Gauhati High Court
Suresh Kumar Khetawat And Anr vs Canara Bank on 14 July, 2026
Page No.# 1/12
GAHC010110642026
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RFA/43/2026
SURESH KUMAR KHETAWAT AND ANR
PROPRIETOR OF M/S SHREE KHETAWAT INDUSTRIES, S/O LATE MAHABIR
PRASAD KHETAWAT, R/O HOUSE NO. 231 (GHA), WARD NO. 3, T. R.
PHUKAN ROAD, HAIBARGAON, P.S.- NAGAON, DIST- NAGAON, ASSAM,
PIN- 782002
2: M/S SHREE KHETAWAT INDUSTRIES
REPRESENTED BY ITS PROPRIETOR
SHRI SURESH KUMAR KHETAWAT
OFFICE ADDRESS- T. R. PHOOKAN ROAD
HAIBARGAON
P.S.- NAGAON
DIST- NAGAON
ASSAM
PIN- 78200
VERSUS
CANARA BANK, NAGAON BRANCH AND 3 ORS.
REPRESENTED BY ITS SENIOR MANAGER, OFFICE ADDRESS- VIP ROAD,
NEAR STADIUM MARKET, CHRISTIANPATTY, NAGAON, P.S.- NAGAON,
DIST- NAGAON, ASSAM- 782002
2:CANARA BANK
ARM BRANCH
REPRESENTED BY THE AUTHORISED OFFICER
1ST FLOOR
DEE BEE GRANDE
PANJABARI ROAD
SIXMILE
GUWAHATI
DIST- KAMRUP (M)
ASSAM
PIN- 781022
Page No.# 2/12
3:CANARA BANK
CIRCLE OFFICE
REPRESENTED BY ITS CHIEF MANAGER
1ST FLOOR
DEE BEE GRANDE
PANJABARI ROAD
SIXMILE
GUWAHATI
DIST- KAMRUP (M)
ASSAM
PIN- 781022
4:SMT. SUCHITA DEVI KHETAWAT
W/O SHRI SURESH KUMAR KHETAWAT
R/O FLAT NO. 5B
BLOCK B
SUBHAM GARDEN
BINOWA NAGAR
KALAPAHAR
GUWAHATI
DIST- KAMRUP (M)
ASSAM
PIN- 78101
Advocate for the Petitioner : MS M HAZARIKA, MS V V THANYU,MS. S NEWAR
Advocate for the Respondent : ,
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
14.07.2026
Heard Mrs. M. Hazarika, learned Senior Counsel, assisted by Ms.
V. V. Thanyu, learned counsel for the appellant.
2. This appeal, under Section 96, read with Order XLI Rule 1 CPC,
is directed against the judgment and order, dated 10.03.2026, passed
by the Learned Civil Judge (Senior Division), Nagaon, rejecting the
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plaint under Order VII Rule 11(d) CPC.
3. It is to be noted here that the Appellant No. 1 herein had
instituted a suit, being Title Suit No. 50/2024, (Shri Suresh Kumar
Khetawat & Anr. vs. Canara Bank, Nagaon Branch & 3 Ors.), on
10.04.2024, before the Learned Civil Judge (Senior Division), Nagaon
(Trial Court, hereinafter), seeking adecree for declarations, damages,
and other consequential reliefs arising out of fraud, manipulation of
loan accounts, unauthorized sanction of credit facilities, and illegal
recovery proceedings. The said suit was duly registered and numbered
as Title Suit No. 50 of 2024, and the learned Trial Court had issued
summons to the respondent.
4. The respondents herein had entered appearance and filed a joint
written statement. On the same date, the respondent No. 1 also filed a
petition under Order VII Rule 11 read with Section 151 of the Code of
Civil Procedure, 1908, being Petition No. 1615/2024, which was
subsequently registered as Misc. (J) Case No. 217/2024, in T.S. No.
50/2024. The appellants herein had filed their written objection to
Misc. (J) Case No. 217/2024. Then after hearing both sides, the
learned Trial Court had, vide impugned judgment and order dated
10.03.2026, in Misc. (J) Case No. 217/2024, rejected the plaint under
Order VII Rule 11(d) CPC, by holding that the suit was barred under
Section 34 of the SARFAESI Act, 2002, consequently, dismissed the
Title Suit No. 50/2024.
5. Being aggrieved, the appellants have preferred the present
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appeal.
6. This Court has carefully perused the memo of appeal and the
document enclosed therewith.
7. It is worth mentioning in this context that in the case of Sayyed
Ayaz Ali vs. Prakash G. Goyal and others, reported in (2021)
7 SCC 456, Hon’ble Supreme Court has held that the rejection of a
plaintshall be deemed to be a decree. It has also been held as under:-
17. Section 2(2) CPC defines the expression
“decree” in the following terms:-
“2. (2) “decree” means the formal expression
of an adjudication which, so far as regards
the Court expressing it, conclusively
determines the rights of the parties with
regard to all or any of the matters in
controversy in the suit and may be either
preliminary or final. It shall be deemed to
include the rejection of a plaint and the
determination of any question within Section
144, but shall not include–
(a) any adjudication from which an appeal
lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.-A decree is preliminary when
further proceedings have to be taken before
the suit can be completely disposed of. It is
final when such adjudication completely
disposes of the suit. It may be partly
preliminary and partly final;”
18. Order 7 Rule 13 provides that the rejection of
the plaint “on any of the grounds hereinbefore
Page No.# 5/12mentioned shall not of its own force preclude the
plaintiff from presenting a fresh plaint in
respect of the same cause of action”.
