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PETITIONER: M. RAMNARAIN PRIVATE LTD. AND ANR.

       Vs.

RESPONDENT: STATE TRADING CORPORATION OF INDIA LTD.

DATE OF JUDGMENT05/05/1983

BENCH: SEN, AMARENDRA NATH (J) BENCH: SEN, AMARENDRA NATH (J) BHAGWATI, P.N. PATHAK, R.S.

CITATION:  1983 AIR  786            1983 SCR  (3)  25  1983 SCC  (3)  75        1983 SCALE  (1)548

ACT:      Code of Civil Procedure, 1908-Order 20 r. 11-As amended in 1976-Interpretation  of-Direction  regarding  payment  of decretal  amount-An  order-Till  incorporated  in  Decree-No appeal lies  against that  order-Appeal lies  against decree containing such direction-Order not ’judgment’ within clause 15 of Letters Patent.      Code of  Civil Procedure, Order 41, r. 1-Interpretation of-Filing  copy   of  decree   with  memorandum   of  appeal mandatory-Appeal  filed  without  decree  invalid-Filing  or withdrawal of  incompetent  appeal-No  bar  to  file  proper appeal against decree.      Code of  Civil Procedure,  Order 2, r. 2-Interpretation of-Not applicable to appeals.      Code of Civil Procedure, Order 20, r. 11, Order 2, r. 2 and Order  23, r. 1-Interpretation of-Do not deal with right of appeal or extinguishment thereof-Do not confer or deprive right of  appeal. Right to appeal-Creation of statute-May be lost by  law  or  conduct  of  appellant  or  appellant  may disentitle  himself   to  enforce   right  of  appeal-Prayer regarding payment  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.

HEADNOTE:      The respondent,  as plaintiff, filed a suit against the appellant, as  defendant, in the Original side of the Bombay High Court  for the  enforcement of  its claim  for a  large amount  of  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 decretal 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  commenced on 12th December 1980 was  concluded   on  16th  December  1980,  upon  which  the advocates for  the  appellant  addressed  a  letter  to  the Prothonotary and  Senior Master, High Court, requesting that the accompanying memorandum of appeal be taken on file. This

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appeal which was numbered 36 of 1981 26 was filed  on 20th  January, 1981.  The appeal  was directed against the order in respect of instalments. 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 withdrawal of appeal No. 36 the appellant filed an appeal against  the judgment  taking grounds relating to the merits of the case and also the direction as to instalments. This appeal  was numbered  44 of 1981. After this appeal was heard on  merits for  a few  days, the  respondent raised  a preliminary objection that because the appellant had earlier filed  appeal   No.  36   against  the  provision  regarding instalments 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 appellant  contended in  this Court that the filing of earlier  appeal No. 36 or the withdrawal thereof does not affect the  right of  appellant  to  prefer  appeal  no.  44 against the  decree on  merits.  Appeal  No.  36  was  filed against the  order of  the High 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.  Appeal  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 appealable under C.P.C.  and such an order cannot also be considered to be a  ’Judgment’ within  the meaning  of clause  15  of  the Letters Patent.  Appeal No.  36 which  was against the order regarding instalments  was incompetent  and was therefore no appeal in the eye of law and for all legal purposes was non- est. Even  if appeal  No. 36  has to be considered an appeal against the decree in view of amended provision of Order 20, r. 11  of C.P.C.,  the said  appeal still must be held to be incompetent and  no appeal  in the  eye of law as the appeal was filed  without a  certified copy  of the  decree and was even withdrawn  before a  certified copy of the decree could be filed. Appeal No. 44 filed against the decree in terms of the provisions  contained in  the  Original  Side  Rules  of Bombay High  Court becomes  a proper and competent appeal as the earlier  appeal No. 36 was not a valid appeal in the eye of law.  The provisions  of Order 2, r. 2 and Order 23, r. 1 of C.P.C.  do not  in any way affect the maintainability and the merits  of appeal  no. 44 as the cause of action and the subject matter  of appeal No. 44 are entirely different from the cause of action and the subject matter of appeal No. 36. The appellant  did not waive his statutory right to file the appeal.  The   appellant  by   his  conduct   has  also  not disentitled himself to file Appeal No. 44. Appeal no. 36 was filed  on  the  advice  of  lawyer  under  mistaken  belief; mistaken advice  of a  lawyer cannot  be the foundation of a plea of  estoppel. No  prejudice  has  been  caused  to  the respondent by  filing and withdrawal of appeal No. 36 by the appellant.      The respondent  contended that  in view  of the amended provisions  of   Order  20,   r.  11,  the  order  regarding instalments which  is required  to be  incorporated  in  the decree necessarily  forms a  part of  the decree. In view of

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the 27 provisions contained  in Order 2, r. 2 and Order 23, r. 1 of C.P.C. it  was open  to the  appellant to  prefer an  appeal against the  decree or  to appeal  against any part thereof. The appellant  preferred to  file appeal No. 36 only against the part  of the  decree relating  to  instalments  and  not against  the  decree  as  a  whole.  The  filing  of  appeal restricted to  the directions  as to  the instalments bars a subsequent  appeal   against  the   decree  on  merits.  The appellant having  obtained a  benefit or advantage under the decree to  the prejudice  of respondent  cannot now question the correctness of the decree passed.      Allowing the appeal, ^      HELD: The provisions of Order 20, r. 11, Order 41, r. 1 Order 5,  r. 2  and Order  23, r.  1 of  the Code  of  Civil Procedure do  not deprive the appellant of his right to file appeal No. 44. [54 D]      The right  to prefer  an appeal  is a  right created by statute. A  right of  appeal may  be  lost  to  a  party  in appropriate cases  by the  provisions of law and also by the conduct of  the party. The law of limitation may deprive the party of the right he may enjoy to prefer an appeal. Also in appropriate cases  a  party  may  be  held  to  have  become disentitled from  enforcing the right to appeal which he may otherwise have. [46 A-C]      In the  instant case the defendant-appellant did have a right  of  appeal  against  the  decree  by  virtue  of  the provisions of  s. 96  read with Order 41 of Civil Procedure. The appeal  has been  filed within the period of limitation, The law  of limitation, therefore, does not defeat the right of the appellant to file an appeal. [46 C-D]      Order 20,  r. 11  makes provisions  for postponement of payment of  money decree  and of  its payment in instalments and lays down the procedure for directing payment of a money decree in  instalments. The  amendment introduced in 1976 to Order 20,  r. 11  requires that  any provision directing the payment of the amount decreed shall be postponed or shall be made by  instalments may  be incorporated in the decree. The direction regarding  payment of  the decretal  amount is  an independent order  which is  required to  be incorporated in the decree  and it  can only  be incorporated  in the decree when the  decree is drawn up. It retains the character of an order till it is so incorporated in the decree. The rules of the Original  Side of  the Bombay  High Court make necessary provisions as  to the  drawing up  of a  decree. In  view of procedure laid  down in  the rules  for the  drawing up of a decree, there is bound to be a time lag between the judgment and the drawing up of a decree, in which the order regarding instalment  is   to  be  incorporated.  Appeal  against  any provision  granting   instalments  or   refusing  to   grant instalments will  not be competent if the direction granting or refusing  to grant  instalments is  considered to  be  an order. Such  an order is not appealable under the Code. Such an order will also not be a ’judgment’ within the meaning of clause 15  of the  Letters Patent and will not be appealable as such if however, the direction with regard to instalments is considered  to be  a part  of the  decree, an appeal will undoubtedly lie as an appeal from a decree.                             [47 D-E, 41 G-H, 41 C-D, 47 F-H] 28      The provisions  of Order  20, r.  11 do not deprive the appellant in  the instant  case of  his right  to prefer  an appeal against the decree. The earlier appeal No. 36 of 1981

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had been  filed long  before the  decree in  which the order regarding instalments  under Order  20, r.11 of the Code was to be  incorporated had  been drawn  up. As  at the  time of filing  the  earlier  appeal  No.  36  the  order  regarding instalments had  not been  incorporated in  the decree,  the order retained its character of an order. The earlier appeal No. 36  at the  time when  it was filed, should therefore be regarded as  an appeal  against an  order. The precipe filed for  the  drawing  up  of  the  order,  the  letter  to  the Prothonotary and  Senior Master  of the  High Court  by  the Advocates for  the appellant, the memorandum of appeal filed and the  amount of  stamp furnished  on the  memorandum  are facts which  go to indicate that the earlier appeal had been filed against  the order  regarding instalments treating the same to  be an  order. The  appeal No.  36 must therefore be held to be incompetent. If the earlier appeal No. 36 were to be considered to be an appeal against the decree, the appeal would  still  be  incompetent,  because  the  appellant  had furnished the  amount of  stamp necessary  for preferring an appeal against  the order and the requisite stamp in respect of an appeal against a decree had not been affixed.                   [46 E, 48 D-E, 48 H, 49 A-B, 48 B, 43 D-C]      Under Order.  41, r.1, every appeal has to be preferred in the  from of  a memorandum signed by the appellant or his pleader and  presented to the court or to such officer as it appoints in that behalf, and has to be accompanied by a copy of the decree appealed from, and of the judgment on which it is founded.  Rule 1 empowers the appellate court to dispense with the filing of the judgment but there is no jurisdiction in the  appellate court  to dispense  with the filing of the decree. The  requirement that  the decree  should  be  filed alongwith the  memorandum of  appeal is mandatory and in the absence of  the decree  the filing  of the  appeal would  be incomplete,  defective  and  incompetent.  So  long  as  the certified copy  of the decree is not filed there is no valid appeal in the eye of law. Though by virtue of the provisions of the  Original Side  Rules of  the Bombay  High Court  the earlier appeal  could be  permitted to  be filed  without  a certified copy  of the decree or order, the appeal would not be valid  and competent  unless the  further requirement  of filing the  certified copy  had been complied with. [49 G-H, 50 A, 53 C, 49 F, 52 F]      In the  instant case,  at the  time  when  the  earlier appeal No.  36 had been withdrawn, the certified copy of the decree had  not been  filed. The  said  appeal  without  the certified copy of the decree remained an incompetent appeal. The withdrawal  of an  incompetent appeal which would indeed be no  appeal in  the eye of law cannot in any way prejudice the right  of any  appellant to file a proper appeal, if the right of  appeal is  not otherwise  lost by lapse of time or for any other valid reason. [52 F-G]      Order 2,  r.2, contemplates  that at  the time  of  the institution of  the suit,  the whole  of the claim which the plaintiff is  entitled to  make in  respect of  the cause of action, has  to be made and also deals with the consequences of non-compliance with the requirements of the said rule. It is doubtful  whether the principles underlying this rule can be said  to  be  applicable  to  an  appeal.  This  rule  is applicable only  to suits  and  cannot  in  terms  apply  to appeals. Even if 29 an appeal  be considered  to be a continuation of a suit for certain purposes, the provision of this rule cannot in terms be made applicable to an appeal in view of the scheme of the said rule and the language used therein. [53 F-G, 53 E-F]

