No Appeal Lies U/S 96 & 100 CPC Against A Mere Finding/Observation When The Decree Has Not Gone Against Appellant: Orissa High Court

The Orissa High Court has held that a party cannot file an appeal against a mere finding / observation of the Trial Court, when the decree has not in any way gone against such a party.Justice Debabrata Dash observed,"No Appeal lies against a mere finding. Section-96 and 100 of the Code provide for an Appeal against decree and not against judgment. No Appeal lies against a finding / observation when the decree has not gone in any way against that person coming to file the Appeal." The Court was hearing a second appeal filed against the judgment passed by an Additional District Judge whereby, the appeal filed by the respondent under Section 96 was allowed, remanding the matter back to the trial Court for carrying out certain directions given thereunder. Background: A suit was filed by the President of the Ganjam District Cricket Association (GDCA) on behalf of the association, praying to restrain the Defendants (Appellant herein) from interfering in the affairs of the Plaintiff-Association.The Trial Court in answering to the maintainability of the suit and cause of action for filing the same concluded that the Plaintiff has miserably failed to establish his case and he has no cause of action for filing the suit. Accordingly, the suit was dismissed denying the reliefs sought by him. Though the decision of the Trial Court was not challenged by the Plaintiff, but the Defendant No. 2 (the present Respondent, who was a member of the GDCA) filed an appeal under Section 96, before the lower Appellate Court against an observation made in the judgment. The Court then admitted the appeal and remanded back the matter to Trial Court for carrying out certain directions. Issues for Consideration: The following issues arose for consideration before the Court: 1. Whether the Lower Appellate Court has fallen in error of law in entertaining the First Appeal under section 96 of the Code of Civil Procedure filed by the Respondent in questioning the finding/observation of the Trial Court in its judgment when he has not been affected by the result in the suit standing dismissed? and 2. Whether the Lower Appellate Court has failed to appreciate the judgments cited on the question of maintainability of the Appeal in their proper perspective and as such the impugned judgment is vitiated? Contentions: It was argued on behalf of the Appellant that the lower Appellate Court should have simply dismissed the appeal as not maintainable as the Trial Court had dismissed the suit filed by the original plaintiff and declined to grant any relief prayed by him. Therefore, the decision of the Trial Court has in no way gone against the Respondent. The decision of the Apex Court in Banarasi & Others v. Ram Phal, (2003) 9 SCC 606, was relied upon to submit that lower Appellate Court has not carefully gone through the provision of law in this regard. The counsel for the Respondent, on the other hand, argued in favour of the judgment of the lower Appellate Court. He submitted that the learned lower Appellate Court found it proper to make an interim arrangement till the new election of the office bearers of the Association is held. Hence, it did not commit any error in remanding the matter to the Trial Court for passing an order in that regard. Judgment: The High Court at the outset observed that the lower Appellate Court has not found any fault with the findings or conclusions of the Trial Court and the ultimate decision of dismissing the suit was also not held to unsustainable. After carefully going through the decision of the Supreme Court in Banarasi (supra), the Court noted: "…it is seen that the legal position on the point has been set at rest that sections- 96 ad 100 of the Code make provision for an Appeal being preferred from every original decree or from every decree passed in Appeal respectively. None of the provisions enumerates the person who can file an Appeal." Thereafter, the Court relied upon a previous judgment of the Orissa High Court in Golok Bihari Mohanty v. Umesh Chandra Mohanty & Anr., 2018 (II) CLR 766, to iterate that no appeal lies against a finding. It observed: "It is settled by the long catena of decisions that to be entitled to file an Appeal, the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree, he is not entitled to file an Appeal. No Appeal lies against a mere finding. Section-96 and 100 of the Code provide for an Appeal against decree and not against judgment. No Appeal lies against a finding / observation when the decree has not gone in any way against that person coming to file the Appeal." Resultantly, the Court allowed the appeal setting aside the judgment of the lower Appellate Court. Case Title: Ramani Ranjan Mohanty v. W.V. Raja Case No.: SAO No. 4 of 2021 Date of Judgment: 25 January 2022 Coram: Justice...

No Appeal Lies U/S 96 & 100 CPC Against A Mere Finding/Observation When The Decree Has Not Gone Against Appellant: Orissa High Court

Jyoti Prakash Dutta

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