P L D 1965 (W (PLP)

(r) an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX;" It is obvious that section 96 of C. P. C. is not applicable to the present case because it applies to decrees only. As to Order XLIII, rule 1 (r) a Division Bench of this Court has held in the above mentioned case of Lahore as follows: "The contention of Mr. Zafar that the Code of Civil Procedure does, it enjoin that it is only a party to a suit who can file an appeal is not entirely correct because one finds that the language employed in some of the provisions of the Code, for example, Order XLI, rule 4, would make it appear that it is only a party to a proceeding who can appeal against the order or decision passed therein. The only reason able interpretation that can be placed on the language employed in the relevant provisions of the Code of Civil Procedure is that an appeal can be instituted by a party to the proceedings in which the order sought to be appealed against was passed and this conclusion is inevitable even if I proceed on the assump tion that the Code of Civil Procedure did not in terms say that an appeal could be presented by a party to the proceedings in which the order appealed against was passed. It is inconceiv able that the intention of the authors of the Code of Civil Procedure, parts of which devote meticulous attention to the question what persons could or should be parties to proceedings in Courts, was that an appeal could be lodged by person who was not a party to the proceedings in which the order intended to be appealed against was passed. If this were so, numerous rules occurring in the Code of Civil Procedure with regard to impleading persons as parties to the proceedings governed by that Code would be entirely redundant and to the absence of very cogent proof to that effect I am not prepared to hold that the Legislature which was responsible for passing the Code of Civil Procedure had indulged in redundancy on a very prolix scale." The above observation was obiter because in that case the appellant had preferred a delayed appeal after becoming a party tin to the suit and the question of the maintainability of an appeal by a person who is not a party to the order under appeal came under examination merely as an excuse for the delay. Moreover, their Lordships have dealt with the right to appeal without reference to the actual provisions of C. P. C. and have come to the conclusion that it was "inconceivable" that under that Code "an appeal could be lodged by a person who was not a party td the proceedings in which the order intended to be appealed against was passed", because such a conception of the legal provisions would establish the charge of redundancy on a very prolix scale "against the Legislature which was responsible for passing the Code". The reasoning was obviously not intended to be the final guide.

11. The subject has been treated with more specific reference' to the provisions of C. P. C. in the above‑mentioned judgment of the Madras High Court. A Division Bench of that Court has observed that the relevant provisions are section 96, Order XLI and section 146 of C. P. C. and that in none of them there is any mention as to who can prefer an appeal. Order XXII, rule 10 of C. P. C. "Covers cases of devolution" and Order XXXI, rule 1 of C. P. C. deals with the representation of the interested persons by a trustee, executor or administrator. The Bench has held that no person who is not a party to the suit can prefer an appeal under section 96 of C. P. C. because Sir Dinshaw Mulla has so observed in his commentary and because the same view was taken in Mohan Lal v. Imtiaz Ali (I L R 18 All. 332).

12. In the above‑mentioned case the appeal had been preferred by a creditor against a decree granted in a suit instituted by a money‑lender and his transferee against the Official Receiver of Madras. The Official Receiver did not appeal but supported the appeal of the creditor. They jointly contended that the Official Receiver had occupied a representa tive position; therefore, the appeal was competent. The Court made an effort to discover a positive provision of law in favour of the right to appeal of a person who is not a party to the decision which he questions and was not prepared to allow such a person to appeal on the basis of inferences drawn from the absence of any prohibition against it, because‑ " the right of appeal is a special creature of statute and it can be exercised only by those in whom the power is vested expressly, or impliedly by the statute. In re: Makham v. Earkham (1881)16 Ch. D. 1, relied on by the appellant, leave to a person interested in, but not party to an action, to appeal from an order was given by the Court but it will appear from the report that such leave could be obtained according to the practice before the Judicature Acts." An application for leave to appeal was also rejected as follows: "The next question is whether. leave may be granted to the appellant. No provision of law, or rule or practice, was shown to us entitling him to claim such leave."

