Bombay High Court
Deepak Jalbaji Waghmare vs Santosh Bhawanarao Jondhale on 30 June, 2023
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
1 sa 24.2023+
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
901 SECOND APPEAL NO.24 OF 2023
WITH
CA/758/2023 IN SA/24/2023
WITH
CA/759/2023 IN SA/24/2023
1. Devidas Ganpati Kale (died)
Through his L.Rs.
1-A. Bhagwan Devidas Kale,
Age: 50 years, Occ.: Agri.,
1-B Vishnu Devidas Kale,
Age: 46 years, Occ.: Agri.,
1-C Shridhar Devidas Kale,
Age: 40 years, Occ.: Agriculture,
1-D Satyabhama Devidas Kale,
Age: 73 years, Occ.: Household,
All R/O: Shahapur, Tal. Tuljapur,
Dist. Osmanabad
Now R/o: Plot No.8-A, Balshetti Nagar,
Shelgi, At Solapur
1-E Jayshree Bhimashankar Sakpale,
Age: 48 years, Occ.: Household,
R/o.: C-57, Shrishail Nagar, Bhawani Peth,
Solapur, Tal. Solapur, Dist. Solapur
2. Vishnu Devidas Kale,
Age: 46 years, Occ.: Business,
R/o.: Now R/o : Plot No.8-A, Balshetti Nagar,
Shelgi, At Solapur .. Appellants
(Ori. Defendants)
Versus
. Sow. Munirbi Mahebub Karanje,
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Age: 50 years, Occ.: Agri.,
R/o: Khori Galli, Ambejogai Road,
Latur, Tal. and Dist. Latur .. Respondent
(Ori. Plaintiff)
...
AND
...
902 SECOND APPEAL NO.102 OF 2012
WITH CA/8752/2022 IN SA/102/2012 WITH CA/9693/2014
IN SA/102/2012 WITH CA/9691/2014 IN SA/102/2012
WITH CA/1557/2012 IN SA/102/2012
. Shriram s/o Shripatrao Solunke,
Age: 57 years, Occ: Agril.,
R/o Malegaon (J), Tq. Nilanga,
Dist. Latur .. Appellant
(Ori. Defendant)
Versus
. Chandrashekhar s/o Jaipal Sabnis
(Patil), Age- 45 years,
Occu. Advocate, R/o. Shivajinagar,
Nilanga, Tq. Nilanga,
Dist. Latur .. Respondent
(Ori. Plaintiff)
...
903 SECOND APPEAL NO.12 OF 2012
WITH
CA/53/2012 IN SA/12/2012
1. Uttreshwar s/o Arjun Gholave
Age: 38 years, Occu. Agri,
R/O. Pawarwadi
Tq.& Dist.: Osmanabd
2. Gayabai w/o Arjun Gholave,
Age: 70 years, Occu.Agri.,
R/o. as above
3. Kondabai w/o Gajendra Mundhe,
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Age: 44 years, Occu.: Household,
R/o. as above
4. Jayshree w/o Madhukar Ghughe,
Age: 42 years, Occu. Household,
R/o. Andoor, Tq. Tuljapur,
Dist. Osmanabad .. Appellant
(Ori. Defendant)
Versus
1. Laxman s/o Damodhar Metkar,
Age: 38 years, Occu. Agri.,
R/o. Pawarwadi, Ta&Dist. Osmanabad
2. Gangabai W/o Pandurang Tapde,
Age: 60 years, Occu.: Household,
R/o. Ter, Tq.& Dist. Osmanabad
3. Bhagirath s/o Pandurang Tapde,
Age: 40 years, Occu.: Business,
R/o. Ter, Ta&Dist. Osmanabad
4. Rajashree w/o Ravindra Jaju,
Age: Major, Occu.: Household,
R/o. Satara Moti Chowk, Ashish Dress,
Satara
5. Kishan s/o Pandurang Tapde,
Age: 42 years, Occu. Business,
R/o. Ter, Ta&Dist. Osmanabad .. Respondents
(RES.No.1 is orig. Plaintiff & 2 to 5 Ori. Defendant)
...
AND
...
904 SECOND APPEAL NO.289 OF 2012
WITH
CA/5916/2012 IN SA/289/2012
. Subrav Bhimrao Kolekar,
Age-48 years, Occu.: Agril.,
R/o.Kolekarwadi, Post: Bukanwadi,
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Tq. & Dist. Osmanabad .. APPLICANT
[Orig. Defendant]
Versus
. Sou. Janabai w/o. Subrav Kolekar,
Age-43 years, Occu.: Household,
R/o. Near Dnyaneshwar Temple,
Osmanabad,
Tq. & Dist. Osmanabad .. Respondent
(Ori. Plaintiff)
...
