JUDGMENT
1. An objection has been raised by the Registry to the maintainablity of these appeals under the Letters Patent as the orders were passed by the learned Single Judge in Civil Miscellaneous Appeal filed under Order 43 Rule 1 of Civil Procedure Code. The note of the Registry states that the L.P.As. of the present nature are barred under the provisions of Section 104 (2) of the Civil Procedure Code. Mr. S.A. Chari, learned Counsel for the appellants raises the question that the appeals were never preferred under Order 43 Rule 1 C.P.C., but were filed Under Section 96 of C.P.C. read with Section 11 of the Andhra Pradesh (Telangana Area) Societies Registration Act, 1350 Fasli (hereinafter shortly referred as “the Act’). Inasmuch as the decision of the learned Principal District Judge was a decree as defined Under Section 2 (2) of the C.P.C., it is appealable as provided Under Section 96 of C.P.C.
2. There is no dispute about the fact that the first respondent is a Society registered under the Act. The second respondent is its Chairman and official representative. The dispute between the parties related to its management for redressal of which the application was filed by the appellants before the Principal District Judge, Rangareddy District, which is the designated Court for the purpose. The application was dismissed on merits. As the application had been filed Under Section 11 of the Act, it is submission of Mr. Chari that the decision of the District Judge finally adjudicated the rights of the parties as were claimed in the application and hence the decision is in the nature of a decree from which the appeal shall lie to this Court as any other appeal from the decrees passed by the District Judge.
3. Section 11 of the Act reads as follows:
“Dispute regarding management:- In the event of any dispute arising among the Managing Committee or the members of the Society, in respect of any management or dissolution of the society, any member of the society may file an application in the District Court concerned, and the said Court shall, after necessary inquiry, pass such order as it shall deem fit.
Explanation:- “District Court” shall mean, in the City of Hyderabad, First Judge of the City Civil Court.”
4. Admittedly, in the Act there is no provision providing for appeal from the decision Under Section 11 of the Act nor is there any provision showing that the application Under Section 11 is to be treated as a suit or that the decision of the District Judge shall be deemed to be, a decree. The provision is clear that in the matter of dispute regarding the management, a Member of the Society can file an application before the District Court and the Court after necessary enquiry pass such order as it shall deem fit. The District Court is explained as the first Judge of the City Civil Court. It is worthwhile to note that the proceeding before the District Court is treated to be commenced by filing an application. There is no provision that the application shall be registered as a plaint or that there shall be trial ensued upon the plaint. There is no provision that the provisions of C.P.C. should apply for disposal of the application. The function of the District Court is to “enquire into the application and pass an order as is deemed fit”. It may be a fact that by disposing of the application, the rights of the parties are concluded. But then it is clear that the application is neither a suit nor a decree is passed in respect of the contentions advanced by the parties. Mr. Chari, learned Counsel submits that his application before the District Court was in the nature of a plaint and that the appeal before the learned Single Judge had been preferred under Section 96 of C.P.C. read with Section 11 of the Act. Hence the application was to be treated as a suit and the appeal was to have been held to be maintainable as the decision in a suit can only culminate in a decree. The submission is misconceived since by mere styling of an application as a plaint, a jurisdiction which is otherwise non-existent cannot be conferred upon a Court either at the trial stage or at the appellate stage. The consent of the parties cannot confer jurisdiction on a Court and similarly mere clever drafting of the plaint or the nomenclature adopted for the application would not vest the Court to treat the application as a suit.
5. Mr. Chari, learned Counsel for the appellants does not dispute the position that no appeal lies as against a decision Under Section 11 of the Act or under Order 43, Rule 1 of C.P.C. and that is why he elevates his case to defend the proposition that the decision is a decree. Because of the submission raised, it is necessary to examine as to the distinction between an order and a decree and as to when an order or a decision can be called to be a decree and an appeal to be maintainable there from. This question was examined in detail by a Division Bench of this Court in Varalakshmi v. Veerareddi . The Decree is defined in Section 2 (2) of C.P.C. as follows:
” ‘Decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include:-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default”.