13. Taking up for further examination the question of the appealability of an ex parte order of injunction, I think the words of Order XLIII, rule 1 of C. P. C., reproduced above, are decisive. An appeal lies if the ex parte order can be said R to be an "order" within the meaning of Order XXXIX, rule 1 or rule 2 or rule 4 or rule 10 of C. P. C. read with Order XLIII, rule 1 (r) of C. P. C. An "order" is defined in section 2 (14) of .3 C. P. C. as follows: " `Order' means the formal expression of any decision of a Civil Court which is not a decree;" This definition apparently should, and I believe, it does, easily include an ex parte order, irrespective of whether it is expressly made subject to objection by the absent party or whether the absent party later on questions it under Order XXXIX, rule 4 of C. P. C. The existence of these remedies as a result of the ex parte character of the order cannot completely takes away the right of appeal conferred in terms of Order XLIII, rule 1 of C. P. C. It makes no difference to such a right whether the order is made for a fixed period of time or till further order, because the duration for which an order is made is not relevant to the contents of Order XLIII, rule 1 of C. P. C. What can make a difference for purposes of appeal under this provision is that the decision may not be an "order" as‑ defined in C. P. C., as for instance, the decision to postpone the hearing for lack of time, or there may be a decision which is an order in terms of C. P. C., but not be an order under Order XXXIX, rule 1, 2, 4 or 10, C. P. C. as for instance, the order that only notice of the application be given to the absent party and its service be awaited. A revision, and not an appeal, may lie from such decisions if they attract section 115 of C. P. C.

14. The above examination of the principle of law should be sufficient to support my view that the appeals preferred by Wazir Ali Industries Limited were maintainable against the ex parte orders of the trial Court; but in appreciation of the valuable assistance rendered by Mr. Dingomal, I refer to all of the precedents cited by him in support of the proposition. They are: (1) Balabh Das v. Muhammad Ishaq A I R 1933 Lah. 282. (2) Harikishan Lal v. Peoples Bank A I R 1936 Lah. 102. (3) L. D. Meston School Society v. Kashi Nath A I R 1951 All. 558. (4) Nazir v. Rex A I R 1951 All. 3, at p. 14. (5) Saraju Prashad Singh v. Gangaprosad A I R 1951 Cal. 446. (6) Chathakni Ramulu v. Chathakni Ganga Ram A I R 1953 Hyd. 138. (7) De vasahayam v. Arumukhan A I R 1953 Tra‑Co. 241. (8) Associated Cement Companies Ltd. v. Province of Punjab P L D 1954 Lah. 151.

15. The right of a person who is not a party to a decision to prefer an appeal against it is neither expressly nor by necessary implication barred by any provision of C. P. C. though such a right has not been .expressly conferred; but for that matter C. P. C. does not expressly mention in the general provisions n that confer the right of appeal as to who can exercise the right. This is borne out by the language of section 96, section 100, section 104 and Order XLIII, rule I of C. P. C. Section 96 of C. P. C. and the relevant part of Order XLIII, rule 1 of C. P. C. have been reproduced above. Sections 100 and 104 of C. P. C. are as follows:‑-- "100.‑(1) Save .where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:‑ (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. (2) An appeal may lie under this section from an appellate decree passed ex parte." "104.‑(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders: (f ) an order under section 35‑A; (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the Civil Prison of any person except where such ^ arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section."

16. The question which arises from the absence of any satisfactory guidance in the above‑mentioned four provisions, is: what is the principle for determining as to who may and who may not appeal? The High Court of Calcutta said as early as in 1905 that‑ "The question who may appeal is determinable by the common sense consideration that there can be no appeal where there is nothing to appeal about." See Krishna v. Mohesl (9 C W N 584). A Division Bench of the High Court of Lahore has said in 1919 that‑ "Mr. Santanam urges that section 96, C. P. C., does not lay down who may appeal. An appeal, however, is a stage in and part of the proceedings in‑a suit and it therefore appears obvious to us that no person can appeal unless he is a party to the suit." See Rustamjee v. Official Liquidator and Amritsar Bank Ltd. (1919 P R 79)