AND
...
905 SECOND APPEAL NO.253 OF 2017
WITH
CA/4363/2017 IN SA/253/2017
. Kantilal Anant Jaunjal,
Age: 58 years, Occu.: Agriculture,
R/o.: Golegaon Road, State Bank Colony,
House No.1062, At post Shirur,
Taluka Shirur,
District Pune at present R/o Baburdi
Shirkhe, Post. Wadgaon, Tq. Shrigonda,
Dist. Ahmednagar .. Appellant
(Ori. Defendant No.2)
Versus
1. Ashok Anant Jaunjal,
Age: 46 years, Occu.: Agriculture,
R/o.: House No.278, Dattawdi,
Pune
2. Kalabai Anant Jaunjal (Dead)
Age: 82 years, Occu.: Household,
R/o.: Sidhatek Vadarwadi,
Taluka Karjat, District Ahmednagar
3. Sau. Leelabai Dagadu Gaikwad,
Age: 60 years, Occu.: Household,
R/o.: House No.278, Dattawadi,
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Pune
4. Sau. Parigha Shyamrao Chalwadi,
Age: 66 years, Occu.: Household,
R/o. House No.278, Dattawadi,
Pune
5. Sau. Kasum Ramling Kapure,
Age: 50 years, Occu.: Household,
R/o.: Sutarwadi, Shivram Sutar Chawl,
Pashan, Pune
6. Sangeeta Ajay Chandarkhede,
Age: 36 years, Occu.: Household,
R/o.: Flat No.B-5/1, Saudamini Society,
Bhusari Colony, Kothrud,
Pune
7. Mangal Pramod Nirbhavane,
Age: 42 years, Occu.: Service,
R/o.: Flat No.A-2/4,
Kumar Samrudhi Tingre Nagar,
Pune
8. Sunita Rajendra Bhalerao,
Age: 40 years, Occu.: Service,
R/o.: Flat No.11, D. S. Gokul Building,
Gokulnagar, Dhanori Road,
Pune
9. Sau. Shantabai Anant Jaunjal,
Age: 66 years, Occu.: Household,
R/o. House No.278, Dattawadi,
Pune
10. Maya Anant Jaunjal,
Age: 42 years, Occu.: Household,
R/o. House No.278, Dattawadi,
Pune .. Respondents
(Ori. Plaintiffs & defendant No.2 to 10)
...
AND
...
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906 SECOND APPEAL NO.695 OF 2018
WITH
CA/10315/2018 IN SA/695/2018
1. Sanjay S/o Kondaji Dighe,
Age: 56 years, Occu.: Agril,
2. Dilip Patilba Dighe,
Age: 40 years, Occu.: Agril,
Both R/o Talegaon, Tq. Sangamner,
Dist. Ahmednagar .. Appellants
(Orig. Applicants)
Versus
1. Roshan S/o Yakuh Shaikh,
Age-66 years, Occu- Agril,
2. Noorjahan W/o Shamshuddin Syed,
Age: 64 years, Occu.: Agril,
Both R/o Kanadgaon, Tq. Rahuri,
Dist. Ahmednagar
3. Bashir S/o Bandubhai Shaikh,
Age: 47 years, Occu.: Agril,
4. Aminabee W/o Bandubhai Shaikh,
Age: 76 years, Occu.: Agril,
5. Gulab S/o Ganibhai Shaikh,
Age: 60 years, Occu. Agril,
6. Munnabee W/o Rasulbhai Shaikh,
Age: 39 years, Occu.: Agril,
7. Rasul S/o Dadabhai Shaikh,
Age: 44 years, Occu.: Agril,
8. Lalubhai S/o Ganibhai Shaikh,
Age: 56 years, Occu.: Agril,
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9. Dadabhai S/o Papabhai Shaikh,
(Deceased)
Respondent No.3 to 9
R/o Talegaon, Tq. Sangamner,
Dist. Ahmednagar .. Respondents
(Orig. plaintiff i.e. Respondent No.1 & 2 &
Orig. Defendants i.e. Respondent No.3 to 9)
...
WITH
...
