SARVESHWARI DEVI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) A very peculiar situation which has arisen for consideration before this Court in the instant Second Appeal is that, the plaintiff/appellant has challenged the judgement impugned, which has been rendered by the Civil Judge, Senior Division, Pauri Garhwal, which is titled as Miscellaneous Civil Appeal No. 20 of 2005, Ram Krishna Badoni (since deceased) v. State of Uttarakhand which will fall to be an appeal under Sec. 104 of Code of Civil Procedure. In the said Miscellaneous Civil Appeal, the judgement which was put to challenge by the appellant was a judgement and order dtd. 24/3/2005, which was rendered by the Court of Civil Judge, Junior Division, Srinagar Garhwal in Civil Suit No. 04 of 1998, Ram Krishna Badoni v. State of Uttar Pradesh.

(2.) It is no one's case in the appeal that the judgement, which was put to challenge in the Appeal i.e. dtd. 24/3/2005, was a regular adjudication of rights by invocation of the provisions contained under Sec. 9 of the Code of Civil Procedure. As soon as the learned trial Court considers the respective cases on merits and renders a judgement its formal expression is reflected in the decree as defined under the Code of Civil Procedure. Sub Sec. (2) and sub Sec. (9) of Sec. 2 of the CPC, 1908 read as under:-

(3.) Once the trial Court, admittedly, in the instant case has framed a decree on 15/7/1998, then the only remedy which is available under Code of Civil Procedure to the party aggrieved would be the invocation of Sec. 96 of the Code of Civil Procedure, by preferring a regular civil appeal. But unfortunately, may be due to human error of the office of the Appellate Court that in the present case the same has been registered as Miscellaneous Civil Appeal No. 20 of 2005, Ramesh Krishna Badoni v. State, but since the appeal in question was preferred against a judgement and decree as defined under the Code of Civil Procedure the registration of the Appeal as Miscellaneous Appeal will not have any bearing so far it relates to the adjudication of a right of the party to the lis as decided by the learned trial Court is concerned vide its judgement dtd. 24/3/2005. In view of the formal expression of determination of rights by way of a judgement and decree and its challenge in First Appeal though the First Appeal might have been registered as Miscellaneous Civil Appeal No. 20 of 2005, but in its all practical purposes and in the light of spirit of the procedure contained under the Code of Civil Procedure, it would be treated as to be a regular Civil Appeal since being an appeal against a decree rendered in a regular suit.