1. This First Miscellaneous Appeal is at the instance of the unsuccessful applicants under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure filed in a regular Title Appeal and is directed against Order No. 43 dated February 15, 2007 passed by the learned Civil Judge (Senior Division), Arambagh, in Title Appeal No. 39 of 1999 thereby rejecting the said application under Order XXXIX, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure.
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 Nawab Usman Ali Khan v. Sagarmal , 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 Kelp 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 Order XLIII, Rule 1(r) of the same. In our opinion, an appeal may be treated as a continuation of the “lis” between the parties but should never be treated as the continuation of the suit within the scheme of the Code. According to the design provided in the Code, a suit commences with the presentation of a plaint and culminates either in a decree or in rejection of the plaint; however, if the trial Court returns a plaint for want of jurisdiction, the suit will come to an end, the moment the plaint is so returned and the suit will revive from the date of representation before the Court having jurisdiction and all interim orders passed earlier will have no further effect. If the intention of the legislature were to treat the appeal as the continuation of the suit, it would not separately specify the power of the appellate Court in Section 107 or a different procedure for appeal in Order XLI of the Code.
12. We, therefore, find that this First Miscellaneous Appeal is not maintainable as the order impugned does not come within the purview of Order XLIII, Rule 1(r) of the Code because the same is attracted only when an order under Order XXXIX, Rule 1, 2, 2A, 4 or 10 is passed in a suit, and, accordingly, we dismiss this appeal on that ground alone.
13. We make it clear that dismissal of this appeal will not stand in the way of the appellants in seeking appropriate remedy before the appropriate forum in accordance with law.
14. Let certified copy of the order impugned be returned to the learned Advocate for the appellants.
15. Let xerox-certified copy of this order be given to the parties within one week from the date of making of such application.
Order accordingly.
Comments