SECOND APPEAL NO.705 OF 2018
WITH
CA/10379/2018 IN SA/705/2018
1. Gulab S/o Ganibhai Shaikh,
Age: 60 years, Occu.: Agril
2. Lalubhai S/o Ganibhai Shaikh,
Age: Major years, Occu.: Agril,
Both R/o Talegaon, Tq. Sangamner,
Dist. Ahmednagar .. Appellant
(Orig. Def. No.3&8)
Versus
1. Roshan S/o Yakub Shaikh,
Age-62 years, Occu- Agri,
2. Noorjaan W/o Shamshoddin Syed,
Age: 60 years, Occu.: Agri,
Both R/o Kanadgaon, Tq. Rahuri,
Dist. Ahmednagar
3. Bashir Bahubhai Shaikh,
Age: 43 years, Occu.: Agri,
4. Aminabi W/o Bandubhai Shaikh,
Age: 72 years, Occu.: Agri,
5. Munnabi Rasulbhai Shaikh,
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Age: 35 years, Occ.: Agri,
6. Rasul Dadabhai Shaikh,
Age: 40 years, Occu.: Agri,
7. Dadabhai Papabhai Shaikh,
(Since deceased through LR's)
8. Sanjay Kondaji Dighe,
Age: 52 years, Occu.: Agri.,
9. Dilip Patilba Dighe,
Age: 36 years, Occu.: Agri,
All 3 to 9 R/o Talegaon,
Tq. Sangamner, Dist. Ahmednagar
.. Respondents
(Orig. plaintiff No.1 & 2)
...
AND
...
907 SECOND APPEAL NO.60 OF 2020
WITH
CA/1634/2020 IN SA/60/2020
1. Vishnu S/o Bhimrao Ghavle,
Age: 63 years, Occu.: Agril,
R/o Mhada Colony, Railway
Station Road, Jalna
At present Adas, Tq. Kaij,
Dist. Beed
2. Mahadeo S/o Bhimrao Ghavle,
Age: 56 years, Occu.: Agril.,
R/o Shri Nagar Colony,
Ambajogai, Tq. Ambajogai,
Dist. Beed
3. Bharat S/o Bhimrao Ghavle,
Age: 53 years, Occu.: Agril.,
R/o Prashant Nagar, Netaji
School, Ambajogai,
Tq. Ambajogai, Dist. Beed
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4. Ganesh S/o Vishnu Ghavle,
Age: 31 years, Occu.: Education
& Agril.,
R/o Adas, Tq. Kaij,
Dist. Beed
5. Umesh S/o Mahadev Ghavle,
Age: 30 years, Occu.: Education & Agril.,
R/o. Mhada Colony,
Railway Station Road, Jalna,
At present Ambajogai,
Tq. Ambajogai, Dist. Beed
6. Onkar S/o Mahadev Ghavle,
Age: 27 years, Occu.: Education & Agril.,
R/o. Mhada Colony, Railway
Station Road, Jalna
At present Ambajogai,
Tq. Ambajogai, Dist. Beed
7. Nilesh S/o Bharat Ghavle,
Age: 29 years, Occu.: Education & Agril.,
R/o. Maturchhaya Bunglow,
Prashant Nagar, Behind Jahangir
Furniture, Ambajogai,
Tq. Ambajogai, Dist. Beed .. Appellants
(Ori. Defendants)
Versus
1. Chandrakala W/o Murlidhar Kamble,
Age: 61 years, Occu.: Household,
R/o.: Siddheshwar Galli, Baramati,
Tq. Baramati, Dist. Pune
2. Premala W/o Anil Dharmadhikari,
Age: 44 years, Occu.: Household,
R/o Khandoba Nagar, Baramati,
Tq. Baramati, Dist. Pune
3. Rajshri W/o Dilip Rulsamudra,
Age: 40 years, Occu.: Household,
R/o Jamkhed, Tq. Jamkhed,
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Dist. Ahmednagar .. Respondents
(Ori. Plaintiffs)
...
AND
...
908 SECOND APPEAL NO.497 OF 2021
WITH
CA/2702/2019 IN SA/497/2021
. Dinkar Gangadhar Darandale .. Appellant
(Original Plaintiff)
Since deceased, per L.Rs.
1. Santosh Dinkar Darandale,
Age: 46 years, Occ. Service,
R/o.Sonai, Taluka: Newasa,
District: Ahmednagar
2. Shubhangi Ajit Kakade,
Age: 44 years, Occu.: Household,
R/o. Row House No.28, Datta Meher Park,
Behind HP Petrol Pump,
Sawangi, Aurangabad
3. Pritam Ravindra Chaudhary,
Age: 42 years, Occu.: Household,
R/o.: Wakadi Road, Jalgaon,
Taluka and District Jalgaon
At present Changdeonagar, Rahata,
Taluka Rahata, District: Ahmednagar
4. Sonali Nitin Wamane,
Age: 37 years, Occcu.: Household,
R/o.: Flat No. C-401, Gagangiri Dremland
Behind PCMC School, Kaspate Vasti,
Pune .. Appellants
Versus
1. Eknath Gangadhar Darandale,
Age: 62 years, Occu.: Agriculture,
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R/o: Sonai, Taluka Newasa,
District Ahmednagar
2. Prabhakar Gangadhar Darandale,
Age: 56 years, Occu.: Agriculture,
R/o.: As above
3. Yamunabai Gangadhar Darandale
(Deceased through legal heirs i.e.