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    In the  instant case  the provisions of Order 2, r.2 of the Code  do not  stand in  the way  of the appellant in the matter of  filing the  subsequent appeal No. 44. Even if the principles  underlying   Order  2,  r.2  are  considered  as applicable to  an appeal  the maintainability  of the appeal No. 44 cannot be held to be affected in any way as the cause of action  in respect  of the  present  appeal  is  entirely different from  the cause  of action  on which  the  earlier appeal was filed. [23 A-B, G]      Order 23,  r.1 of  the Code  does not also stand in the way of  the maintainability  of the  instant appeal  No. 44. Apart from  the incompetency  of the  earlier appeal No. 36, the subject matter of the said appeal was entirely different from the subject matter of the present appeal. [53 H, A-B]      The provisions of the Code of Civil Procedure contained in Order 20, r.11, Order 2. r. 2 and Order 23,r. 1 do not in terms deal  with any  question in  relation to  the right of appeal or  the extinguishment  thereof. These  provisions do not by  themselves confer  any right of appeal on a party or deprive any  party of  the right of appeal which a party may enjoy. These  are not  the statutory provisions which either confer a  right of  appeal on  a party or deprive a party of any such right. [54 B-C]      A mere  prayer for  postponement of payment of decretal amount or for payment thereof in instalments on the basis of the provisions  contained in  Order 20, r.11 (1) of the Code at a  time when  the decision  in the  suit  is  yet  to  be announced can  never be considered to amount to such conduct of the party as to deprive him his right to prefer an appeal against any  decree, if ultimately passed, and to disentitle him from filing an appeal against the decree. [55 G-H]      In the  matters of  litigation the  litigant who is not expected to  be familiar  with the  formalities of  law  and rules of  procedure is generally guided by the advice of his lawyers. The  statement  of  the  lawyers  recorded  by  the Division Bench in its judgment clearly goes to indicate that the lawyer  had advised  filing of  the earlier appeal under mistaken belief.  The act done by the defendant-appellant on the mistaken  advice of  a lawyer  cannot furnish  a  proper ground for depriving the defendant-appellant of his valuable statutory right  of preferring an appeal against the decree. The filing  of an  incompetent appeal on the mistaken advice of a lawyer cannot, in our opinion, reflect any such conduct on the  part of the defendant-appellant as to disentitle him to maintain the present appeal. [56 C, D; F, G]      The present  appeal No.  44 had  been filed long before the decree  had been drawn up, and, there can be no question of execution  of any decree at the time when that appeal was filed.  The   question  of  the  defendant-appellant  having obtained an  advantage under  the decree  does not therefore really arise. [59 A-B] 30

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2905 of 1981.      From the  Judgment and  Order dated the 19th June, 1981 of the Bombay High Court in Appeal No. 44 of 1981 in Suit No 540 of 1970.      F.S. Nariman, V. Tulzapurkar, R. Nariman, Srikant Singh and Rajan Karanjawala for the Appellants.      L.N. Sinha,  Attorney General  and P.  P. Singh for the Respondent.

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    The Judgment of the Court was delivered by      AMARENDRA NATH SEN, J. The maintainability of an appeal filed by  the defendant  in the  suit against a money-decree payable in  instalment after  the  defendant  had  filed  an appeal only  against the  part concerning the direction with regard to the instalments and had withdrawn the same, is the question for  consideration in  this appeal  by  certificate granted by  the High  Court under  Article 133  (1)  of  the Constitution.      The facts  material for  the purpose  of  the  decision involved in this appeal are brief and may be stated.      The State  Trading Corporation,  the respondent in this appeal, as plaintiff, filed a suit against the appellant who was the  defendant in  the suit  on the Original Side of the Bombay High  Court for  the enforcement  of the  plaintiff’s claim for  a large amount which inclusive of interest worked out to  over Rs.40,00,000.00.  For the  purpose of  deciding this appeal,  it does  not become  necessary to refer to the nature of  the claim and the averments made by the plaintiff in the  plaint for  claiming a  decree for  the said  amount against the defendant-appellant. The defendant appellant had contested the  claim. The defendant-appellant in the written statement had  denied the claim of the plaintiff-respondent, pleaded legal  as well  as equitable  set-off and had made a counter claim.  In due  course the  suit came up for hearing before Bharucha, J. It appears that on the conclusion of the hearing, the  defendant-appellant prayed that the defendant- appellant might be allowed to pay the decretal amount in the event of  a  decree  being  passed  against  the  defendant- appellant, in instalment in the 31 manner prayed  for in  an affidavit  containing such prayer, filed on  behalf of  the defendant. The learned single Judge for reasons  recorded in  his judgment  passed a  decree  in favour  of  the  plaintiff  respondent  for  a  sum  of  Rs. 40,00,000.00 with  costs quantified  at Rs.  42,750.00,  two counsel being  certified. The  learned Judge  dismissed  the counter claim  of the  defendant-appellant without any order as to  costs. The learned Judge in the concluding portion of the judgment observed as follows:           "Mr.  Thakkar  relied  upon  affidavits  filed  on      behalf of the 1st and 2nd defendants and sought for the      payment of the decretal amount a moratorium of 5 years,      and after  the expiration of these 5 years, instalments      of Rs. 4,00,000 per annum. He then left it to the Court      to fix such instalments as it deemed proper. Mr. Doctor      opposed the grant of any instalment.           Neither the  facts of  the suit nor the averments,      such as  they are, made in the affidavits would justify      the giving of an extended period for the payment of the      decretal amount.  In the circumstances I order that the      decretal amount  be paid  by monthly instalments of Rs.      3,50,000 each,  the first of such instalment to be paid      up  on   or  before  7th  March,  1981  and  subsequent      instalment on  or before the 7th day of each succeeding      month. The  plaintiffs shall  be at  liberty to execute      the decree  for the amount then due in the event of the      plaintiff committing  any one default in payment of the      said instalments."      Delivery  of   the  judgment   commenced  on  the  12th December, 1980 and was concluded on the 16th December, 1980. On the  day of  the conclusion  of the  judgment  i.e.  16th December,  1980,   three  precipes  were  addressed  by  the Advocates for  the defendant-appellant  to the  Prothonotary and  Senior  Master  of  the  Bombay  High  Court,  (1)  for

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certified copy  of the  decree when  drawn up, (2) certified copy of  the judgment  and (3)  for certified  copy  of  the minutes of  the order.  On the  16th of  January, 1981,  the Advocates for  the Defendant-Appellant addressed a letter to the Prothonotary and Senior Master, High Court Bombay to the following effect:           "Be pleased  to take on file the accompanying Memo      of appeal along with compilation in duplicate. We also 32      send herewith  Vakalatnama duly  signed by  our clients      the appellants  abovenamed. Kindly  take  the  same  on      file.           We have  to put on record that the appeal is under      Order 20, rule 11 of the Civil Procedure Code and Court      fee of  Rs. 5 is payable. We have to further state that      the appeal  is in  time as  certified copy of the order      and judgment  as well  as the decree was applied for on      16th December,  1980 but the same has not been received      by us. Appeal is therefore in time.           Kindly see  that the  said  appeal  is  circulated      before the  Chief Justice  and Hon’ble Mr. Justice Rege      and that  the same  appeal is  called on  Wednesday the      21st day of January, 1981".      The memorandum  of appeal  which was numbered as appeal No. 36  of 1981  and was  filed on 20.1.81 by the defendant- appellant states:-           "Being aggrieved  by the  judgment and order dated      16th December  by  the  Hon’ble  Mr.  Justice  Bharucha      directing payment  of the  Decretal amount  by  monthly      instalments of Rs. 3,50,000 each, the appellants beg to      appeal  therefrom   on  the   following  amongst  other      grounds".      In this memorandum of appeal directed against the order of instalments, the defendant-appellant had taken 21 grounds and each  of the  ground related to the order with regard to the payment  of decretal amount by monthly instalment of Rs. 3,50,000. This  appeal No.  36 of 1981 came up for admission before a  division Bench of the High Court consisting of the learned Chief  Justice and  Rege, J. on 21.1.81 and when the matter was  called on  for admission,  the counsel  for  the appellant asked  for leave  to withdraw  the appeal  and the appeal was allowed to be withdrawn. The minutes of the Court record-"Appeal allowed  to be  withdrawn". On  29.1.82  i.e. just after  a week  of the  withdrawal  of  the  appeal  No. 36/1981, the defendant-appellant filed an appeal against the judgment delivered  on 16th  December, 1980  by Bharucha, J. and this  appeal was  numbered as appeal No. 44 of 1981. The memorandum of appeal in this appeal states: "Being aggrieved by the judgment dated 33 16.12.1980, passed  by the Hon’ble Mr. Justice Bharucha, the appellant begs  to appeal therefrom on the following amongst other grounds."  In this memorandum of appeal, the appellant has taken  as many as 73 grounds out of which grounds nos. 1 to 53  relate to  Judgment and  decree  on  the  merits  and grounds 54  to 73 relate to the provision as to instalments. This appeal i.e. appeal no. 44 of 1981 came up for admission on 3.2.1981  before the same Bench consisting of the learned Chief Justice  and Rege,  J., when the plaintiff-respondents appeared through  their counsel and opposed the admission on the ground  that the appeal was not maintainable. The appeal was, however,  admitted and  the minutes  of the Court after noting the  appearances record-Admitted.  After  filing  the appeal, the  defendant-appellant, made  an  application  for stay of  the execution  of the  decree by  way of  notice of