19. The definition of “decree” in Section 2(2)
“shall be deemed to include the rejection of a
plaint”. Hence, the order of the trial court
rejecting the plaint is subject to a first appeal
under Section 96 CPC………..
……………………………………………….”
8. It is to be noted here that at the time of hearing, a specific query
was put to the learned counsel for the appellant that whether, the
present appeal is maintainable, as it has not been preferred against
the decree, as mandated by Section 96 CPC, which provides for
appeals from original decrees and as it does not provide for appeals
from judgments independent of a decree, and similarly, Order 41 Rule
1 CPC, also reinforces that the appeal is against the decree, and the
memorandum of appeal shall be accompanied by a copy of the decree
appealed from (and, unless dispensed with, a copy of the judgment on
which it is founded), whereas the present appeal is against judgment
and order only and not against the decree.
8.1. The learned counsel for the appellant then, referring to a decision
of Kerala High Court in Reetha vs. Paul, delivered on Nov. 11 of
2014, 2014 SCC OnLine Ker 28458, submitted that after the
amendment of Order XLI Rule 1 CPC by the Code of Civil Procedure
(Amendment) Act 1999 (Act 46 of 1999) obviated the necessity for a
memorandum of appeal to be accompanied by a copy of the decree,
and that the Kerala High Court has also discussed a decision of Hon’ble
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Supreme Court in Banarasi and others vs. Ram Phal, reported
in (2003) 9 SCC 606. The learned counsel further submitted that the
decree could not be enclosed with the appeal memo as the same has
not been prepared by the learned Trial Court and on the other hand
the period of limitation is about to over, for which there was a
necessity in filing the appeal without the decree.
9. Thus, the anguish of this Court, regarding the very maintainability
of the appeal, against the judgment and order, under Section 96 and
Order XLI Rule 1, which provides for appeal from original decree,
remained unaddressed. Moreover, perusal of the entire memorandum
of appeal reveals that there is no whisper therein about the decree
being not drawn up by the learned Trial Court, on account of which,
the same could not be enclosed with the memorandum of appeal.
10. This Court has carefully considered the submission of learned
counsel for the appellant and also carefully gone through the decision
relied upon by her and also gone through the decision of Hon’ble
Supreme Court Banarasi & Ors. (supra).
11. But, this Court is afraid that the decision of Kerala High Court and
also the decision of Hon’ble Supreme Court in Banarasi & Ors.
(supra) do not advance her argument. Rather, the proposition laid
down in the case of Banarasi & Ors. (supra), completely nullifies
the argument so advanced by the learned counsel for the
appellant.Notably, in the said case, in no uncertain term, Hon’ble
Supreme Court has held that under Section 96 appeal lies only against
the decree, not against the judgment or findings.The relevant
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paragraph is extracted herein below for better understanding the legal
position:-
“8. Sections 96 and 100 CPC make provision for an
appeal being preferred from every original decree
or from every decree passed in appeal
respectively; none of the provisions enumerates
the person who can file an appeal. However, it is
settled by a long catena of decisions that to be
entitled to file an appeal the person must be
one aggrieved by the decree. Unless a person is
prejudicially or adversely affected by the decree
he is not entitled to file an appeal.
(See Phoolchand v. GopalLal [AIR 1967 SC 1470 :
(1967)3 SCR 153], Jatan Kumar Golcha vs. Golcha
Properties (P) Ltd.[(1970) 3 SCC 573]and Ganga
Bai v. Vijay Kumar[(1974) 2 SCC 393].) No appeal
lies against a mere finding. It is significant to
note that both Sections 96 and 100 CPC provide for
an appeal against decree and not
against judgment.”
11.1. Again in the case of Jagat Dhish Bhargava vs. Jawahar
Lal Bhargava & Others, reported in 1961 SCR (2) 918, a three
Judges Bench of Hon’ble Supreme Court, while dealing with the
requirement of accompanying the memorandum of appeal by the
decree, has held as under:-
“The position of law under 0. 41, r. 1 is
absolutely clear. Under the said rule every appeal
has to be preferred in the form of a memorandum
signed by the appellant or his pleader and
presented to the Court or to such officer as it
appoints in that behalf, and has to be accompanied
Page No.# 8/12by a copy of the decree appealed from, and of the
judgment on which it is founded. Rule 1 empowers
the appellate Court to dispense with the filing of
the judgment but there is no jurisdiction in the
appellate Court to dispense with the filing of the
decree. Where the decree consists of different
distinct and severable directions enforceable
against the same or several defendants the Court
may permit the filing of such portions of the
decree as are the subject matter of the appeal but
that is a problem with which we are not concerned
in the present case. In law the appeal is not so
much against the judgment as against the decree;
that is why Article 156 of the Limitation Act
prescribes a period of 90 days for such appeals
and provides that the period commences to run from
the date of the decree under appeal. Therefore
there is no doubt that the requirements that the
decree should be filed along with the memorandum
of appeal is mandatory, and in the absence of the
decree the filing of the appeal would be
incomplete, defective and incompetent.”
