Judgment

AMARENDRA NATH SEN, J. :- The maintainability of an appeal filed by the defendant in the suit against a money-decree payable in instalments after the defendant had filed an appeal only against the party concerning the direction with regard to the instalments and had withdrawan the same, is the question for consideration in this appeal by certificate granted by the High Court under Article 133(l) of the Constitution.

2. The facts material for the purpose of the decision involved in this appeal are brief and may be stated.

3. The State Trading Corporation, the respondent in this appeal, as plaintiff, filed a suit against the appeallant who was the defendant in the suit on the Original Side of the Bombay High Court for the enforcement of the plaintiffs claim for a large amount which inclusive of interest worked out to over Rupees 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 instalments in the 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 instalments to be paid up on or before 7th March, 1981 and subsequent instalments 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. "

4. Delivery of the judgment commenced on the 12th December, 1980 and was concluded on the 16th Dec., 1980. On the day of the conclusion of the judgment i.e. 16th Dec., 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 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 Jan., 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 competition in duplicate. We also 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