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motion which was rejected by the division Bench. Against the said order  of refusal  to stay  execution, a  special leave petition was  filed in  this Court.  For the  propose of the present appeal,  it does  not become  necessary to  refer to this special  leave petition  and  the  proceedings  arising therefrom. The  appeal came up for hearing before a Division Bench on  the 24th  of March, 1981 and the hearing continued till 27th March, 1981 and on that date hearing of the appeal was adjourned to 8th April, 1981 as per following order:           "Having heard  Mr. Nariman  on the  merits of  the      appeal for almost four days though we had not heard the      respondents, we,  prima facie, were of the opinion that      there  was  force  and  substance  in  several  of  the      contentions raised and the arguments advanced on behalf      of the  appellants and  as the  second instalment under      the said  decree was  payable  by  April  8,  1981,  we      suspended the  operation of the decree appealed against      pending the  hearing and  final disposal  of  the  said      appeal."      Hearing of  the appeal commenced again on the adjourned date i.e.  8th April, 1981 in terms of the earlier order and continued for  some days.  It appears  that after the appeal had been  heard on  merits for  some days,  it was stated on behalf of the plaintiff respondent before the Division Bench that the plaintiff-respondent would be raising a preliminary objection as  to the  maintainability of  the appeal. It was stated on  behalf of the plaintiff-respondent that since the defendant-appellant had earlier filed an appeal, being 34 appeal no.  36  of  1981  against  the  provision  regarding instalments which  had been  withdrawn on  21.1.1981 by  the defendant-appellant,   plaintiff    respondent   would    be contending that  the present  appeal No.  44 of 1981 was not maintainable. It  appears that since the objection was taken at a  late stage after the learned counsel for the defendant appellant had  addressed the Court on merits for a number of days: the  Court permitted  the counsel  for  the  defendant appellant to complete the arguments and the Court thereafter proceeded  to   hear  the  respondent  on  the  question  of maintainability. On  19.6.1981, the Division Bench dismissed the appeal  up holding  the  preliminary  objection  to  the maintainability  of  the  appeal  on  the  ground  that  the defendant-appellant had,  by filing  appeal no.  36 of  1981 against the  provision relating  to  instalments  which  the defendant-appellant had  withdrawn, abandoned  its right  to challenge the decree on merits. The Division Bench, however, while dismissing  the appeal  substituted for  the decree of the Trial  Court a  decree for  the sum  of Rs. 40,18,737.38 with interest  on the principal amount of Rs. 18,18,451.39 @ 6 percent  per annum  from the date of the judgment till the payment or realisation and maintained the order for costs as passed by the Trial Court.      Aggrieved by  the judgment  and decree of the dismissal of the  appeal filed  by the defendant-appellant in the High Court on  the ground  that the  appeal was not maintainable, this appeal  has been  filed by the defendant appellant with certificate granted by the High Court.      Mr. Nariman, learned counsel appearing on behalf of the defendant-appellant, has  submitted that  the High Court has erred in  holding that  the instant appeal no. 44 of 1981 is not maintainable,  as the  defendant-appellant by filing the earlier appeal no. 36 of 1981 against the provision relating to instalments  had abandoned  its right  to  challenge  the decree on merits. The principal contention of Mr. Nariman is that the  filing of the earlier appeal no. 36 of 1981 or the

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withdrawal of  the same  by the defendant-appellant does not affect the  right of  the defendant-appellant  to prefer the present appeal  against the  decree on  merits and  does not preclude the  defendant appellant  from filing  the  present appeal and  proceeding with  the hearing thereof Mr. Nariman has argued  that the earlier appeal no. 36 of 1981 was filed against the  order of  the High Court passed under Order 20, rule 11  of the  Code of  Civil Procedure with regard to the instalments only  and the  said appeal  was  not  an  appeal against 35 the decree.  In support  of his  submission Mr.  Nariman has referred to  the precipe  filed on  behalf of the defendant- appellant, the  letter addressed  by the  Advocates for  the defendant  appellant  on  the  16th  January,  1981  to  the Prothonotary and  Senior Master,  High Court and also to the memorandum of  appeal filed in appeal no. 36 of 1981 and the stamps paid  on the  said memorandum  of appeal. Mr. Nariman has submitted  that the  earlier appeal no. 36 of 1981 which was an  appeal against an order was incompetent as no appeal lay from the said order. It is the submission of Mr. Nariman that the  right to prefer an appeal is a creature of Statute and unless the right to prefer an appeal is conferred by law a litigant  cannot prefer  any appeal.  Mr. Nariman  submits that an  order regarding  instalment is not appealable under the Code and such an order cannot also be considered to be a ’judgment’ within  the meaning  of cl.  15  of  the  Letters Patent. Mr.  Nariman, therefore,  contends that  the earlier appeal no.  36 of  1981 was  an incompetent  appeal and was, therefore, no  appeal in  the eye  of law  and for all legal purposes was  non-est. It  is the  contention of Mr. Nariman that as  the earlier  appeal no.  36 of 1981 was incompetent and non-est  in the eye of law, the filing of the appeal and its withdrawal do not have any legal consequence and cannot, in any  way, prejudice  the right of the defendant-appellant to prefer a proper appeal against the decree.      Mr. Nariman has next contended that notwithstanding the amendment introduced  in order  20,  rule  11  of  the  Code providing that  the order  of instalment  of payment  of the decretal amount  has to  be incorporated  in the decree, the said appeal  no. 36  of the  1981 still  must be  held to be incompetent, Mr.  Nariman argues  that the Rules of Original Side of  the High  Court  make  provisions  with  regard  to drawing up  of the  decree and  there is  a time-lag between judgment and  the drawing  up of  the  decree.  Mr.  Nariman points out  that as  the rules  of the  Original Side of the High Court  permit filing  of an  appeal without a certified copy of  the decree or order, appeal no. 36 of 1981 had been filed soon  after the  judgment had been pronounced and long before the  decree had been drawn up, and the said order had been filed  without the  certified copy  of the order or the decree in  terms of  the provisions of rules of the Original Side of  the High  Court. It  is the argument of Mr. Nariman that as the appeal no. 36 of 1981 had been filed long before the decree incorporating the order had been drawn up, appeal No. 36  of 1981  which had been filed only against the order regarding instalments must be 36 considered to be an appeal against the order and not against the decree.  Mr. Nariman  has further argued that even if it can be  said that Appeal no. 36 of 1981 has to be considered to be  an appeal  against the  decree in view of the amended provisions of  Order 20,  rule 11  of the Code, it cannot be disputed that  the said  appeal had  been  filed  without  a certified copy  of the  decree and  the said appeal had been

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withdrawn before  any certified  copy of the decree had been filed in the said appeal, and the said appeal must therefore be held  to be  no appeal  in the  eye of  law. Mr.  Nariman submits that  the later  appeal no.  44 of  1981 against the decree had  been filed  in terms of the provisions contained in the  Original Side rules of the Bombay High Court had the certified copy  of the judgment and decree had been filed in Appeal no.  44 of  1981. It  is Mr.  Nariman’s argument that appeal No. 44 of 1981 becomes a proper and competent appeal, as the earlier appeal no. 36 of 1981 could not be considered to be  a valid  appeal in  the eye of law at the time of the withdrawal of  the same in the absence of the certified copy being filed. Mr. Nariman argues that though by virtue of the provisions of  the Bombay  High Court Original Side Rules an appeal can  initially be  filed without  the certified copy, the certified  copy the  filing  of  which  is  a  mandatory requirement of  law has  to be  filed within  the period  of limitation before  the hearing  of the  appeal to render the appeal valid  and competent.  Mr. Nariman in this connection has referred  to the  decisions of this Court in Jagat Dhish Bhargava v. Jawaharlal Bhargava & Ors.(1) and Shakuntal Devi Jain v.  Kuntal Kumari  & Ors.(2)  Mr. Nariman  has  further argued that  there is  no provision in the Code or any other law which  prevents an  appellant from  preferring more than one appeal.  Relying on  the decision of this Court in Jagat Dhish Bhargava  (supra) Mr. Nariman has submitted that where the  decree   consists  of   distinct  and  severable  parts enforceable against the same or several defendants, separate appeals against  such distinct  and severable  directions or orders or  provisions in  a decree  may be  filed. It is Mr. Nariman’s argument  that in  the instant  case, even  if the order for  instalment be  considered to  be a  part  of  the decree,  the  decree  shall  consist  of  two  distinct  and severable parts,  (1) on  the merits of the claim and (2) on the question  of payment in instalment. Mr. Nariman has next contended that  the provisions  of Order  2, rule  2 of  the Civil  Procedure   Code  do   not  in  any  way  affect  the maintainability and the merits of the 37 present appeal  no. 44  of 1981.  He has  submitted that the said provisions  have no application to an appeal and in any event, the  cause of  action and  the subject  matter of the present appeal  are entirely  different from  the  cause  of action and  the subject  of the  earlier appeal. Mr. Nariman argues that  though this  Court in  the case  of Bijoyananda Patnaik v.  S. Sahu(1) has held that the provisions of Order 23, rule 1 of the Code of Civil Procedure will be applicable to the withdrawal of an appeal, the provisions will also not preclude the appellant from filing the present Appeal no. 44 of 1981.  It is  his  submission  that  in  considering  the provisions of  order 23,  rule 1,  the relevant  fact to  be borne in mind is the subject matter of the appeal and if the subject matter of the appeal be different, as in the present case it is,-the earlier appeal no. 36 of 1981 being confined to the  subject matter  of  instalment  and  the  subsequent appeal no. 44 of 1981 being against the decree on the merits of the  claim,-the withdrawal  of the earlier appeal cannot, in  any  way,  be  a  bar  to  the  maintainability  of  the subsequent  appeal.  Mr.  Nariman  has  in  this  connection referred to  the decision of this Court in Vallabhdas v. Dr. Madan Lal  & Ors.(2) in which this Court equated the meaning of the  words "subject  matter" in  order 23 rule 1 with the meaning of  the words  "cause of action" in Order 23 rule 2. Relying on  this decision,  Mr. Nariman  has argued that the "subject matter"  of the  appeal within the meaning of Order