Appellant and Respondent No.1,2,4 to 6)
4. Dhanashri Narhari Kakade,
Age: 64 years, Occu.: Household,
R/o.: Shreyanagar, Osmanpura,
Aurangabad
5. Sunanda Shivajirao Bhosale,
Age: 52 years, Occu: Household,
R/o: Ashwi, Taluka Sangamner,
District Ahmednagar
6. Sunita Popatrao Patare,
Age: 50 years, Occu.: Household,
R/o.: Taklibhan, Taluka Shrirampur,
District Ahmednagar
7. Tarabai Dinkar Darandale,
Age: 68 years, Occu.: Household,
R/o.: Sonai, Taluka Newasa,
District Ahmednagar .. Respondents
(Original Defendants)
...
AND
...
909 SECOND APPEAL NO.413 OF 2022
WITH
CA/14501/2022 IN SA/413/2022
1. Kalpanabai w/o Uttamrao Dadhale,
Age: 48 years, Occu.: Agriculture,
2. Kaveri d/o Uttamrao Dadhale,
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Age: 33 years, Occu.: Agriculture,
3. Chandu s/o Uttamrao Dadhale,
Age: 31 years, Occu.: Agriculture,
4. Nagorao s/o Uttamrao Dadhale,
Age: 29 years, Occu.: Agriculture,
All R/o.: Jawala (Khu), Tq. Basmatnagar,
Dist. Hingoli .. Appellants
(Ori. Def. No. 1 & 4)
Versus
. Vyankati s/o Marotrao Dadhale,
Age: 59 years, Occu.: Agriculture,
R/o. Jawala (Khu), Tq. Basmatnagar,
Dist. Hingoli .. Respondent
(Ori. Plaintiff)
...
AND
...
910 SECOND APPEAL NO.568 OF 2022
1. Sadashiv S/o Vishwanath Chondikar,
Age-82 years, Occu. Agri,
R/o Chondi, Tq. Mukhed, Dist. Nanded
2. Manojkumar S/o Sadashivrao Chondikar,
Age-47 years, occu. Service,
R/o Chondi, Tq. Mukhed, Dist. Nanded
3. Shivaji S/o Irba Kahalekar,
Age- 47 years, Occu. Agri,
R/o Manjram, Tq. Naigaon,
Dist. Nanded
4. Anjanabai W/o Shankarrao Majre,
Age-67 years, Occu. Household,
R/o Sharda Nagar, Degloor,
Tq. Degloor, Dist. Nanded
5. Sanganbai W/o Vitthalrao Patil
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Age-66 years, Occu. Household,
R/o Vannali, Tq. Degloor,
Dist. Nanded
.. Appellants
(Orig. Defendants)
Versus
1. Gangadhar S/o Vishwanath Chondikar (Kharge),
Age: 79 years, Occu.: Agri,
R/o Bapunagari Housing Society, Degloor,
At present R/o Jukkal Mandal, Dist. Kamareddi
(Telangana State)
2. Venkatrao S/o Vishwanath Chondikar,
Age: 74 years, Occu.: Agri,
R/o. Chondi, Tq. Mukhed,
Dist. Nanded .. Respondents
(Orig. Plaintiffs)
...
AND
...