12. The proposition of law, as laid down in the said case also affirmed
by another three Judges Bench of Hon’ble Supreme Court, in the case
of Phoolchand and Anr. vs. Gopal Lal, reported in 1967 SCR
(3) 153, however, an exception to the said proposition was carved
out in the said case and it has been held that in absence of a copy of
the decree, the appeal could be maintained.
13. Notably, the amendment of Order XLI Rule 1 CPC vide Code of
Civil Procedure (Amendment) Act 1999 (Act 46 of 1999) obviated the
necessity of memorandum of appeal to be accompanied by a copy of
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decree. Even though amendment of Order XLI Rule 1, obviated the
necessity of accompanying the memorandum of appeal by a copy of
the decree, yet Section 96 of the CPC is not amended and as such the
mandate of the said provision remains the same.
14. Notably, in the instant case, not a single whisper is therein the
memo of appeal to that effect that the decree was not drawn up by the
learned Trial Court. Though it was the oral submission of the learned
counsel for the appellant that period of limitation is about to over for
which the appellants have been compelled to file the appeal urgently
without the decree, yet Article 116 of the Limitation Act prescribes a
period of 90 days for filing an appeal and provides that the period
commences to run from the date of the decree or order, under appeal.
15. It is well settled that judgment explains why, while the decree
states what has been decided and is enforceable. Appeal lies against
the decree, not the judgment alone . Once the formal decree is drawn
up, the appeal proceeds against the decree, and the judgment ceases
to have the effect of a decree for execution or other purposes. It is
equally well settled that filing of an appeal only against the judgment
(without challenging the decree where it exists) can be defective. It
must be against the decree (as defined under Section 2(2) CPC), in
view of the decision of Hon’ble Supreme Court in Banarasi & Ors.
(supra).
16. Similar proposition is reiterated in the case of Ganga Bai vs.
Vijay Kumar and others, reported in (1974) 2 SCC 393, that
appeals are maintainable against decrees (or appealable orders), not
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isolated findings or judgments alone. Relevant para are extracted
herein below:-
“16. Under Section 96(1) of the Code of Civil
Procedure, save where otherwise expressly provided
by the Code or by any other law for the time being
in force, an appeal lies from every decree passed
by any court exercising original jurisdiction, to
the Court authorised to hear appeals from the
decisions of such court. Section 100 provides for
a second appeal to the High Court from an
appellate decree passed by a court subordinate to
the High Court. Section 104(1) provides for
appeals against orders of the kind therein
mentioned and ordains that save as otherwise
expressly provided by the Code or by any law for
the time being in force an appeal shall lie “from
no other orders”. Clause (i) of this section
provides for an appeal against “any orders made
under Rules from which an appeal is expressly
allowed by rules”. Order 43 Rule 1 of the Code,
which by reason of clause (i) of Section 104(1)
forms a part of that section, provides for appeals
against orders passed under various rules referred
to in clauses (a) to (w) thereof. Finally, Section
105(1) of the Code lays down that save as
otherwise expressly provided, no appeal shall lie
from any order made by a court in exercise of its
original or appellate jurisdiction.
17. These provisions show that under the Code of
Civil Procedure, an appeal lies only as against a
decree or as against an order passed under rules
from which an appeal is expressly allowed by Order
43 Rule 1. No appeal can lie against a mere
finding for the simple reason that the Code does
not provide for any such appeal. ……..
……………”
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17. Under the given factual and legal position, more specifically
drawing premises from the decision of Hon’ble Supreme Court in
Banarasi & Ors.(supra), this Court is of the considered opinion
that an appeal against the judgment alone is not maintainable under
Section 96 of the CPC, which provides for an appeal from original
decree only, when the decree was drawn by the learned Trial Court.
However, in the event of the decree being not drawn up, an exception
can be carved out under Order XX Rule 6A (2) CPC.
18. In view of the aforesaid discussion and finding while not
dismissing the appeal being not maintainable, this Court, on the basis
of the oral submission of learned counsel for the appellant, is inclined
to direct the appellant to file an amended memorandum of appeal
challenging the decree and also to enclose the decree with the same.
19. It is however, a fact that Article 156 of the Limitation Act was there
in the erstwhile Limitation Act, 1908 and the said Act is no longer in
existence after the enactment of the new Limitation Act, 1963. But,
similar provision is there in Article 116 of the Act of 1963, which
prescribes a period of 90 days for filing an appeal to a High Court and
it also provides that the period commences to run from the date of the
decree or order, under appeal. If the limitation has to be counted from
the date of decree, which according to the learned counsel for the
appellant is yet to drawn up, the apprehension of the appeal from
being time barred is certainly unfounded.
20. List the matter after two weeks.
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JUDGE
Comparing Assistant