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23, rule  1, must  be considered in the light of the meaning of the words "cause of action" in Order 2, rule 2; and it is his argument that as the "cause of action" in respect of the claim for  instalment is  entirely different from the "cause of action"  in respect  of decree  which embraces within its fold the  ‘subject matter"  of the  respective claims of the parties in  the suit,  the withdrawal  of the earlier appeal no. 36  of 1981  against the  instalments cannot  in any way affect the  maintainability of  the appeal  no. 44  of  1981 against the decree on the merits of the claim.      Mr. Nariman  does not  dispute that though the right of an appeal is a statutory right enjoyed by a party, the party in an  appropriate case may lose his right of appeal. But he submits that  a  very  strong  case  must  be  made  out  to establish that  a party has forfeited his right to prefer an appeal. According to Mr. Nariman, the right 38 of appeal  may be  lost because  of any provision of law and also in appropriate cases, the parties may lose his right of appeal because  of his conduct. Mr. Nariman contends that in the instant case, the present appeal is within time; and the provisions of the Code earlier referred to or the provisions of any other law do not have the effect of extinguishing the right of  the appellant  to prefer  an  appeal  against  the decree. Mr. Nariman submits that the facts and circumstances of this  case cannot justifiably lead to the conclusion that the appellant by his conduct has disentitled himself to file the present  appeal against  the decree.  He argues that the conduct that  can be  attributed to the appellant is that he prayed for  instalments, filed  an appeal  against the order regarding instalments  and he  has withdrawn  the  same.  He reiterates that  if the  earlier appeal  against  the  order regarding the  instalments is  held to  be incompetent,  the conduct of  the appellant  in  withdrawing  the  incompetent appeal is  indeed of no consequence. Mr. Nariman argues that the prayer for instalments is made only on the basis that if the case  of the  appellant is  not accepted and a decree is passed against him, the appellant may be granted instalments to pay  the decretal amount and such a prayer when it is not known whether  a decree  will at  all be  passed against the appellant  and   if  so,  for  what  amount,  can  never  be considered to  amount to  such conduct  as to  disentitle or preclude him  from filing  an appeal against the decree. Mr. Nariman argues  that it  cannot be  said that in the instant case the  defendant-appellant has elected to exercise one of two alternatives  remedies and by virtue of such election he has deprived himself from exercising the other right, as the defendant-appellant has both the remedies open to him and no question of election on his part arises. Mr. Nariman submits that in  the facts  and circumstances of this case it cannot legitimately be held that the appellant waived his statutory right to  file an  appeal against  the decree  and otherwise became  estopped   from  exercising   his  right.   In  this connection Mr.  Nariman has  referred to  Halsbury’s Laws of England, 4th  Edn., vol 16, paras 1471,1472,1473 and 1474 at pages 992 to 996 which read as follows:           "1471. Waiver.  -Waiver is  the abandonment  of  a      right in such a way that the other party is entitled to      plead  the   abandonment  by   way  of  confession  and      avoidance if  the right  is thereafter asserted, and is      either  express   or  implied   from  conduct.  It  may      sometimes resemble a form of election, and sometimes be      based on  ordinary principles  of  estoppel,  although,      unlike estoppel, 39

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    waiver  must   always  be   an  intentional   act  with      knowledge. A  person who  is  entitled  to  rely  on  a      stipulation, existing  for  his  benefit  alone,  in  a      contract or of a statutory provision, may waive it, and      allow the  contract of transaction to proceed as though      the stipulation  or provision  did not exist. Waiver of      this kind  depends upon  consent, and the fact that the      other   party   has   acted   on   it   is   sufficient      consideration. Where  the waiver  is not express it may      be implied  from conduct which is inconsistent with the      continuance of  the right,  without need for writing or      for consideration  moving from,  or detriment  to,  the      party, who  benefits by  the waiver;  but mere  acts of      indulgence will  not amount  to waiver; nor can a party      benefit from  the waiver  unless  he  has  altered  his      position  in   reliance  on   it.  The  waiver  may  be      terminated by  reasonable but  not  necessarily  formal      notice unless  the party  who benefits  by  the  waiver      cannot resume  his position, or termination would cause      injustice to  him. It seems that, in general, where one      party has, by his words or conduct, made to the other a      promise or  assurance which  was intended to affect the      legal  relations  between  them  and  to  be  acted  on      accordingly, then,  once the  other party has taken him      at his  word and  acted on  it,  so  as  to  alter  his      position, the  party who  gave the promise or assurance      cannot afterwards  be allowed to revert to the previous      legal relationship  as if  no such promise or assurance      had been  made by  him, but  he must accept their legal      relations subject  to the  qualification which  he  has      himself so  introduced, even though it is not supported      in point of law by any consideration.           Where the  right  is  a  right  of  action  or  an      interest in  property, an  express waiver  depends upon      the same  consideration as  a release.  If it is a mere      statement of  an intention not to insist upon the right      it is not effectual unless made with consideration, but      where there is consideration the statement amounts to a      promise and  operates as a release. Even where there is      no express  waiver the person entitled to the right may      so  conduct  himself  that  it  become  inequitable  to      enforce  it   (this  is  sometimes  called  an  implied      waiver), but  in such  cases the  right is  lost on the      ground either of estoppel or of 40      acquiescence,  whether  by  itself  or  accompanied  by      delay. Where  it is  claimed that  the  decision  of  a      tribunal is a nullity, a party’s right of action in the      High Court is not waived by appeal to a higher tribunal      whose decision is expressed by Parliament to be final.           1472. Knowledge of rights essential. For a release      or waiver  to be  effectual it  is essential  that  the      person granting  it should  be fully informed as to his      rights.  Similarly,   a  confirmation   of  an  invalid      transaction,   is   inoperative   unless   the   person      confirming knows of its invalidity.           1473.   Estoppel   and   acquiescene.   The   term      ’acquiescence’ is  used where  a person  refrains  from      seeking redress  when there  is brought to his notice a      violation of his rights of which he did not know at the      time, and  in that  sense acquiescence is an element in      laches. Subject  to this,  a a person whose rights have      been infringed  without any  knowledge or assent on his      part has  vested in  him a  right or action which, as a      general rule,  cannot be  delivered without  accord and

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    satisfaction or release under seal.           The term, is however, properly used where a person      having a  right, and  seeing another  person  about  to      commit it in the course of committing an act infringing      upon the right, stands by in such a manner as really to      induce the  person committing  the act,  and who  might      otherwise have  abstained from  it, to  believe that he      assents to its being committed, a person so standing by      cannot afterwards  be heard  to complain of the act. In      that sense  the doctrine of acquiescence may be defined      as quiscence  under such circumstance that assent my be      reasonably inferred  from it,  and is  no more  than an      instance of  the law  of estoppel  by words or conduct,      the principle  of estoppel  by representation  applying      both at  law and in equity, although its application to      acquiescene is  equitable. The  estoppel rests upon the      circumstance that  the person  standing  by  in  effect      makes a misrepresentation as to a fact, namely, his own      title;  a   mere  statement   that  he  intends  to  do      something, for 41      example, to  abandon his right, is not enough. Further-      more, equitable  estoppel is not applied in favour of a      volunteer           The  doctrine   of  acquiescene  operating  as  an      estoppel was founded on fraud, and for the reason is no      less applicable when the person standing by is a minor.      As the  estoppel is  raised immediately  by the conduct      giving raise  to it  lapse of time is of no importance,      and  for  the  reason  the  effect  of  acquiscence  is      expressly preserved by statute.           1474. Elements  in the  estoppel: When A stands by      while his  right is  being infringed by B the following      circumstances must  as a  general rule  be  present  in      order that  the estoppel may be raised against A: (1) B      must be  mistaken as  to his own legal rights: if he is      aware that  he is  infringing the rights of another, he      takes the  risk of  those rights  being asserted; (2) B      must expend  money, or do some act, on the faith of his      mistaken belief:  otherwise, he  does not suffer by A’s      subsequent assertion of his rights; (3) acquiescence is      founded on  conduct with  a knowledge  of  one’s  legal      rights, and  hence A must know of his own rights; (4) A      must know  of B’s  mistaken belief; with that knowledge      it is  inequitable for him to keep alliance and allow B      to proceed  on his  mistake; (5)  A must encourage B in      his expenditure  of money or other act, either directly      or by abstaining from asserting his legal right. On the      other  hand  there  is  no  hard  and  fast  rule  that      ignorance of  a legal right is a bar to acquiescence in      a breach  of trust,  but the whole of the circumstances      must be  looked at  to see  whether it  is just  that a      complaining  beneficiary   should  proceed   against  a      trustee."      Mr. Nariman  has argued  that in  the instant  case the plaintiff respondent  has  claimed  against  the  defendant- appellant a  very large  sum of money and the claim has been very seriously  centested by the defendant-appellant who has not merely  disputed the  claim of  the plaintiff-respondent but has in fact made a counter-claim in the suit against the plaintiff-respondent. He  points out  that immediately after the pronouncement  of the judgment, three separate precipies or requisitions have been put in on behalf of the defendant- appellant. In  view of  the urgency  of  the  situation,  an appeal had immediately

