Orissa High Court
Fakira Mishra vs Biswanath Mishra And Others on 26 August, 2015
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
WP(C) No.9246 of 2008
In the matter of an application under Article 227 of the Constitution of
India.
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Fakira Mishra .... Petitioner
Versus
Biswanath Mishra & others .... Opp. Parties
For Petitioner ... Mr. Bikram Senapati, Advocate
For Opposite Parties ... Mr. N.P.Parija, Advocate
(For O.P. 1)
None appears
(For O.Ps.2 to 11)
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing : 18.08.2015 : Date of judgment : 26.08.2015
Dr. A.K.Rath, J The seminal question that hinges for consideration of
this Court is as to whether an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree ?
2. Opposite party no.1 as plaintiff filed a suit for partition, for a declaration that neither the will nor the order of mutation passed in favour of defendant no.1 has conferred any right on him and for permanent injunction restraining the defendants from interfering with his peaceful possession of the plaint schedule properties in the court learned Civil Judge (Junior Division), Puri, which was registered as Title Suit No.349/434-2001/95. The suit was decreed preliminarily. Assailing the judgment and decree, the 2 petitioner, who was defendant no.1, filed R.F.A. No.122 of 2006 in the court of learned District Judge, Puri. Since there was a delay in filing the appeal, an application under Section 5 of the Limitation Act was filed. By order dated 14.3.2008, learned District Judge, Puri dismissed the application for condonation of delay. Consequently the first appeal was dismissed. With this factual background, the instant petition has been filed under Article 227 of the Constitution of India to lacinate the said order.
3. A Full Bench of this Court, in the case of Ainthu Charan Parida v. Sitaram Jayanarayan Firm represented by Ramnibas and another, 58 (1984) CLT 248 (F.B), held that an order rejecting a memorandum of appeal or dismissing an appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure. But then, the apex Court, in the case of Shyam Sunder Sarma v. Pannalal Jaiswal and others, AIR 2005 SC 226, held that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.
4. In Shyam Sunder Sarma (supra), the view of the Full Bench of the Calcutta High Court, in the case of Mamuda Khateen and others v. Beniyan Bibi and others, AIR 1976 Calcutta 415, that an order rejecting a time barred memorandum of appeal consequent upon refusal to condone the delay in filing that appeal was neither a decree nor an appellable order, was held to be not laying down a correct law.
5. Further, the Full Bench decision of the Kerala High Court, in the case of Thambi v. Mathew, 1987 (2) KLT 848, that an appeal presented out of time was nevertheless an appeal in the eye of law for 3 all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal, was approved by the apex Court.
Be it noted that the aforesaid decision of the Calcutta High Court was approved by the Full Bench of the Orissa High Court in the case of Ainthu Charan Parida (supra).
6. In view of the authoritative pronouncement of the apex Court in the case of Shyam Sunder Sarma (supra), the Full Bench decision of this Court in the case of Ainthu Charan Parida (supra) has been impliedly overruled, the same being contrary to the enunciation of law laid down by the apex Court.
7. Thus the logical sequitur of the analysis made in the preceding paragraphs is that an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. In the ultimate analysis the petition fails, as the same is not maintainable.
Accordingly, the petition is dismissed.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
The 26th August, 2015/Pradeep