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BHASKAR BHATTACHARYA AND RUDRENDRA NATH BANERJEE, JJ.
Mira Chatterjee and Ors.
versus
Joydeb Chatterjee.
F. M. A. T. No. 645 of 2007
Decided on : 6 -6 -2007.
CIVIL PROCEDURE CODE - ORDER XXXIX, RULES 1 AND 2 - APPLICABILITY - APPEAL - MAINTAINABILITY: Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure (CPC) are applicable to suits only. An appeal against an order passed on an application under Order XXXIX, Rules 1 and 2 of the CPC filed before the appellate Court is not maintainable under Order XLIII, Rule 1(r) of the CPC.
Fact of the Case:
The appellants filed a First Miscellaneous Appeal against an order passed by the Civil Judge (Senior Division), Arambagh, rejecting their application under Order XXXIX, Rules 1 and 2 read with Section 151 of the CPC.
Finding of the Court:
The court held that the First Miscellaneous Appeal was not maintainable as the order impugned did not come within the purview of Order XLIII, Rule 1(r) of the CPC because the same is attracted only when an order under Order XXXIX, Rule 1, 2, 2A, 4 or 10 is passed in a suit.
Issues: Whether an appeal lies against an order passed on an application under Order XXXIX, Rules 1 and 2 of the CPC filed before the appellate Court.
Ratio Decidendi: The court held that the provisions contained in Order XXXIX, Rules 1 and 2 of the CPC can be made applicable to an appeal preferred against a decree passed by the trial Court by taking aid of Section 141 of the CPC, but the substantive right of appeal created under Section 104 of the CPC is not available to an aggrieved person by taking help of Section 141 of the Code.
Final Decision: The court dismissed the appeal on the ground that it was not maintainable.
Based on the provided legal document, the key points are as follows:
An appeal against an order passed on an application under Order XXXIX, Rules 1 and 2 of the Civil Procedure Code (CPC) before an appellate court is not maintainable under Order XLIII, Rule 1(r) of the CPC (!) (!) .
Order XXXIX, Rules 1 and 2 of the CPC are applicable only to suits, and not to proceedings or orders in appeals or other proceedings (!) (!) .
While procedural provisions of the CPC can be made applicable to appeals through the aid of Section 141 of the CPC, substantive rights of appeal created under Section 104 are not available by applying Section 141 to such proceedings (!) (!) .
The order impugned in the case did not fall within the scope of Order XLIII, Rule 1(r) because it was an order on an application under Order XXXIX, Rules 1 and 2, which are applicable only in suits, not in appeals (!) (!) .
The court emphasized that an appeal is not a continuation of the suit but a separate proceeding, and the specific procedural provisions for appeals must be followed independently (!) .
Consequently, the court dismissed the appeal on the ground of non-maintainability, clarifying that this dismissal does not prevent the appellants from seeking appropriate remedies through other legal avenues (!) .
The court directed that certified copies of the order be provided to the parties and their advocates, and that the appeal be dismissed accordingly (!) (!) .
In summary, the core principle is that an appeal against an order under Order XXXIX, Rules 1 and 2, in an appellate setting is not maintainable under Order XLIII, Rule 1(r) of the CPC, reaffirming the procedural distinction between suits and appeals.
2. In our view, the present First Miscellaneous Appeal is not maintainable. According to Order XLIII, Rule 1(r) of the Code of Civil Procedure, a First Miscellaneous Appeal lies against an order under Order XXXIX, Rules 1,2, 2A, 4 and 10 of the Code of Civil Procedure. The opening sentence of Order XXXIX, Rule 1 of the Code of Civil Procedure starts with the phrase "where in any suit it is proved by affidavit or otherwise......". Therefore, Order XXXIX, Rules 1 and 2 of the Code is applicable only to the suits. However, by virtue of the provisions contained in Section 141 of the Code, the procedure provided in the Code of Civil Procedure in regard to the suits should be followed as far it can be made applicable in all proceedings of any Court of civil jurisdiction.
3. It may not be out of place to mention here that the corresponding Section 646 of the Code of 1882 read as follows :-
"The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction other than suits and appeals".
4. However, in the Code of 1908, the Section 141 has been reframed as follows by deleting the words "other than suits and appeals" and incorporating the phrase "in all proceedings" :-
"The procedure provided in this Code in regards to suits shall be followed, as far it can be made applicable, in all proceedings in any Court of civil jurisdiction".
5. Subsequently, by way of amendment in the year 1976, an explanation has been added.
6. The Supreme Court in the case of Ram Chandra v. State of U. P., reported in AIR 1966 SC 1888 at page 1891 observed that the word "proceeding" appearing in Section 141 of the Code is not necessarily confined to the original proceedings like suit, application for appointment of guardian, etc.
7. Therefore, after the deletion of the word "appeals" and the aforesaid observation of the Apex Court, there cannot be any doubt that by taking aid of Section 141 of the Code, the provisions contained in Order XXXIX, Rules 1 and 2 which primarily relate only to suits can be made applicable to an appeal preferred against a decree passed by the trial Court.
8. Now the question arises whether an appeal will lie against any order passed on such an application under Order XXXIX, Rules 1 and 2 of the Code filed before the appellate Court.
9. It is now settled law that by taking support of Section 141 of the Code, only the procedural parts of the Code of Civil Procedure can be made applicable, but substantive provisions which confer substantive right upon a party cannot be resorted to with the help of Section 141 of the Code (See Navab Usmanali Khan v. Sagar Mal, reported in AIR 1965 SC 1798 at page 1801 (paragraph 7).)
10. Therefore, although the provisions contained in Order XXXIX, Rules 1 and 2 of the Code will be applicable before an appellate Court dealing with a regular appeal against a decree, if such application is disposed of, the substantive right of appeal created under Section 104 of the Code is not available to an aggrieved person by taking help of Section 141 of the Code (See in this connection, the observations of a Special Bench of this Court in Mst. Nurnahar Bewa v. Rabindra Nath Deb, reported in 1988 (1) CHN 461 : (AIR 1988 Cal 358).
11. We are also not impressed by the submission of the learned counsel for the appellant that an appeal being really the continuation of a suit, an order passed on an application under Order XXXIX, Rules 1 and 2 of the Code in an appeal would come within the purview of
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