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42 been filed  against the  order of  instalment for  immediate relief and  thereafter an appeal against the decree had been filed after  the earlier  appeal against the instalments had been withdrawn.  He has submitted that under these facts and circumstances it  can never  be said  that the appellant had accepted the decree and had abandoned its right to prefer an appeal against  the same. Mr. Nariman further submits that a litigant usually  proceeds on  the advice  of his lawyer and the mistaken  advice of a lawyer cannot be the foundation of the plea  of estoppel  and in  support of  his submission he relies on the decision of the Judicial Committee in the case of John  Agabog Vertannes  & Ors. v. James Golder Robinson & Another.(1) He  has further  argued that in the instant case no possible prejudice has been done to the respondent by the filing  or   withdrawal  of   the  earlier  appeal  and  the respondent could  never, in  any way, be under an impression that by  the institution  of appeal  No.  36  of  1981,  the appellant had  unequivocally given  up his  right to  appeal from the  decree on  merits. Mr.  Nariman has commented that the Division  Bench had  admitted this  appeal  despite  the objection of  the plaintiff-respondent and it is his comment that after having admitted the appeal the Division Bench had in fact  heard the  appeal for  a number of days. He submits that  the   Division  Bench   should  not  have,  therefore, entertained the  plea of  maintainability and  the  Division Bench should  not have  dismissed the  appeal on  the ground that the appeal is not maintainable and it is his submission that the  said view  of the  Division  Bench  is  any  event erroneous and unsustainable in law.      The learned  Attorney General,  appearing on  behalf of the plaintiff-respondent,  has submitted  that the  Division Bench  in  the  instant  case  has  correctly  come  to  the conclusion that  the  appeal  preferred  by  the  defendant- appellant against  the decree is not maintainable in view of the filing  of the earlier appeal by the defendant appellant against  the   provision  regarding   instalments  and   the withdrawal of  the same.  The learned  Attorney-General  has argued  that   the  provision   in  the  judgment  regarding instalments on the basis of the affidavit filed on behalf of the defendant-appellant  forms part of the decree and cannot be considered  to be  an order. The learned Attorney-General has in  this connection  referred to  the amended provisions contained in  Order  20,  rule  11  of  the  Code  of  Civil Procedure.  Relying   on  these   provisions,  the   learned Attorney-General   contends   that   the   order   regarding instalments which is required to 43 be incorporated  in the  decree, necessarily forms a part of the decree  itself. It  is his contention that the mere fact that it  may take  a little  time to  draw  up  the  decree, incorporating the  provisions regarding instalments does not make the  provisions any  the less  a part of the decree. He argues that it was open to the appellant to prefer an appeal against the  decree and  it was  also open  to him to appeal against any  part thereof.  It  is  his  argument  that  the appellant preferred  to file an appeal only against the part of the  decree  regarding  instalments  without  filing  any appeal against  the decree  as a whole. He contends that the filing of  a restricted  appeal against  the directions  for instalments bars  any subsequent  appeal against  the amount decreed on merits. In support of this contention the learned Attorney General has referred to the provisions contained in Order 2, rule 2 and to order 23, rule 1 of the Code of Civil Procedure. Order  2, rule  2 of  the Code of Civil Procedure

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provides :-      "(1) Every suit  shall include  the whole  of the claim           which the plaintiff is entitled to make in respect           of the  cause  of  action,  but  a  plaintiff  may           relinquish any  portion of  his claim  in order to           bring the  suit within  the  jurisdiction  of  any           Court.      (2)  where a  plaintiff omits  to sue in respect of, or           intentionally relinquishes,  any  portion  of  his           claim, he  shall not  afterwards sue in respect of           the portion so omitted or relinquished.      (3)  A person  entitled to  more  than  one  relief  in           respect of  the same  cause of  action may sue for           all or  any of  such reliefs:  but  if  he  omits,           except with the leave of the Court, to sue for all           such reliefs,  he shall not afterwards sue for any           relief so omitted.           Explanation :-  For the  purposes of  this rule an      obligation  and   a   collateral   security   for   its      performance and  successive claims  arising  under  the      same  obligation   shall  be   deemed  respectively  to      constitute but one cause of action." Order 23, rule 1 of the Code of Civil Procedure reads :-      (1)  At any  time after  the institution of a suit, the           plaintiff  may  as  against  all  or  any  of  the           defendants abandon  his suit  or abandon a part of           his claim : 44           Provided that  where the  plaintiff is  a minor or      other person  to whom the provisions contained in Rules      1 to 14 of Order XXXII extend, neither the suit nor any      part of  the claim shall be abandoned without the leave      of the Court.      The  Attorney  General  argues  that  an  appeal  is  a continuation of the suit and the principles underlying Order 2, rule 2, therefore, apply to an appeal. It is his argument that the right of appeal which is no doubt a statutory right will also necessarily be governed by the provisions of Order 2, rule  2 and as the appeal is filed not against the entire subject matter  of appeal arising out of the cause of action in the  appeal, the right to file another appeal against the decree is  clearly lost.  He has  further submitted that the defendant appellant  having chosen  to file  an appeal  only against a  part of the decree confined to the payment of the decretal amount in instalments and not against the decree on its  merits   and   having   withdrawn   the   said   appeal unconditionally has  clearly forfeited  his right  to prefer the instant appeal.      The learned Attorney General has next contended that in the instant  case apart  from the  aspect that  the right of appeal has  been extinguished  by virtue  of  the  statutory provisions earlier referred to, the defendant appellant must be held  to have  clearly abandoned  or waived  his right of preferring an  appeal against the decree by filing an appeal only against the part of the decree directing the payment of the decretal  amount in  instalments. It  is the argument of the Learned  Attorney General  that defendent-appellant  had the right  to prefer  an appeal  against the  whole  of  the decree, if  he had  felt aggrieved  by the  same. He submits that if  the defendant-appellant does not have any grievance against the  decree on  merits but is only aggrieved against the  par  of  the  decree  providing  for  instalments,  the defendant-appellant would  not certainly  exercise his right of appeal  against the decree on merits against which he had no grievance,  and  the  defendant-appellant  has  filed  an

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appeal  only  against  the  part  against  which  he  had  a grievance. He  submits that  the defendant-appellant  having done so,  must be  held to  have waived his right to file an appeal against the decree on merits.      The learned  Attorney General  has argued  that in  any event the  defendant-appellant is  estopped from  exercising his right  of appeal in view of the fact that the defendant- appellant has asked for 45 and  obtained  a  decree  payable  in  instalments  and  the defendant-appellant  has   taken  advantage   of  the   said instalment  decree   to  the  prejudice  of  the  plaintiff- respondent. It  is his  argument that  it is not open to the defendant-appellant to  question the  validity of the decree after he  has obtained  benefit under  the same. The Learned Attorney General contends that although a right to prefer an appeal is  a right  conferred by  the  Statute  on  a  party aggrieved, the  aggrieved  party  may  be  estopped  and  or precluded from  asserting or  exercising the right of appeal under given  circumstances. He  submits that is well-settled that if  any party  takes advantage of an order or decree or derives benefit  under the  same, he  disentitles himself by his conduct  to question  the validity  of the  order or the decree. The learned Attorney General sums up submitting that in the  instant case,  the defendant-  appellant is  clearly estopped from  filing appeal  No. 44  of  1981  against  the decree and  the said  appeal filed  by the  appellant is not maintainable because of the following circumstances :-      1.   The defendant-appellant  has asked for the payment           of the decretal amount in instalments;      2.   The  defendant-appellant   had  filed  appeal  No.           36/1981 against the decree only with regard to the           instalments allowed  and the  defendant  appellant           had not  filed any  appeal against the decree as a           whole questioning the correctness of the decree;      3.   The defendant-appellant had subsequently withdrawn           the appeal  no. 36/1981  filed against  the decree           without obtaining  any leave  of the court to file           any fresh or subsequent appeal; and      4.   The defendant-appellant  having asked  for payment           of the  decretal amount  in instalments and having           obtained such  a decree has enjoyed the benefit of           such a  decree to  the prejudice  of the plaintiff           respondent who  was prevented  from executing  the           decree for  recovering the  entire decretal amount           immediately in  view of  the provisions  regarding           payment in instalments and had suffered prejudice;           and the  defendant  appellant  having  obtained  a           benefit or  advantage  under  the  decree  to  the           prejudice of the 46           plaintiff-respondent  cannot  now  turn  round  to           question the correctness of the decree passed.      The right  to prefer  an appeal  is a  right created by Statute. No  party can  file an appeal against any judgment, decree or  order as  a matter  of course in the absence of a suitable provisions  of some  law conferring  on  the  party concerned the  right to file an appeal against any judgment, decree or  order. The  right of  appeal so  conferred on any party may  be lost  to the party in appropriate cases by the provisions of some law and also by the conduct of the party. The law  of limitation  may deprive  a party of the right he may enjoy  to prefer  an appeal  by virtue  of any statutory provisions. Also,  in appropriate  cases a party may be held to have  become disentitled  from  enforcing  the  right  of

