If a civil suit is finally decided by a decree while an appeal against an earlier interlocutory order passed in that suit is still pending before the Supreme Court, does the appeal survive?
Coram: Justice Prashant Kumar Mishra · Justice Vikram Nath
Code of Civil Procedure, 1908 — Order XXXVII r.3(6)(b) — Appeal against interim order — Rendered infructuous by final decree — Code of Civil Procedure, 1908 — Interlocutory appeal — Suit finally decided — Appeal infructuous — Held: An appeal challenging an interlocutory order passed during the pendency of a suit becomes infructuous once the suit itself has been finally decided by a decree, even where this Court had earlier stayed the interlocutory order under appeal; the appeal is dismissed as infructuous. (¶5-6)
If a civil suit is finally decided by a decree while an appeal against an earlier interlocutory order passed in that suit is still pending before the Supreme Court, does the appeal survive?
No. Once the suit has been finally decided by a decree, an appeal challenging only an interlocutory order made during its pendency becomes infructuous and is liable to be dismissed as such, regardless of any interim stay earlier granted by the Court.
What did the Supreme Court finally decide in this appeal concerning the trial court''s rejection of the respondents'' memo under Order XXXVII of the CPC?
The Court dismissed the civil appeal as infructuous, since the underlying suit itself had already been finally decided by a decree during the pendency of the appeal.
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2024 INSC 460 REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4120 OF 2024
ANISH M RAWTHER @ ANEES MOHAMMED RAWTHER …. APPELLANT
VERSUS
HAFEEZ UR RAHMAN & ORS. ...RESPONDENTS
JUDGMENT
PRASHANT KUMAR MISHRA, J.
This appeal has been preferred by the appellant/defendant
challenging the Order passed by the High Court of Karnataka
on 21st March 2022 in Writ Petition No. 10975 of 2020
(GM-CPC) whereby the High Court allowed the writ petition and
set aside the Order dated 07th March 2020 passed by the Trial
Court in Com. OS No. 1026 of 2018 and further directed the
Trial Court to accept the memo dated 14th November 2019
which was submitted by the respondents/plaintiffs and pass
appropriate orders accordingly.
The brief facts, necessary for disposal of this Civil Appeal
are that the respondents/plaintiffs preferred a suit under Order
XXXVII of Code of Civil Procedure, 1908 (henceforth ‘CPC’)
against the appellants/defendants for recovery of Rs.
1,04,16,576/- with interest. The appellants/defendants entered
appearance and filed application seeking leave to defend which
was allowed by the Trial Court on 19th June 2019 with a
direction to the appellants/defendants to deposit 50% of the
suit claim. The said order was challenged before the High Court
in Writ Petition No. 28349 of 2019 which was dismissed on 08th
August 2019 against which an SLP (C) No. 20626 of 2019 was
preferred by the appellants/defendants which came to be
dismissed on 06th September 2019, by passing the following
order:-
“We are not inclined to interfere with the impugned order passed by the High Court. The special leave petition, is accordingly, dismissed. However, it is open for the petitioners to approach the High Court within four weeks from today for variation of the order satisfying the High Court that he can provide adequate security in terms of the orders of the High Court.”
Despite the above order passed by this Court, the
appellants/defendants did not approach the High Court for
variation of the order as permitted by this Court.
When the matter stood thus, the respondent/plaintiff filed
memo dated 14th November 2019, requesting the Trial Court to
decree the suit in terms of Order XXXVII Rule 3(6)(b) of the
CPC. The Trial Court after considering the material on record,
including the objections by the appellant/defendant rejected
the memo vide order dated 07th March 2020. This order was
assailed by the respondent/plaintiff before the High Court which
has been allowed under the impugned order simultaneously
directing the Trial Court to accept the memo and pass
appropriate orders accordingly.
The appellants/defendants have argued that in view of
Section 14 of the Insolvency and Bankruptcy Code, 2016
(henceforth ‘IBC’), the moratorium has become operational,
therefore, the suit cannot proceed. This argument was not
accepted by the High Court and under the impugned order, the
Trial Court was directed to accept the memo and pass
appropriate orders. It is important to notice that this Court has
passed an order on 01st December 2023 staying the impugned
order, however, much prior to the interim order of this Court,
the suit itself was decided finally by passing a decree on 20th
April 2023. It is not brought to our notice that the said decree
has been challenged any further by the defendants. Thus, for
the present, the suit is not pending, therefore, the present
appeal which arises out of an interim order passed by the Trial
Court during pendency of the suit, has been rendered
infructuous.
The Civil Appeal is, accordingly, dismissed as infructuous.
………………………………………J. (VIKRAM NATH)
.......……………………………….J. (PRASHANT KUMAR MISHRA) NEW DELHI; JUNE 14, 2024.
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