IMPORTANT POINT
The court clarified that appeals can be filed against judgments under amended Rule 1 of Order XLI, emphasizing that headings do not control the clear language of statutory provisions.

ORDER :

Sri Bankatlal Mandhani, learned counsel for the petitioners. Sri K.K.Waghray, learned counsel for the respondents.

2. Heard on the question of preliminary objection of maintainability/entertainability.

3. This Civil Revision Petition filed under Article 227 of the Constitution of India is directed against the order dated 11.03.2024 in I.A.No.393 of 2022 in O.S.No.479 of 2018.

4. The preliminary objection raised by the learned counsel for the respondents is that the impugned order dated 11.03.2024 is appealable under Order XLI Rule 1 r/w Section 96 of C.P.C. Learned counsel appearing for the petitioners submits that a plain reading of Order 12 Rule 6 makes it clear that the trial Court was under a statutory obligation to pass a preliminary decree. The impugned order shows that the trial Court has failed to draw any such preliminary decree. Further, after passing the impugned order, the trial Court has framed issues. In view of the heading above Order XLI i.e., “Appeals from original decrees”, it is urged that the appeal can lie only when a decree is drawn. Since, admittedly, no decree has been drawn, the petitioner cannot be relegated to avail the remedy of appeal.

5. Apart from this, by placing reliance on the judgment of the Supreme Court in Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority, 2023 SCC Online SC 95, it is submitted that when order is patently illegal and question involved is a pure question of law, despite availability of alternative remedy, this petition can be entertained.

6. Sounding a contra note, learned counsel for the other side submits that Rule 1 of Order XLI has undergone amendment by Act 46 of 99 w.e.f. 01.07.2002. The last portion of Rule 1 of Order XLI is substituted by the word ‘judgment’ in place of “Decree appealed from and of the judgment on which it is founded”. Thus, the petitioners have a remedy to prefer an appeal. The present petition is not maintainable. In support of his submission, he placed reliance on the judgment of this Court in B.Kesav Rao v. P.Sivannarayana, 2014 (1) ALD 306.

7. Parties confined their argument on the question of maintainability/entertainability to the extent indicated above.

8. I have heard the parties.

9. Before dealing with rival contentions advanced at the bar, it is apposite to reproduce the heading above Rule 1 of Order XLI of C.P.C. The relevant portion of Rule 1 of Order XLI reads as under:-

Order XLI

APPEALS FROM ORIGINAL DECREES

“1. Form of appeal – What to accompany memorandum:- (1) Every appeal shall 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 this behalf. The memorandum shall be accompanied by a copy of the judgment.” (Emphasis Supplied)

10. The parties are at loggerheads on the question of maintainability of this petition filed under Article 227 of the Constitution of India. As noticed above, the learned Senior Counsel for the petitioners placed heavy reliance on heading above Order XLI i.e., “Appeals from original decrees”. Much emphasis is laid on the word “Decrees”. On the contrary, learned counsel for the other side placed reliance on the amendment in Rule 1 of Order XLI, whereby, the last sentence “Decree appealed from and of the judgment on which it is founded”, is substituted by the word “judgment”. Thus, interesting question is whether, the heading of Order XLI will determine the nature of the document (decree or judgment) to be accompanied with appeal or the substantive provision namely Rule 1 of Order XLI. This point relating to interpretation is no more res integra.

11. The Apex Court in Frick India Ltd. v. Union of India, (1990) 1 SCC 400 held as under:-

“8. It is well settled that the headings prefixed to sections or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can t