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appeal which he may otherwise have.      In the present case there cannot be any manner of doubt that the  defendant appellant  did have  a right  of  appeal against the  decree by  virtue of the provisions of the Code of Civil  Procedure. S.  96 of  the Code, read with O. 41 of the Code  makes it  abundantly clear that an appeal with lie from an  original decree. It is also not in dispute that the appeal has  been filed  within the period of limitation. The law of  limitation, therefore,  does not defeat the right of the appellant to file appeal.      The provisions of Order 20, rule 11, in our opinion, do not deprive  the appellant  in the instant case of his right to prefer  an appeal  against the decree. Order 20, rule 11, of the Code provides as follows :-      "(1) Where and in so far as a decree is for the payment           of money,  the Court may for any sufficient reason           at the  time of  passing  the  decree  order  that           payment of the amount decree shall be postponed or           shall be  made by  instalments,  with  or  without           interest, not  withstanding anything  contained in           the contract under which the money is payable.      (2)  After the  passing of  any such  decree the  Court           may, on  the application  of the  judgment-debtor,           and with  consent of the decree-holder, order that           payment of the decreed shall be postponed or shall           be made  by instalments  on such  terms as  to the           payment of inte- 47           rest,  the  attachment  of  the  property  of  the           judgment-debtor, or  the taking  of  the  security           from him, or otherwise as it thinks fit."      By the C.P.C. Amendment Act, 1976, O. 20, R, 11 (1) was amended and the amended rule reads :-      "(1) Where and in so far as a decree is for the payment           of money,  the Court may for any sufficient reason           (incorporate in  the decree, after hearing such of           the parties  who had  appeared  personally  or  by           pleader at  the last  hearing, before judgment, an           order that) payment of the amount decreed shall be           postponed or shall be made by instalments, with or           without   interest,    notwithstanding    anything           contained in the contract under which the money is           payable."      Order  20,   rule  20,  rule  11  makes  provision  for postponement of payment of a money decree and of its payment in instalments  and lays  down the  procedure for  directing payment of  a money  decree in  instalments.  The  amendment introduced in  O. 20, rule 11, (1) by the Amending Act, 1976 requires that  any provision  directing that  payment of the amount decreed  shall be  postponed  or  shall  be  made  by instalments may  be incorporated  in the  decree. In view of the  provisions  requiring  the  order  of  postponement  of payment of money decree or payment thereof in instalments to be  incorporated   in   the   decree,   the   question   for consideration is  whether the  earlier appeal  filed against the provision  in relation  to  instalments,  is  an  appeal against the  decree or  against an  order, and  the  further question is whether the said appeal was competent or not. If the earlier  appeal is considered to be an appeal against an order, the  earlier appeal  will clearly  be incompetent. An appeal  against   any  provision   granting  instalments  or refusing to  grant instalments  will not be competent if the direction  granting  or  refusing  to  grant  instalment  is considered to  be an  order. Such an order is not appealable under the  Code. Such an order will also not be a ’judgment’

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within the  meaning of cl. 15 of the Letters Patent and will not be appealable as such. There is, indeed, no provision in any law  to make  such an order appealable. If, however, the direction with  regard to  instalments is considered to be a part of  the decree,  an appeal  will undoubtedly  lie as an appeal from  a decree.  In the  instant case,  the facts and circumstances go to indicate that the defendant-appellant 48 had,  in   fact,  filed  an  appeal  against  the  direction regarding instalment  treating the  same to be an order. The precipe filed, the letter addressed by the Advocates for the defendant-appellant  dated   16th  January,   1981  to   the Prothonotary and  Senior Master  High Court  of Bombay,  the memorandum of  appeal filed  and the  stamp furnished on the memorandum, all  go to indicate that the appeal filed was an appeal against  an order.  If Mr.  Nariman’s contention that the earlier  appeal No.  36 of 1981 was an appeal against an order is  accepted, the  said appeal  must  be  held  to  be incompetent. There  appears to be force in the contention of Mr. Nariman  that the  earlier appeal  No. 36 of 1981 was an appeal  against  an  order  notwithstanding  the  provisions contained in Order 20, rule 11 of the Code. The rules of the Original Side  of  the  Bombay  High  Court  make  necessary provisions as  to the drawing up of a decree. An order under Order 20,  rule 11  of the  Code can only be incorporated in the decree  when the  decree is  drawn up.  The rules of the Original Side  of  the  Bombay  High  Court  make  necessary provisions as  to the drawing up of a decree. In view of the procedure laid  down in  the rules  for the  drawing up of a decree, there is bound to be a time lag between the judgment and the  drawing up of a decree in which the order regarding instalment is to be incorporated. Mr. Nariman rightly points out that  the earlier  appeal No.  36 of 1981 had been filed long  before   the  decree  in  which  the  order  regarding instalments under  Order 20,  rule 11  of the Code had to be incorporated, had  been drawn up and had come into existence with the  orders incorporated  therein. There  appears to be force in  the contention  of Mr. Nariman that so long as the decree incorporating  the order regarding the instalments in terms of  the provisions contained in the amended provisions of Order  20, rule  11 of  the Code  is not  drawn  up,  the direction  or   order  regarding   instalments  retains  the character of an order in law.      Order 20,  rule 11  of the Code clearly postulates that the direction  regarding postponement  of payment  of  money decree or  payment thereof  in instalments is an independent order which  is to be incorporated in the decree. Appeal No. 36 of  1981 had  been filed  soon after the pronouncement of the judgment,  before the  decree  incorporating  the  order regarding the  instalments had  been drawn up. The direction regarding payment  of the  decretal amount is an order which is required to be incorporated in the decree and it can only be incorporated  in the decree, when the decree is drawn up. It  retains  the  character  of  an  order  till  it  is  so incorporated in  the decree.  As at  the time  of filing the earlier  appeal   No.  36   of  1981   the  order  regarding instalments had  not been  incorporated in  the decree,  the order retained 49 its character of an order. The earlier appeal No. 36 of 1981 at the  time when it was filed, should therefore be regarded as an  appeal against  an order.  The precipe  filed for the drawing up  of the order, the letter to the Prothonotary and Senior Master  of the  High Court  by the  Advocates for the defendant-appellant, the  memorandum appeal  filed  and  the

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amount of  stamp furnished on the memorandum are facts which go to  indicate that  the  earlier  appeal  had  been  filed against an  order regarding instalments treating the same to be an order.      Even  if  we  accept  the  contention  of  the  learned Attorney General that the earlier appeal No. 36 of 1981 must in law  be held  to be  an appeal  against a  decree, as the order regarding instalments has to form in law a part of the decree by virtue of the provisions contained in amended rule 11 of  order 20  of the  Code,  the  appeal  will  still  be incompetent, because  the defendant-appellant  had furnished the amount  of stamp  necessary  for  preferring  an  appeal against an  order and  the requisite  stamp in respect of an appeal against a decree had not been affixed. If the earlier appeal No.  36 of 1981 were to be considered to be an appeal against the  decree, the  appeal would  not be competent for want of payment of requisite Court fee payable in respect of an appeal  against the  decree.  Though  by  virtue  of  the provisions contained  in the Original Side Rules of the High Court an  appeal may  be filed without the certified copy of the decree  or order a provision made to enable the party to seek immediate  interim relief from the Appellate Court,-the further requirement  to file  a certified copy of the decree in the  case of an appeal from a decree within the period of limitation to  make the appeal valid and competent has still to be  satisfied: Unless  a certified  copy of the decree is filed, the  appeal does  not become competent and the appeal is liable to be dismissed as incompetent and invalid for not filing the certified copy of the decree within the period of limitation. So  long as  the certified copy of the decree is not filed there is no valid appeal in the eye of law. In the case of  Jagat Dhish Bhargava v. Jawaharlal Bhargava (supra) this Court held at page 922:-           "The  position  of  law  under  O.  41,  r.  1  is      absolutely clear.  Under the said rule every appeal has      to be  preferred in  the form of a memorandum signed by      the appellant or his pleader and presented to the Court      or to  such officer  as it appoints in that behalf, and      has to  be accompanied by a copy of the decree appealed      from, and  of the judgment on which it is founded. Rule      1 empowers the 50      appellate Court  to dispense  with the  filing  of  the      judgment but  there is no jurisdiction in the appellate      Court to  dispense with the filing of the decree. Where      the decree consists of different distinct and severable      directions enforceable  against  the  same  or  several      defendants the  Court may  permit the  filing  of  such      portions of the decree as are the subject matter of the      appeal but  that is  a problem  with which  we are  not      concerned in the present case. In law the appeal is not      so much  against the  judgment as  against the  decree;      that  is   why  Article   156  of  the  Limitation  Act      prescribes a  period of  90 days  for such  appeals and      provides that the period commences to run from the date      of the decree under appeal. Therefore there is no doubt      that the  requirements that  the decree should be filed      along with  the memorandum  of appeal is mandatory, and      in the  absence of  the decree the filing of the appeal      would be incomplete, defective and incompetent."      Also in  the case  of Shankuntala Devi v. Kuntal Kumari (supra), this Court held at pp. 1008 to 1010:           "Order 41,  rule 1 of the Code provides that every      appeal shall  be preferred  in the form of a memorandum      signed  by  the  appellant  or  his  pleader  ’and  the

