The High Court held that a second appeal is not maintainable against an adverse finding because Section 100 CPC permits appeals only against a decree. The appeal was dismissed as a decree was in the appellant's favor.
Second appeal dismissed as not maintainable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.253 OF 2007
Shri. Mallappa Shivling Nandani...Appellant.
Vs.
Yashwant Sahakari Bank Ltd. Miraj...Respondent.
Yashwant Sahakari Bank Ltd. Miraj.
Mr.S.D.Patil for the Appellant.
CORAM : A.M.KHANWILKAR,J.
DATED : July 12, 2007.
P.C.
1. This second appeal has been filed by the decree
holder challenging the adverse finding recorded by the
Appellate Court. The counsel for the appellant was
called upon to make good his stand that second appeal
against an adverse finding is maintainable. The learned
counsel has relied upon the decision of the Apex Court
in case of Deva Ram and another Vs. Ishwar Chand and
another reported in (1995) 6 Supreme Court Cases Page
733, in particular, Paragraph 31 of the said decision.
This decision is not an authority on the issue that
second appeal against the adverse finding is
maintainable. Section-100 of the Code of Civil
Procedure permits filing of Second Appeal against the
"Decree". There is no decree passed against the
appellant. In fact, the decree is in favour of the
appellant. Suffice to observe that the adverse finding
given by the Appellate Court cannot be made basis to
file second appeal, not being a decree. Hence, this
second appeal is dismissed as not maintainable.
(A.M.KHANWILKAR, J.)
1 issue framed by the court
Whether a second appeal is maintainable against an adverse finding recorded by the Appellate Court where no decree is passed against the appellant.
Colour shows how this judgement treated each authority
Deva Ram and another Vs. Ishwar Chand and anotherDistinguished¶1
(1995) 6 Supreme Court Cases Page 733
1 provisions across 1 enactments
Shri. Mallappa Shivling Nandani
Yashwant Sahakari Bank Ltd. Miraj
A.M. Khanwilkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court