17. It follows from the above quoted basic considerations that a stranger to a proceeding whose interest is not adversely affected by the judgment given in it cannot be allowed to appeal against it, because it would be a superfluous exercise; but a trans feree or a legal representative of a party to a proceeding, or the benamidar of the ostensible owner who is a party, or the principal of an agent who is a party, or a person whose name has been screened from the view by the parties to deprive him of his right is, in reality, not a stranger to the proceedings. He may sometimes be as good as a party. Nobody who is adversely affected by such a judgment or order can be left high and dry without a remedy merely because his name did not figure in the list of the parties arrayed in the proceedings. All necessary and proper parties are usually impleaded in a proceeding by the main contestants in order to protect their own interests; therefore, it is generally safe to assume that those who are not arrayed as parties are not persons interested in the proceeding and its result, but this rule is not such a safe guide as to have no exceptions. An English Court has held In re: B (an infant) ((1958) 1 Q B 12) that if a person alleging himself to be aggrieved by a judgment or order can make out a prima facie case why he should have leave to appeal against it, he will, as a rule, get it. This is not inconsistent with the observation found in some English cases that leave will not be granted when the applicant could not have been a party. See Youngs Deagett v. Revtt ((1885) 30 Ch. D 421, (C A)) because this does not mean that the facts known only at the time of a proceeding that is in question and not those which come to light after the judgment or order may be taken into consideration at the time of giving leave to appeal. Chitaley and Rao have stated the principle in Note 6 on section 96, C. P. C. (Edn. VII) as follows:-- "As a general principle, no one can appeal from a decree unless he was a party, or unless his privity in estate, title, or interest is apparent on the face of the record. But a person who is not a party to the action may be allowed to appeal if he is adversely affected by the order, provided the appellate Court thinks fit in its discretion to grant such leave."

17. The practice of regarding the leave to appeal as necessary for those who were not parties before the leave, is a safety valve against the perpetuation of injustice as well as against useless appeals. It does not violate the common law doctrine that the right to appeal is a substantive one and that the jurisdiction to entertain and decide appeals cannot be assumed without a statutory sanction for it, because leave to appeal is and can only be granted or refused in accordance with the statutory provisions applicable to the Joinder or non joinder of parties to appeals after examining their applicability in spite of the obscurity of given circumstances in this respect. The obscurity may be the result of peculiar facts or the machinations of parties. The need to remove the obscurity and the difficulty which is sometimes felt in removing it, explains the reason why the benefit of doubt is given to the person who applies for leave to appeal if the situation is not fully explained but injustice is strongly suspected. The right to appeal arises under the statutory provisions only, such as section 96, section 100, section 104 and Order XLIII, rule 1 of C. P. C. but it is attached to those persons whose interests are prejudicially affected. It is well known that everybody who is a party to an appealable judgment or order is not allowed to appeal against it; therefore, though a party may ordinarily appeal, yet being a party is not a test without any exception. A Division Bench of the Madras High Court has laid down the test in P. Ammal v. State of Madras (A I R 1953 Mad. 485) for granting the leave to appeal to one who was not a party to the judgment or order under appeal as follows:-- "Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may to some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceeding, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings."

18. The practice of enabling those who were not parties to the proceedings and orders or judgments to apply for leave to appeal is thus a just one and is consistent with the relevant statutory provisions; but when we think of such a leave; let us not insist on the form of it because an appeal that is entertained without a formal application may still imply such an application or such leave. See for instance, The Province of Bombay v. Western India Automobile Association (A I R 1949 Bom. 141).

19. In support of the propsition that in this case Wazir Ali Industries Limited could prefer Appeal No. 467 of 1964 though not impleaded as a party to Suit No. 369 of 19644, Mr. Dingomal pointed out that Wazir Ali Industries Limited had been collusively left out of the suit. Collusion can be suspected because, according to counsel for Habib Bank Limited, the stand of his client in the appeal was that payment had to be made by it to National & Grindlay's Limited and not to Wazir Ali Industries Limited therefore the latter had no interest in the case. If this were a correct stand for that bank to take then it could have as well contended that it had to pay and National Grindlay's Bank Limited had to receive; therefore neither Saya & Co. nor Wazir Ali Industries Limited had anything to do with the payments and receipts. This stand disclosed by Mr. Rafi Raza of Habib Bank Limited was definitely wrong, and Wazir Ali Industries Limited had the right to appeal against the order which was obtained to its deteriment.

20. Mr. Dingomal has cited Bombay Province v. W. I. Automobile Association, P. Ammal v. State of Madras, Executive Officer v. Raghavan Pillai (A I R 1961 Ker. 114). D. Pullayya v. A. Nagabhusnanam (A I R 1962 A P 140), Shivaraya v. Siddamma (A I R 1961 Mys. 127), Halsbury, Vol. 30, p. 461 in his favour and explained or distinguished Indian Bank Ltd. v. Bansiram, Razia Begum v. Iqbal Begum and Al‑Kisan Transport Co. Ltd. v. R. T. A., Lahore (P L D 1957 Lah. 1040).

21. The conclusion of all that has been said above is that none of the contentions raised by the applicant prevail. Both the revision applications are, therefore, dismissed without prejudice to the pending appeal and to the suits in respect of their merits. The applicant shall pay the cost of these proceedings. K. B. A. Applications dismissed.