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    memorandum shall be accompanied by a copy of the decree      appealed from and (unless the appellate court dispenses      therewith) of  the judgment  on which  it is  founded’.      Under 0.41,  r. 1 the appellate Court can dispense with      the filing  of the  copy of  the judgment but it has no      power to  dispense with  the filing  of the copy of the      decree. A  decree and  a judgment  are public documents      and under  S. 77  of the  Evidence Act only a certified      copy may  be produced  in proof  of their contents. The      memorandum of  appeal is  not validly presented, unless      it is accompanied by certified copies of the decree and      the judgment.           The contention  of Mr.  Misra is  that a decree is      the formal  expression of  the  adjudication  and  that      where, as  in this  case, no formal decree is drawn up,      the determination  under sec.  47 is a judgment and the      Court having  admitted the  appeal must  be presumed to      have 51      dispensed with  the filing of the copy of the judgment.      In this  connection he drew our attention to sec. 2(2),      33 and  0.20 rules  1, 4,  6. We  are unable  to accept      these contentions.  We are  not satisfied that the High      Court dispensed  with the  filing of  the copy  of  the      order under Sec. 47. Admittedly, the High Court did not      pass any  express order  to that effect. It may be that      in a  proper case such an order may be implied from the      fact that  the High Court admitted the appeal after its      attention was  drawn to  the defect [see G.I.P. Railway      Co. v.  Radhakissan(1)]. But  in the  present case  the      High Court  was not  aware of  the defect  and did  not      intend to dispense with the filing of the copy.           Moreover an  order under  Sec. 47 is a decree, and      the High Court had no power to dispense with the filing      of a  copy of the decree. Ordinarily a decree means the      formal expression  of the  adjudication in  a suit. The      decree follows  the  judgment  and  must  be  drawn  up      separately. But  under sec.  2(2), the term ’decree’ is      deemed to  include the  determination of  any  question      within sec.  47. This  inclusive definition  of  decree      applies to  0.41, r.  1. In  some courts,  the decision      under sec.  47 is required to be formally drawn up as a      decree in  that case  the memorandum  of appeal must be      accompanied by  a copy  of the  decree as  well as  the      judgment. But  in some  other Courts no separate decree      is drawn  up embodying  the adjudication under sec. 47.      In such  a case,  the decision  under sec.  47  is  the      decree and  also the  judgment, and  the  filing  of  a      certified copy of the decision is sufficient compliance      with 0.41,  r. 1.  As the  decision is  the decree  the      appeal is  incompetent unless  the memorandum of appeal      is accompanied by a certified copy of the decision. Our      attention was  drawn to  the decision  in  Bodh  Narain      Mahto v.  Mahabir Prasad  & Ors.(2)  where Agarwala, J.      seems to  have held  that where  no formal  decree  was      prepared in  the case  of a  decision under  sec.47 the      appellant was  not required to file a copy of the order      with the memorandum of appeal. We are unable 52      to agree  with this  ruling. The  correct practice  was      laid down  in Kamla Devi v. Tarapada Mukherjee(1) where      Mookerjee, J. observed:                ’Now it  frequently happens  that in cases of           execution proceedings, though there is a judgment,           an order,  that is,  the formal  expression of the

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         decision is  not  drawn  up.  In  such  cases  the           concluding portion  of the judgment which embodies           the order  may be  treated as  the  order  against           which the  appeal is  preferred. In such a case it           would be sufficient for the appellant to attach to           his memorandum  of appeal  a copy  of the judgment           alone, and  time should  run from  the date of the           judgment. Where,  however, as  in the  case before           us, there is a judgment stating the grounds of the           decision and  a separate  order is  also drawn  up           embodying the  formal expression  of the decision,           copies of  both the  documents must be attached to           the memorandum, and the appellant is entitled to a           deduction of the time taken up in obtaining copies           thereof.           We hold  that the  memorandum of  appeal from  the      order  dated   January  20,   1967  should   have  been      accompanied by a certified copy of the order and in the      absence  of  the  requisite  copy  of  the  appeal  was      defective and incompetent."      Though by virtue of the provisions of the Original Side Rules of  the Bombay  High Court the earlier appeal could be permitted to be filed without a certified copy of the decree or order, the appeal would not be valid and competent unless the further  requirement of  filing the  certified copy  had been complied  with. At the time when the earlier appeal no. 36 of  1981 had  been withdrawn,  the certified  copy of the decree had  not been  filed. The  said  appeal  without  the certified copy of the decree remained an incompetent appeal. The withdrawal of an incompetent appeal which will indeed be no appeal  in the eye of law cannot in any way prejudice the right of any appellant to file a proper appeal, if the right of appeal  is not otherwise lost by lapse of time or for any other valid  reason. We  are, therefore, of the opinion that the provisions contained in order 20, 53 rule 11 of the Code do not in the facts and circumstances of the present  case deprive the appellant of his right to file an appeal against the decree.      The provisions  of O.  2, rule  2 of  the Code of Civil Procedure do  not stand  in the  way of the appellant in the matter of filing the subsequent Appeal no. 44 of 1981. Order 2, rule  2 deals  with suits  and provides  that every  suit shall include  the whole of the claim which the plaintiff is entitled to  make in  respect of  a cause  of action,  but a plaintiff may  relinquish any  portion of his claim in order to bring  the suit  within the  jurisdiction of  any  court. Order 2, rule 2(2) further provides that where the plaintiff omits to  sue in  respect of, or intentionally relinquishes, any portion  of his  claim, he  shall not  afterwards sue in respect of  the portion  so  omitted  or  relinquished.  The requirement of  Order 2, rule 2(3) is that a person entitled to more  than one  relief in  respect of  the same  cause of action may  sue for  all or  any of  such reliefs; but if he omits, except  with the  leave of  the Court, to sue for all such reliefs,  he shall not afterwards sue for any relief so omitted. The  explanation provides  that for the purposes of this rule  an obligation  and a  collateral security for its performance and  successive claims  arising under  the  same obligation shall  be deemed  respectively to  constitute but one cause  of action.  It is  clear from  the provisions  of Order 2,  rule 2  that this rule is applicable only to suits and cannot  in terms  apply to appeals. Even if an appeal be considered to  be a  continuation  of  a  suit  for  certain purposes, the  provision of  Order 2, rule 2 cannot in terms

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be made applicable to an appeal in view of the scheme of the said rule  and the  language used  therein. Order 2, rule 2, contemplates that at the initial stage of the institution of the suit,  the whole  of the  claim which  the plaintiff  is entitled to  make in  respect of the cause of action, has to be made  and further  deals with  the consequences  of  non- compliance with  the requirements  of the  said rule.  It is indeed doubtful  whether the principles underlying this rule can be  said to  be applicable  to an  appeal. Even  if  the principles underlying  Order 2,  rule 2 can be considered to apply to  an appeal, the maintainability of the instant case cannot be  held to  be affected  in any  way as the cause of action  in   respect  of  the  present  appeal  is  entirely different from the cause of action on the basis of which the earlier appeal had been filed.      Order 23,  rule 1  of the  Code of Civil Procedure does not also  stand in  the way  of the  maintainability of  the instant appeal. The 54 withdrawal of the earlier appeal which was not competent and was no  appeal in  the eye  of the  law and  which was  only concerned with  regard to the provision of instalment cannot in any  way effect the validity of the present appeal. Apart from the  incompetency of the earlier appeal No. 36 of 1981, the subject matter of the said appeal was entirely different from the subject-matter of the present appeal.      It may further be noted that the provisions of the Code of Civil  Procedure contained  in Order 20, rule 11 order 2, rule 2  and Order  23 rule  1 do  not in terms deal with any question  in   relation  to  the  right  of  appeal  or  the extinguishment thereof.  The aforesaid  provisions do not by themselves confer  any right of appeal on a party or deprive any party  of the  right of  appeal which a party may enjoy. These are not the statutory provisions which either confer a right of  appeal on  a party  or deprive a party of any such right. We  have  earlier  considered  the  effect  of  there provisions and  we are  of the opinion that these provisions do not  in the facts and circumstances of this case have the effect of  depriving the defendant-appellant of his right to file the present appeal.      The only  other question that requires to be considered is  whether   the  defendant-appellant   in  the  facts  and circumstances of  this case  has become  disentitled to file the instant  appeal after  the filing  of the earlier appeal and the  withdrawal of  the same. It is beyond question that the right  of appeal  which is,  no  doubt,  a  creature  of statute, may  be lost  to a  party in  a proper  case and an appellant may  be debarred  from exercising the right of the appeal Whether  any party  has lost  his valuable  right  of preferring  an   appeal  conferred   on  him   by  law  must necessarily depend  upon the  facts and  circumstances of  a particular case.      The facts and circumstances which have been relied upon in support of the submission that the defendant-appellant in the instant  case has become disentitled to file the present appeal No. 44 of 1981 are: (1) the defendant-appellant filed an affidavit  asking for  postponement  of  payment  of  the decretal amount  in instalments; (2) the dafendant-appellant filed  an   appeal  only  against  the  direction  regarding instalments before  the filing of the present appeal against the  decree  on  merits;  (3)  the  defendant-appellant  had withdrawn the  earlier appeal  without  obtaining  leave  of Court to  file any fresh appeal; (4) the defendant-appellant had obtained  benefit of the instalment decree passed by the trial Court. We may not that the

