Gauhati High Court
Kalpana Hazarika vs Rupshekhar Deka And 9 Ors on 13 March, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/5
GAHC010285362018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 33/2019
1:KALPANA HAZARIKA
W/O- LATE PRABHAT HAZARIKA, R/O- GOPINATH NAGAR, RAJANI KANTA
PATH, KALAPAHAR, GUWAHATI- 16, DIST- KAMRUP(M), ASSAM
VERSUS
1:RUPSHEKHAR DEKA AND 9 ORS.
S/O- DR. MUNIN DEKA, R/O- RAJANI KANTA DEKA PATH, GOPINATH
NAGAR, KALAPAHAR, GUWAHATI- 16, DIST- KAMRUP(M), ASSAM
2:RISHIRUP DEKA
S/O- DR. MUNIN DEKA
R/O- RAJANI KANTA DEKA PATH
GOPINATH NAGAR
KALAPAHAR
GUWAHATI- 16
DIST- KAMRUP(M)
ASSAM
3:SANTANU DAS
S/O- LATE DHIRAJ DAS
R/O- RAJANI KANTA DEKA PATH
GOPINATH NAGAR
KALAPAHAR
GUWAHATI- 16
DIST- KAMRUP(M)
ASSAM
4:RAJARSHI DAS
S/O- LATE DHIRAJ DAS
R/O- RAJANI KANTA DEKA PATH
GOPINATH NAGAR
Page No.# 2/5
KALAPAHAR
GUWAHATI- 16
DIST- KAMRUP(M)
ASSAM
5:NABANITA DEKA
R/O- RAJANI KANTA DEKA PATH
GOPINATH NAGAR
KALAPAHAR
GUWAHATI- 16
DIST- KAMRUP(M)
ASSAM
6:ANUSMITA DEKA
R/O- RAJANI KANTA DEKA PATH
GOPINATH NAGAR
KALAPAHAR
GUWAHATI- 16
DIST- KAMRUP(M)
ASSAM
7:LIPSITA DEKA
R/O- RAJANI KANTA DEKA PATH
GOPINATH NAGAR
KALAPAHAR
GUWAHATI- 16
DIST- KAMRUP(M)
ASSAM
8:ANKITA DEKA
R/O- RAJANI KANTA DEKA PATH
GOPINATH NAGAR
KALAPAHAR
GUWAHATI- 16
DIST- KAMRUP(M)
ASSAM
9:ELLORA DEKA
D/O- LATE RAJANI KANTA DEKA
R/O- RAJANI KANTA DEKA PATH
GOPINATH NAGAR
KALAPAHAR
GUWAHATI- 16
Page No.# 3/5
DIST- KAMRUP(M)
ASSAM
10:BOBITA DEKA
R/O- RAJANI KANTA DEKA PATH
GOPINATH NAGAR
KALAPAHAR
GUWAHATI- 16
DIST- KAMRUP(M)
ASSA
Advocate for the Petitioner : MR. L K BORAH
Advocate for the Respondent : MR. O P BHATI
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
13.03.2019 Heard Mr. L. K. Borah, the learned counsel for the petitioner. Also heard Mr. O. P. Bhati, the learned counsel for the respondents.
2. As consented by the learned counsel for the parties to this revision petition the same is taken up for its disposal at this motion stage.
3. The present petitioner against whom an ex-parte decree is pending passed in Title Suit No.263/2010 in the Court of learned Munsiff No.3, Kamrup (M) at Guwahati preferred petition No.2319/13 under Order IX Rule 13 of the CPC alongwith another petition No.2318/13 under Section 5 of the Limitation Act, 1963 with a prayer for condoning the delay in filing the petition under Order IX Rule 13 of the CPC. The learned court of Munsiff No.3 vide its order dated 19.03.2014 was not satisfied with the causes shown in the petition No.2318/13 under Section 5 of the Limitation Act, 1963 which was dismissed and the court below also held that the petition under Order IX Rule 13 of the CPC was also rejected.
4. Being aggrieved by the said order dated 19.03.2014 passed in Misc. (J) Case Page No.# 4/5 No.384/2013 arising out of Title Suit No.263/2010, the petitioner filed an appeal under Order XLIII Rule 1(d) of the CPC which was registered as Misc. Appeal No.09/2014 in the Court of learned Civil Judge No.2, Kamrup (M) at Guwahati. The said appeal was dismissed vide judgment dated 07.07.2018 and while dismissing the same the learned appellate court held that the appeal was filed due to the rejection under Order IX Rule 13 of the CPC which was the consequential effect of the rejection of the petition under Section 5 of the Limitation Act, 1963 and was an independent act on the part of the court below. The Civil Procedure Code contemplates an appeal under Order XLIII Rule 1 of the CPC against orders within the ambit and scope of Section 104 of the CPC. No appeal lies against any orders other than those specified in the said provisions. Section 104 or Order XLIII Rule 1 of the CPC does not include an order passed in a petition filed under Section 5 of the Limitation Act, 1963 as such, the order impugned in the said Misc. Appeal No.09/2014 was not an appellable order within the ambit and scope of Section 104 of the CPC.
5. Being aggrieved the petitioner is before this Court. I have heard the learned counsel but I am unable to accept the reasons for dismissal of the appeal by the appellate court. While dismissing the petition under Section 5 of the Limitation Act, 1963 by the learned Court of Munsiff No.3, Kamrup (M) at Guwahati it was specifically held that as the petition under Section 5 of the Limitation Act was rejected as such, the petition under Order IX Rule 13 of the CPC was also rejected. The first appellate court was oblivious of the said finding. It is the law holding the field in such a situation, if the principal relief sought for, by the petitioner is barred under the provision of Limitation Act and a separate petition for condonation of delay in seeking the principal relief is filed and the said delay is not condoned the same amounts to dismissal of the principal relief.
6. Drawing the said analogy, I am of the considered view that as the present petitioner filed an application under Order IX Rule 13 of the CPC as the principal relief alongwith an application for condonation of delay and an order passed after dismissal of the delay condonation application the same amounts to rejection of the petition for the principal relief sought for, by the petitioner.
7. Considering the same, this revision petition is allowed by setting aside the impugned order dated 07.07.2018 passed in Misc. Appeal No.09/2014 by the learned Civil Page No.# 5/5 Judge No.2, Kamrup (M) at Guwahati and remand the same to decide it afresh considering the observations made in this revision petition.
8. The parties to this revision petition shall appear before the appellate court on 25.03.2019 whereafter the court below shall dispose of the appeal within a period of 1 (one) month from the date of appearance.
9. The revision petition stands disposed of.
JUDGE Comparing Assistant