Statutory right of appeal remains intact where an earlier incompetent appeal against an instalment order is withdrawn before a competent decree challenge.

The right of appeal is statutory and is lost only by a clear legal bar or conduct that unmistakably shows waiver, abandonment, election or estoppel. An appeal filed before the decree was drawn up, and directed only against an instalment order under Order 20 Rule 11 CPC, was treated as incompetent because the order had not yet merged into a decree. Withdrawal of that incompetent appeal did not prevent a later competent appeal against the decree on merits. A prior request for instalments before judgment, together with prompt steps to obtain certified copies and the short interval between filings, did not amount to acceptance of the decree or bar the later appeal.

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Issues: Whether the withdrawal of an earlier incompetent appeal filed only against the instalment direction barred a later appeal against the decree on merits, and whether the appellant had waived, abandoned or become estopped from exercising the statutory right of appeal.

Analysis: The right of appeal is statutory, but it may be lost only by a clear legal bar or by conduct that unmistakably amounts to waiver, abandonment, election or estoppel. A direction under Order 20, Rule 11 of the Code of Civil Procedure regarding instalments, until incorporated in the decree, retained the character of an order. The earlier appeal, filed before the decree incorporating that direction had come into existence, was treated as an appeal against an order and was therefore incompetent. The filing and withdrawal of such an incompetent appeal did not prejudice the right to file a competent appeal against the decree. Order 2, Rule 2 and Order 23, Rule 1 of the Code of Civil Procedure did not control the maintainability of the later appeal in these facts, and the appellant's request for instalments, made before judgment when the result of the suit was still unknown, did not amount to a representation that the decree would be accepted without challenge. The prompt steps taken to obtain certified copies and the short interval between withdrawal of the earlier appeal and filing of the later one negatived any inference of abandonment or estoppel.

Conclusion: The later appeal was maintainable, and the appellant was not barred from challenging the decree on merits.

Ratio Decidendi: An incompetent appeal against a non-final instalment direction, filed before the decree incorporating that direction is drawn up, does not amount to waiver, abandonment or estoppel and does not bar a subsequent competent appeal against the decree.

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