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55 ground which weighed with the learned judges of the Division Bench of  the Bombay  High Court was the filing of an appeal against only  the provision  regarding instalments  and  not against the decree on merits.      We shall  now proceed to consider whether the facts and circumstances  of   this  case   justifiably  lead   to  the conclusion   that   the   defendant-appellant   has   become disentitled to file the present appeal.      It is  not in  dispute that the defendant-appellant had filed an affidavit asking for postponement of payment of any money decree  that may be passed and also for payment of the amount in  instalments. The  filing of  an affidavit  on the conclusion of  hearing and  before pronouncement of judgment cannot in  the facts  and circumstances  of  this,  case  be considered to  amount to  such conduct  on the  part of  the defendant-appellant as  to disentitle  him to file an appeal against any  decree that  may ultimately  be passed  against him. In  view of  the provisions contained in Order 20, rule 11  (1)   of  the   Code,  the  prayer  for  instalment  has necessarily to  be made  before  the  pronouncement  of  the judgment and the passing of a decree, as the Court after the passing of  the decree  can grant  instalments only with the consent of  the decree-holder  in terms  of  the  provisions contained in  Order 20,  rule 11  (2) of  the Code. Till the very last  stage of  the hearing  of the suit the defendant- appellant  had   seriously  contested   the  claim   of  the plaintiff-respondent and  had in  fact pressed for a counter claim against  the plaintiff-respondent. Before the delivery of judgment  the defendant-appellant could not possibly have known with any amount of certainty whether an decree against the defendant  appellant would be passed in the suit, and if so, for  what amount.  Under such circumstances it cannot be said that  any party who in view of the provisions contained in Order  20, rule 11 (1) makes a prayer for postponement of payment of  the decretal  amount and asks for payment of the same in  instalments makes  any representation  that he will accept any  decree that  may be  passed against him and will not prefer  any appeal  against the  same. A mere prayer for postponement of  payment  of  the  decretal  amount  or  for payment  thereof   in  instalments   on  the  basis  of  the provisions contained in Order 20, rule 11 (1) of the Code at a time  when the decision in the suit is yet to be announced can never  be considered  to amount  to such  conduct of the party as  to deprive  him of  his right  to prefer an appeal against any  decree, if ultimately passed, and to disentitle him from filing an appeal against the decree. It is no doubt true that 56 after the  judgment had  been pronounced  and the decree had been passed  it was  open so the defendant-appellant to file an  appeal   against  the  decree.  It  may  be  noted  that immediately after  the pronouncement  of  judgment  and  the passing  of   the  decree   three   separate   precipes   or requisitions had  been filed  on behalf  of  the  defendant- appellant to  the Prothonotary  and  Senior  Master  of  the Bombay High Court and there was a specific requisition for a certified copy  of the  decree when  drawn  up,  apart  from requisitions for  a certified  copy of the judgment and also for  certified  copy  of  the  minutes  of  the  order.  The immediate filing  of the  requisition for the certified copy of the decree and also of the judgment clearly manifests the intention of  the defendant-appellant  to prefer  an  appeal against the  decree. It  is common knowledge that in matters of litigation  the  litigant  who  is  not  expected  to  be

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familiar with  the formalities of law and rules of procedure is generally  guided by  the  advice  of  his  lawyers.  The statement of  the lawyers  recorded by the Division Bench in its judgment  clearly goes  to indicate  that the lawyer had advised filing  of  the  earlier  appeal  under  a  mistaken belief. The  act done  by  the  defendant-appellant  on  the mistaken advice  of a  lawyer cannot furnish a proper ground for  depriving   the  defendant-appellant  of  his  valuable statutory right  of preferring an appeal against the decree. We have  already held that the earlier appeal No. 36 of 1981 against the  provision regarding instalments was incompetent and the filing of an incompetent appeal or the withdrawal of the same does not entail any legal consequences, prejudicing the right of the defendant-appellant to file a proper appeal against the  decree. The  question which still remains to be considered is  whether the  act of  filing an appeal against the order  regarding instalments  and not  filing an  appeal against the  decree, when  it was  open  to  the  defendant- appellant to  do so,  can be  regarded  to  constitute  such conduct  on  the  part  of  the  defendant-appellant  as  to disentitle him to maintain the present appeal. The filing of an incompetent  appeal on  the mistaken  advice of  a lawyer cannot, in our opinion, reflect any such conduct on the part of the defendant-appellant. An appeal which is not competent is necessarily  bound to fail, and in such a case the proper course for  an appellant  would  be  to  file  a  valid  and competent appeal.  The filing  of an  incompetent appeal and withdrawal of  the same do not prejudice the right to file a proper appeal  and cannot be held to constitute such conduct on the  part of  an appellant as to deprive him of his right to file a valid appeal. The filing of the earlier appeal No. 36 of 1981 cannot in 57 the facts and circumstances of this case be said to manifest any intention on the part of the defendant-appellant that he would not  prefer an  appeal against the decree and the same does not  amount to  any representation  that the  otherwise accepts the decree. In judging the conduct of the defendant- appellant to  decide  whether  the  defendant-appellant  had abandoned,  relinquished  or  waived  his  right  of  appeal against the decree, all the relevant facts and circumstances which have  a bearing on the question have to be considered. The facts  and circumstances  of this  case  clearly  go  to indicate that  the defendant-appellant had felt aggrieved by the decree  and had  not manifested  any intention to accept the same  and not to prefer an appeal against the decree. As we have  earlier seen,  the defendant-appellant had not only denied and disputed the case of the plaintiff-respondent but had also  made a  counter claim  in  the  suit  against  the plaintiff respondent. The defendant-appellant had throughout contested the suit and the claim of the plaintiff-respondent with all  seriousness. Immediately  on the  pronouncement of judgment  the  defendant-appellant  clearly  manifested  its intention of  preferring an  appeal against  the  decree  by causing the  necessary requisition for the certified copy of the decree  and judgment to be filed. The stakes involved in the suit  of the  defendant appellant were very high and the judgment and  the decree  in the  suit had  gone against the defendant-appellant. In  this background  the filing  of the earlier appeal  on the  mistaken advice of the lawyer cannot in our opinion, legitimately lead to the conclusion that the defendant appellant  had abandoned or relinquished his right to  prefer  the  present  appeal  and  that  the  defendant- appellant had  become disentitled  to  file  the  same.  The further fact  that the  earlier appeal  No. 36  of 1981  was

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withdrawn the very next day after the same had been filed at the stage  of admission  and the  present appeal  came to be filed just a week after the withdrawal of the earlier appeal clearly establishes  that the  defendant-appellant had never intended to  relinquish or  abandon its  right  to  file  an appeal against the decree. The earlier appeal No. 36 of 1981 which was  filed on 20.1.1981 and was withdrawn on 21.1.1981 at the time of admission, could not possibly have caused any prejudice to  the plaintiff-respondent. The promptitude with which the  present appeal  was filed  just after  a week  on 29.1.1981 indicates  that the  defendant appellant had never intended to give up their right of appeal against the decree and they  have acted  with all promptness and earnestness on being properly  advised as  to the  legal position and as to their legal  rights. The filing of the earlier appeal No. 36 of 1981 in the facts and circumstances of this case 58 does not amount to any representation or promise on the part of the  defendant appellant  to accept  the decree on merits and not  to prefer an appeal from the same. There is also no question of  election on the part of the defendant-appellant in preferring  an appeal  against the  order  regarding  the instalment and not against the decree on merits. It is not a case where  a party  is called  upon to  elect  one  of  two alternative remedies,  when by  a election  of  one  of  two alternative remedies he loses his right to pursue the other. In the instant case, the defendant-appellant has a statutory right to  prefer  an  appeal  against  the  decree  and  any question of election on his part does not aries.      The withdrawal  of the  earlier appeal  No. 36  of 1981 without obtaining  the leave  of Court does not in the facts and circumstances  of this  case,  affect  in  any  way  the maintainability of  the present appeal. We have already held that the  earlier appeal  No. 36  of 1981 was an incompetent appeal and  the withdrawal  of the incompetent appeal in the instant case  did not  have prejudice, in any way, the right of the  defendant-appellant to  file a proper appeal against the decree.  The withdrawal  of the  earlier appeal  at  the stage of  admission on  the very next day after the same had been filed and the filing of the present appeal just after a week thereafter,  on the  other hand,  have a bearing on the conduct of  the defendant-appellant and they manifestly make it clear that the defendant-appellant had always intended to file an  appeal against  the decree and it never intended to give up his right of appeal against the decree.      In the  instant case  we are  not  satisfied  that  the defendant-appellant had  obtained any  advantage  under  the decree to  preclude him  from filing  an appeal  against the same. Even  before any  instalment had  fallen due under the decree, the defendant appellant had filed the earlier appeal No. 36 of 1981 against the provisions regarding instalments. It is  to be  noted that  instead of  taking or  getting any advantage  under  the  decree  in  the  matter  of  granting instalments, the defendant-appellant had challenged the same long before  the question of deriving any benefit thereunder had  come.  As  we  have  earlier  noticed,  the  defendant- appellant had withdrawn the earlier appeal the very next day and  had   filed  the   present  appeal  within  eight  days thereafter. In  an appropriate  case any party which derives any advantage  under a decree or order may, depending on the facts and  circumstances of  the case, disentitle himself to challenge the  same and  will be  estopped  from  filing  an appeal against the same, 59 It is  also to  be borne in mind that no execution of decree

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passed in  a suit on the original side is normally permitted unless a  certified copy  of the  decree is on the record in the execution  proceeding. A certified copy of the decree is not available  so long  as the  decree is  not drawn  up and filed. The  present appeal  had been  filed long  before the decree had  been drawn  up and, therefore, there could be no question of  execution of  any decree  at the  time when the present appeal  was filed.  The question  of  the  defendant appellant having obtained an advantage under the decree does not therefore,  really arise.  In the  case of  Bhau Ram  v. Baijnath,(1) this Court observed at p. 362:           "It seems  to us,  however, that in the absence of      some  statutory   provision  or  of  a  well-recognised      principle of  equity, no  one can  be deprived  of  his      legal rights including a statutory right of appeal."      We  have  earlier  held  that  no  statutory  provision deprives the  defendant-appellant of  his right  to file the present appeal.  We have  carefully considered the facts and circumstances of  this case  and the facts of this case also do not  attract any  well-recognised principle  of equity to deprive the  appellant of  his very valuable statutory right of appeal.  The various  passages from Halsbury relied on by Mr. Nariman which we have earlier quoted lend support to the view that  the defendant-appellant  in the  instant case  by reason of  its conduct  or otherwise  is not estopped or has not become disentitled to file the appeal.      In the  result  the  appeal  has  to  be  allowed.  We, therefore, set aside the judgment and decree of the Division Bench of  the Bombay High Court dismissing the appeal of the defendant-appellant on  the ground  of  maintainability.  We remand the  appeal to the High Court for decision on merits. In the  facts and  circumstances of  this case,  we make  no order as to costs. H.S.K.                                       Appeal allowed. 60