Patna High Court
Jogendra Prasad Singh And Anr. vs Satya Narayan Singh And Ors. on 31 January, 2002
Equivalent citations: 2002(1)BLJR563
JUDGMENT Radha Mohan Prasad, J.
1. This second appeal is directed against the order dated 30th June, 1995 passed by the District Judge, Purnia in Title Appeal No. 35 of 1993, whereby and whereunder the lower appellate Court has not found any justified reason to condone the abnormal delay of over three years and consequently declined to admit the appeal because it is hopelessly time barred by over three years.
2. Learned Counsel for the respondents has raised a preliminary objection as regards the maintainability of this second appeal against the impugned order as, according to him, there has been no adjudication on merit of the appeal determining the rights of the parties to the matters in controversy and, as such, it is not a decree against which the second appeal lies under Section 100 of the Code of Civil Procedure. In support of this, learned Counsel for the respondents has placed reliance on a decision of the Apex Court in the case of Ratansing v. Vijaysing AIR 2001 S.C. 279.
3. Or the other hand, Mr. Jha, learned Senior Counsel appearing for the appellants, has contended that the second appeal against the impugned order is maintainable as the effect of dismissal of the appeal by the lower appellate Court amounts to confirmation of the judgment of the trial Court and thus passing of a decree. He submitted that the decision of the Apex Court in the case of Ratansing v. Vijaysing (Supra) is contrary to the view taken by the Constitution Bench of the Apex Court in the case of Sheodan Singh v. Daryao Kunwar . In support of his contention, he has also placed reliance on a catena of the Apex Court in the case of flam Gobinda v. Bhakta Bala , in the case of Raja Kulkarni v. State of Bombay AIR 1954 SC 73, in the case of Mela Ram & Sons v. I.T. Commr. and also on the Division Bench judgment of this Court in the case of Ravneshwar Thakur v. Neeraj Kumar Thakur 1996(1) PLJR 494.
4. On merits, learned Counsel for the appellants has contended that a bare perusal of the impugned order would show that the lower appellate Court has not at all considered the explanation/reason given for condonation of delay and, as such, the same is Fit to be set aside on this ground alone. In this regard he has referred to the decision of the Apex Court in the case of N. Balakhshnan v. M. Krishnamurthy .
5. In reply, learned Counsel appearing for the respondents has submitted that in none of the cases, referred to by Mr. Jha, learned Senior Counsel for the appellants, the Supreme Court has decided as to what will amount to passing of a decree. However, although in paragraph 13 of the judgment in the case of Ravneshwar Thakur v. Neeraj Kumar Thakur, (Supra), the Division Bench has noted that there is no decision of the Supreme Court directly on the point one way or the other, yet after taking notice of the decision of the Constitution Bench of the Apex Court in the case of Sheodan Singh v. Daryao Kunwar, (supra) has in paragraph 15 held that where the appeal is against a decision of the trial Court on merits, that is, where the trial Court has decided the dispute on merit or, in other words, 'determined the rights of the parties', such rejection would amount to 'decree' and be, therefore, appealable. According to the learned Counsel for the respondents, in view of the decision of the Apex Court in the case of Ratansing v. Vijaysing, (Supra), the law as to what decision of a Court shall become a decree stands settled and a bare reading of the impugned order would show that in view of the principle decided by the Apex Court, i t is not a decree against which second appeal is maintainable.
6. This Court finds substance in the said submission of the learned Co unsel for the respondents. In the matter before the Constitution Bench of the Apex Court in the case of Sheodan Singh v. Daryao Kunwar, (Supra) as well as in the case of Ram Gobinda v. Bhakta Bala, (Supra), the question for consideration was as to what will be the effect of the dismissal on technical ground which is barred by limitation etc. for constituting res judicata and not as to whether it will amount to passing a decree.
7. In the case of Mela Ram & Sons v. I.T. Commr, (Supra) also the Supreme Court was dealing with the question as to whether against such an order, appeal under special statute can be preferred not similar to the one as provided in Section 100 of the C.P.C. Section 100 of the C.P.C. clearly provides that "Save as 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 (underlining is mine) passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub-section (2) also provides that an appeal may lie under this section from an appellate decree (underlining is mine) passed ex parte.
8. Thus, under Section 100 of the C.P.C. the only relevant consideraton is that there should be a decree of the lower appellate Court and not to have any thing to do with the effect of such an order to maintain second appeal.
9. The question as to what decision of a Court shall become a decree has been considered by the Apex Court in the case of Ratansing v. Vijaysing, (Supra) and the Apex Court on appreciating contrary view of different High Courts in paragraph 11 of the said decision has specifically held as follows:
(11) In order that decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversv in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point Dealing with some of those decisions a Full Bench of the Calcutta High Court (S.P. Mitra, CJ, Sabyasachi Mukherjee, J. (as he then was) and S.K. Datta, J. has held in Mamuda Khateen v. Beniyan Bibi that "if the application under Section 5 of the Limitation Act was rejected the resultant order cannot be decree and the order rejecting the memorandum of appeal is merely an incidental order." The reasoning of the Full Bench was that when an appeal is barred by limitation the appeal cannot be admitted at all until the application under Section 5 of the Limitation Act is allowed and until then the appeal petition, even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law.
10. In view of the law laid down by the Apex Court, in my opinion, it has rightly been submitted by the learned Counsel for the respondents that the present second appeal against the impugned order is not maintainable.
11. In view of the fact that this second appeal has not been held to be maintainable, this Court does not consider it proper to examine the contention advanced on merit by the learned Counsel for the appellants.
12. This second appeal is, thus, dismissed being not maintainable.