in Jamuna Chakraborty v. Sital Chakraborty and Ors. reported in 2007 (3) CHN 166 that an appeal may be treated as a continuation of the ''lis'' between the parties, but never be treated as the continuation of the suit with in the scheme of the Code. It was never the legislative intention to treat the appeal as the continuation of the suit.

We, therefore, hold that this miscellaneous appeal is not maintainable. The appeal is, therefore, dismissed as not maintainable.

We, however, make it clear that we have not gone into the merits of the claim and the counter-claim of the parties involved in this appeal. This order of dismissal shall not prevent the Appellant to approach the appropriate forum in accordance with law.

As prayed for, the office is directed to return the certified copy of the order impugned to the learned advocate-on-record for the Appellant on his furnishing photocopy thereof.

In view of dismissal of the appeal, all interlocutory applications become infructuous, and those are, also, dismissed.

We make no order as to costs.

Urgent xerox certified copy of this order, if applied for, is to be given to the learned advocates for the parties, upon compliance of all formalities.

Tarun Kumar Gupta, J.-I agree