Defendant's Appeal Upheld Despite Earlier Withdrawn Appeal

The Supreme Court found the defendant's appeal against a money decree payable in installments to be maintainable, despite an earlier withdrawn appeal. The Court held that the earlier appeal's incompetence did not affect the right to challenge the decree on merits. The application of certain Civil Procedure Code rules was deemed inapplicable to the appeal, and the defendant's conduct did not disentitle them from filing the present appeal. Consequently, the Court allowed the appeal, set aside the judgment and decree, and remanded the case to the High Court for a decision on merits, with no order as to costs.

---

---

Issues Involved:
1. Maintainability of the appeal filed by the defendant against a money decree payable in installments.
2. Whether the earlier appeal filed against the provision of installments affects the right to challenge the decree on merits.
3. Application of Order 2, Rule 2, and Order 23, Rule 1 of the Civil Procedure Code (CPC) to the appeal.
4. Whether the defendant-appellant's conduct disentitles them from filing the present appeal.

Summary:

Issue 1: Maintainability of the Appeal
The Supreme Court considered whether the appeal filed by the defendant against a money decree payable in installments was maintainable. The defendant had earlier filed an appeal against the installment provision and subsequently withdrew it. The Court noted that the right to appeal is a statutory right and cannot be taken away unless explicitly provided by law. The appeal was filed within the period of limitation, and the earlier appeal was found to be incompetent as it was filed against an order, not a decree, and lacked the requisite court fee and certified copy of the decree.

Issue 2: Effect of Earlier Appeal on Right to Challenge the Decree
The Court examined whether the earlier appeal against the installment provision precluded the defendant from challenging the decree on merits. It was held that the earlier appeal, being incompetent and non-est in the eye of law, did not affect the right to file a subsequent appeal against the decree. The Court emphasized that the filing of an incompetent appeal and its withdrawal do not prejudice the right to file a proper appeal.

Issue 3: Application of Order 2, Rule 2, and Order 23, Rule 1 CPC
The Court analyzed the applicability of Order 2, Rule 2, and Order 23, Rule 1 of the CPC. It was concluded that these provisions did not apply to appeals in the same manner as they apply to suits. Even if the principles underlying these rules were considered, the cause of action for the present appeal was different from the earlier appeal, and thus, the maintainability of the present appeal was not affected.

Issue 4: Defendant-Appellant's Conduct and Right to Appeal
The Court considered whether the defendant-appellant's conduct, including filing an affidavit for installments and withdrawing the earlier appeal, disentitled them from filing the present appeal. It was held that the defendant's conduct did not amount to a waiver or abandonment of the right to appeal. The immediate filing of requisitions for certified copies of the decree and judgment indicated the intention to appeal. The Court also noted that the mistaken advice of a lawyer cannot deprive a party of their statutory right to appeal.

Conclusion
The Supreme Court allowed the appeal, set aside the judgment and decree of the Division Bench of the Bombay High Court, and remanded the appeal to the High Court for a decision on merits. No order as to costs was made.

---