Code of Civil Procedure, 1908-Order 20 r. 11-As amended in 1976- Interpretation of Direction regarding payment of decretal amount-An order- Till incorporated in Decree-No appeal lies against that order-Appeal lies against decree containing such direction-Order not judgment' within clause 15 of Letters Patent.

Code of Civil Procedure, Order 41, r. 1-Interpretation of-Filing copy of decree with memorandum of appeal mandatory Appeal filed without decree invalid-Filing or withdrawal of incompetent appeal-No bar to file proper appeal against decree.

Code of Civil Procedure, Order 2, r. 2-Interpretation of Not applicable to appeals.

Code of Civil Procedure, Order 20, r. 11, Order 2, r. 2 and Order 23, г. 1- Interpretation of-Do not deal with right of appeal or extinguishment thereof-Do not confer or deprive right of appeal. Right to appeal-Creation of statute-May be lost by law or conduct of appellant or appellant may disentitle himself to enforce right of appeal-Prayer regarding payment of decretal amount does not deprive a party of his right to file an appeal against the decree-Mistaken advice of lawyer does not deprive appellant of his right of appeal.

The respondent, as plaintiff, filed a suit against the appellant, as defendant, in the Original side of the Bombay High Court for the enforcement of its claim for a large amount of over Rs. 40 lakhs. The appellant not only contested the claim but also made a counter-claim. The appellant made a request that in the event of a decree being passed against them, they may be allowed to pay the decretal amount in instalments. A single Judge dismissed the counter-claim and passed a decree in favour of respondent and allowed the decretal amount to be paid in instalments. Delivery of Judgment which commenced on 12th December 1980 was concluded on 16th December 1980, upon which the advocates for the appellant addressed a letter to the Prothonotary and Senior Master, High Court, requesting that the accompanying memorandum of appeal be taken on file. This appeal which was numbered 36 of 1981 was filed on 20th January, 1981. The appeal was directed against the order in respect of instalments. On 21st January 1981, when the matter was called for admission before a Division Bench the appellant asked for leave to withdraw the appeal and the appeal was allowed to be withdrawn. A week after the withdrawal of appeal No. 36 the appellant filed an appeal against the judgment taking grounds relating to the merits of the case and also the direction as to instalments. This appeal was numbered 44 of 1981. After this appeal was heard on merits for a few days, the respondent raised a preliminary objection that because the appellant had earlier filed appeal No. 36 against the provision regarding installments and which had been withdrawn, the present appeal No. 44 was not maintainable. The Division Bench upheld the preliminary objection and dismissed appeal No. 44 on the ground that the appellant had by filing appeal no. 36 against the provision relating to instalments abandoned its right to challenge the decree on merits.

The appellant contended in this Court that the filing of earlier appeal No. 36 or the withdrawal thereof does not affect the right of appellant to prefer appeal no. 44 against the decree on merits. Appeal No. 36 was filed against the order of the High Court passed under Order 20, r. 11 of the Code of Civil Procedure in regard to instalments only and not against the decree. Appeal No. 36 had been filed soon after the judgment had been pronounced and long before the decree incorporating the order regarding instalments had been drawn up. Appeal No. 36 must be considered to be an appeal against the order and not against the decree. The right to prefer an appeal is a creature of statute. The order regarding instalments is not appealable under C.P.C. and such an order cannot also be considered to be a 'Judgment' within the meaning of clause 15 of the Letters Patent. Appeal No. 36 which was against the order regarding instalments was incompetent and was therefore no appeal in the eye of law and for all legal purposes was non-est. Even if appeal No. 36 has to be considered an appeal against the decree in view of amended provision of Order 20, r. 11 of C.P.C., the said appeal still must be held to be incompetent and no appeal in the eye of law as the appeal was filed without a certified copy of the decree and was even withdrawn before a certified copy of the decree could be filed. Appeal No. 44 filed against the decree in terms of the provisions contained. in the Original Side Rules of Bombay High Court becomes a proper and competent appeal as the earlier appeal No. 36 was not a valid appeal in the eye of law. The provisions of Order 2, r. 2 and Order 23, r. 1 of C.P.C. do not in any way affect the maintainability and the merits of appeal no. 44 as the cause of action and the subject matter of appeal No. 44 are entirely different from the cause of action and the subject matter of appeal No. 36. The appellant did not waive his statutory right to file the appeal. The appellant by his conduct has also not disentitled himself to file Appeal No. 44. Appeal no. 36 was filed on the advice of lawyer under mistaken belief; mistaken advice of a lawyer cannot be the foundation of a plea of estoppel. No prejudice has been caused to the respondent by filing and withdrawal of appeal No. 36 by the appellant.

The respondent contended that in view of the amended provisions of Order 20, r. 11, the order regarding instalments which is required to be incorporated in the decree necessarily forms a part of the decree. In view of the provisions contained in Order 2, r. 2 and Order 23, r. 1 of C.P.C. it was open to the appellant to prefer an appeal against the decree or to appeal against any part thereof. The appellant preferred to file appeal No. 36 only against the part of the decree relating to instalments and not against the decree as a whole. The filing of appeal restricted to the directions as to the instalments bars a subsequent appeal against the decree on merits. The appellant having obtained a benefit or advantage under the decree to the prejudice of respondent cannot now question the correctness of the decree passed.