6. The ingredients necessary to treat an adjudication by the Court as a decree, hence are; (1) There is a suit between the parties: (2) an adjudication there in which conclusively determines the rights of the parties with regard to all or any of the matters of controversy; (3) and there is a formal expression of the adjudication which shall be called a decree. The Division Bench pointed out that the pre-requisite of a decree is that the proceeding which results in an adjudication should start in a suit. It was also pointed out that ‘suit’ is not defined in the Civil Procedure Code, yet, Section 26 of the C.P.C. states that the suits shall be instituted by presentation of a plaint or in such other manner as may be prescribed, Thus, the essential condition for a decision to be treated as a decree is that it must emanate from a suit. Referring to the provisions of Section 20 (2) of the Arbitration Act, it was pointed out that though the proceedings are started before the Civil Court by way of an application, yet the very section itself provides that the application shall be numbered and registered as a suit. The Court referred to the analogy of Section 295 of Indian Succession Act which provides that the proceedings thereunder shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Civil Procedure Code, 1908. Section 26 (2) of the Land Acquisition Act was referred, which provides that every award shall be deemed to be a decree and the statement of the grounds of every award a judgment within the meaning of Section 2 Clause (2) and Section 2 Clause (9) respectively of the Code of Civil Procedure, 1908. Section 54 of that Act provides for appeal and reads as under:
“Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act, to the High Court from the award, or from any part of the award, of the Court, and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof.”
7. The case before the Court in that Division Bench was as to whether the appeals Under Sections 9,10,11 and 13 of the Hindu Marriage Act, 1955 were to be numbered as regular appeals from decrees Under Section 96 of the Civil Procedure Code or were to be numbered as Civil Miscellaneous Appeals. The Court held that the decisions under, those sections of the Hindu Marriage Act were not decrees for which appeal did not lie under Section 96 of C.P.C. and that they were not to be registered as Appeal Suits, but were to be registered as Civil Miscellaneous Appeals. The Court observed as under:
“This shows that though some proceedings might be started in applications, they could still be regarded as suits for purposes of those enactments, provided it is specially provided for therein. In the absence of such provision, any proceeding except the one started by presentation of a plaint and an adjudication given therein will not be a decree for purposes of Section 96.”
8. We have dealt with the Division Bench decision cited at (1) supra at length because we consider it to have made a clear exposition of the principles of law which are applicable with all force to the present case. Mr. Chari however has placed reliance on the decisions in Deep Chand v. Land Acquisition Officer ; Pushpa Kumari v. Dewan Chand Trust, ; Rama Rao v. Board of Commrs., H.R.E. ; N. Rama Murthy, In Re. 1963 (1) An.W.R. 42 . The learned counsel for the respondents has placed reliance on decisions in Rajagopala v. Hindu Rel. End. Board (F.B.) AIR 1934 Madras 103 (2) ; Ganga Bai v. Vijay Kumar ; V. Babu Rao and Ors. v. V.V. Sastry 1987 (1) ALT 445.
9. So far as the decision in N. Ramamurthy, In Re cited at (supra), it was a case arising under the present Act and was considering the identical question as to whether appeal lies to this Court against the decision of the District Court Under Section 11 of the Act. The question that was considered by the learned Single Judge in that case was whether the District Court was functioning, in deciding an application Under Section 11 of the Act, as persona designata or as a Court. After analysing the provisions and referring to the authorities, the learned Judge reached the conclusion that the intendment of the legislature was to refer the application for adjudication to a Court selecting the Court of first District Court as the appropriate Court for adjudication and not that the Presiding Officer of that Court was to decide the matter as a persona designata. Holding as such, the Court held that an appeal would lie against the order of a Court. The learned Judge did not consider in that case as to what type of appeal would lie under the provisions of law i.e. an appeal under Order 43 Rule 1 or an appeal Under Section 96 of C.P.C. This decision does not help the appellants as it had not considered the decision of the Division Bench referred at (supra). The decision in Rama Rao v. Board of Commrs. H.R.E. referred at (supra) is also of no help to the appellants. The question that was considered by the Lordships in that case was whether a proceeding Under Section 57 of the Madras Hindu Religious Endowments Act, 1926 in which the Scheme settled Under Section 57 (7) is modified, can be called a suit and the decision in it as a decree, so as to maintain an appeal to the Court. The Court pointed out that Under Section 57 (7), the trustee or any person having interest was entitled to institute a suit to modify or set aside an order passed by the Board Under Section 57 (5). Analysing the provisions, the Apex Court held that it was clear that in respect of decrees passed in suits filed Under Section 57 (7), there would automatically be right of appeal under the Code. That being so, the Scheme which is framed Under Section 92 of C.P.C. is deemed to be a Scheme Under Section 75 of Madras Hindu Religious Endowments Act, 1926 and it is one which has been framed in the suit and the scheme itself is a part of the decree in the scheme-suit. It is for the modification or cancellation of such a scheme or rather of the scheme which is part of the decree that Section 57 (9) makes provision by the machinery of an application. If, after hearing the application Under Section 57 (9), the scheme itself is cancelled and Section 57 (9) provides for such a contingency and contemplates such an order, the previous decree will cease to exist. In such an event it would scarcely be open to argument that the vacating of the decree passed Under Section 92 of the Civil Procedure Code would not itself amount to a decree within the meaning of Section 2 (2) of the C.P.C. It does not make any difference in that instead of the decree being vacated by cancellation, it is modified. Analysing further, the Court stated that the Scheme-decree itself might have contained a provision granting liberty to a party to the decree to move the Court by an “application” for the modification of the Scheme in stated contingencies. If in pursuance of such liberty reserved an application were made to amend the scheme decree, the resultant order though passed on an “application” would certainly be an amended decree against which an appeal would lie Under Section 96 of the Civil Procedure Code. This decision is rather contrary to the submissions made by Mr. Chari and supports the view earlier taken by us.
10. Reliance is placed in the decision in Deep Chand v. Land Acquisition Officer cited at (supra), wherein the Court was considering whether a decision by the Civil Court on a reference Under Section 49 (1) of Land Acquisition Act is not a decree within the meaning of Section 2 (2) of the Civil Procedure Code.
11. In Ganga Bai v. Vijay Kumar, cited at (7) above, it is pointed out that there is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute, one may, at one’s peril, bring a suit of one’s choice. 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.
12. The decision in Deep Chand v. Land Acquisition Officer, referred at (supra) has not referred to the decision in Ganga Bai v. Vijay Kumar, cited at (supra), because, as has been observed by the learned Single Judge, the decision had not been brought to the notice of their Lordships. At at any rate, it has to be held that the observations made in the later decision were of a general nature.
13. Order 43 Rule 1 of C.P.C. itself specifies the nature of the orders which are appealable. An appeal to be maintainable under Order 43 Rule 1 of C.P.C. must be from the orders which are contemplated under that provision, as has been considered in Varalakshmi v. Veerareddi, cited at (supra). All orders passed by the Court are not ipso facto appealable, under the provisions of Order 43 Rule 1 of C.P.C., but may be under the provisions of a special statute itself.
14. In Rajagopala v. Hindu Rel. End Board cited at (supra), the Full Bench held that an order passed by the District Judge Under Section 84 (2) on application to set aside decision of Board Under Section 84 (1), is not appealable to the High Court because although that order complied with all the other requirements of the definition of a “decree”, it cannot be a decree inasmuch as an application cannot be the commencement of a suit and without a suit there cannot be a decree.
15. In P. Babu Rao and Ors. v. V.V. Sastry cited at (supra), it was held that appeal against an order of the trial Court Under Section 11 of the Act is not maintainable and only revision lies Under Section 115 of C.P.C. However, the question as is raised in the present case did not arise in that case nor was there any analysis made in that light.
16. The decision in Pushpa Kumar v. Dewan Chand Trust (supra) is not necessary to be referred in view the judgments of this Court referred earlier.
17. In the result, we hold that the learned Single Judge has rightly held that the appeals are not maintainable. Consequently, the present appeals are also not maintainable and are dismissed with costs.
18. An oral application is made by Mr. Chari for leave to appeal to the Supreme Court. Considering the arguments, we do not consider that there is any substantial question of law involving interpretation of the Constitution or that there is any question of law of general importance, which is fit to be decided by Supreme Court of India. The oral request is rejected.
