P. SOMARAJAN, J.

1. Aggrieved by the decree and judgment in O.S.No.356/2002 of the Addl.Sub Court, Kozhikode, the appeal in A.S.No.282/2003 was filed before the District Court, Kozhikode by the appellants, who are not party to the original suit, along with an application in I.A.No.2145/2003 for permitting them to prefer the said appeal as 'aggrieved persons'. The First Appellate Court dismissed the said application and consequently the first appeal was also dismissed which is under challenge in this second appeal filed by appellants 1 to 3, 5 and 6 in the First Appellate Court.

2. The original suit was filed for partition and a preliminary decree was passed. The appellants were not made as party to the suit though the plaint schedule item No.4 property is exclusively belonging to them. Interalia, it was contended that they are in possession and enjoyment of the property and that the property is not available for partition. They claimed that their father, Sukumara Menoky and his brother, Padmanabha Menoky acquired leasehold right over the plaint schedule item No.4 property on 18/05/1997. Subsequently, they partitioned the property in the year 1997 and the plaint schedule item no.4 was allotted to Sukumara Menoky. He had purchased the Jenm right over the property from the Land Tribunal, and hence, the property is not available and not liable for partition. On the other hand, the respondents/plaintiffs and defendants contested the application asserting that the property was belonging to their predecessor and is liable to be partitioned and the appellants/3rd parties have no locus standi to prefer the appeal.

3. The learned District Judge dismissed the application as well as the appeal holding that their remedy lies somewhere else and that they can obstruct execution of the decree or to file a separate suit for agitating their grievance and that they are not 'aggrieved persons' to prefer an appeal against the preliminary decree and judgment granting partition.

4. The main controversy centers around the question whether an appeal is maintainable in the hands of a person who is not a party to the decree suit and whether the right of appeal inheres on any other person other than a party to suit/decree.

5. A right of suit is always available to an aggrieved person in a civil dispute unless the same is barred by any statute, but a right of appeal sprouts and germinates from an adjudication of right of parties either by a decree conclusively determining the rights of parties with regard to all or any of the matters in controversy in a suit or proceeding and also from an order of determination of any question either interim or final or rejection to take up any civil dispute for determination on any procedural violation or non compliance of a requirement and essentially resting on the dispute between the parties to the lis and the persons litigating under them and none else.

6. In Smt.Ganga Bai v. Vijay Kumar and others AIR 1974 SC 1126, Apex Court had considered the basic distinction between a right of appeal and right of suit in the following lines:

“there is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.”

7. In Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd., (1970) 3 SCC 573, Apex Court had considered the right of appeal in a company matter and held as follows:

“It would