911 SECOND APPEAL NO.642 OF 2022
WITH
CA/13287/2022 IN SA/642/2022
1. Shripati Rama Gambhire
died through Legal heirs
1-A) Hirkanbai W/o. Shripati Gambhire
died through Legal heirs
1-A-1) Balaji S/o. Shripati Gambhire,
Age:37 years, Occu: agri,
1-A-2) Dnyanoba S/o. Shripati Gambhire,
Age: 28 years, Occu: Agri,
All R/o. Kawa Road, Gumasta Society,
Latur, Tq. and Dist. Latur
2) Bapurao Rama Gambhire
died through Legal heirs
2/1) Sarjabai W/o. Bapurao Gambhire,
Age: 60 years, Occu: Household,
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2/2) Dagdu S/o. Bapurao Gambhire,
Age:40 years, Occu: Agri,
2/3) Tukaram S/o Bapurao Gambhire,
Age: 40 years, occu: Agri,
All R/o. Sikandarpur, Latur,
Tq. and Dist. Latur
3) Shivdas S/o. Rama Gambhire,
died through Legal Heirs
3/1) Smt. Raubai W/o. Shivdas Gambhire,
Age: 75 years, Occu: Household,
3/2) Tulshidas S/o. Shivdas Gambhire,
Age: 40 years, Occu: Agri,
3/3) Dattatray S/o. Shivdas Gambhire,
Age:540 years, Occu: Agri,
3/4) Dinkar S/o. Shivdas Gambhire,
Age: 37 years, Occu: Education & Agri,
All R/o. Sikandarpur, Latur,
Tq. and Dist. Latur .. Appellants
(Org. Def. Nos.5 to 7)
Versus
1) Vijaykumar S/o. Vishwanathappa Kapse,
Age: 63 years, Occu: Agri,
2) Kashinath S/o. Vishwanathappa Kapse,
Age: 59 years, Occu: Pensioner,
Both R/o. Lokhande Galli, Latur
3) The State of Maharashtra,
Through Dist. Collector, Latur
4) The Special Land Acquisition Officer,
Minor Irrigation Division,
Behind Bandkam Bhawan, Latur
5) The Executive Officer,
Minor Irrigation Division,
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Behind Bandkam Bhawan, Latur
6) The Chief Engineer,
Godawari Khore Marathwada
Patbandhare Vikas Mahamandal,
Adalat Road (Jalna Road),
Aurangabad, Dist. Aurangabad .. Respondents
(R.No.1&2 are Orig. Plaintiffs & R.Nos.3
to 6 are Ori. Deft Nos.1 to 4)
...
AND
...
912 SECOND APPEAL NO.872 OF 2022
WITH
CA/17346/2022 IN SA/872/2022
. Suryakant S/o. Malikarjun Katkar (Died)
Through its legal heirs...
1. Smt. Anuradha W/o. Suryakant Katkar,
Age- 52 years, Occ- Household,
2. Nita D/o. Suryakant Katkar,
Age- 32 Years, Occ- Household, R/o.
3. Reshma D/o. Suryakant Katkar,
Age- 28 years, Occ- Household,
R/o. As above
4. Priyanka D/o. Suryakant Katkar,
Age- 27 years, Occ- Household
5. Suraj S/o. Suryakant Katkar,
Age- 26 years, Occ- Education,
All R/o.
Near Water Tank, Georai Road,
Majalgaon, Tq. Majalgaon,
Dist. Beed .. Appellants
(Ori. Defendants No.2/1 to 2/5)
Versus
1. Chabdrakalabai W/o. Sureshrao Borgaonkar,
Age- 67 years, Occ- Household,
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R/o. Yusufwadgaon, Tq. Kaij, Dist. Beed
...(Original Plaintiff)
2. Bhimashankar S/o. Malikarjun Katkar,
Age- 77 years, Occ- Business,
R/o. Prop. Shri. Shailya Jwellers,
in front of Chunamai, Majalgaon,
Tq. Majalgaon, Dist. Beed
3. Ratnamala W/o. Bhimashankar Sakhre,
Age- 72 years, Occ- Household,
R/o- Kumbhar Vesh, Mangalwar Pet (East)
House No.225, Solapur, Tq.Dist. Solapur
4. Sau. Wanmala W/o. Trimbak Sontakke,
Age- 57 years, Occ- Household,
R/o- Plot No. A-1-304, near Shindewadi
Bridge, Wakad Pune 411 027 .. Respondents
(Ori. Defendant 1, 3 & 4)
...
AND
...
913 SECOND APPEAL NO.916 OF 2022
WITH
CA/3118/2023 IN SA/916/2022
. Deepak Jalbaji Waghmare,
Age: 62 years, Occ.: Nil,
R/o. Khadakmanjari, Tal. Loha,
Dist. Nanded
At present R/o. More Chowk,
Bajaj Nagar, Aurangabad .. Appellant
(Original Defendant)
Versus
. Santosh Bhagwanarao Jondhale
Age: 45 years, Occ.: Business
and Legal Practitioner,
R/o: House No. 7/3/20, Itwara,
Nanded .. Respondent
(Original Plaintiff)
...
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AND
...
914 SECOND APPEAL NO.5 OF 2023
WITH
CA/343/2023 IN SA/5/2023
. Janardhan S/o. Pandurang Shejwal,
Aged: 65 years, Occupation: Business,
Residing at Indian Oil Petrol Pump,
Ajanta Road, Tq. Phulambri,
District Aurangabad .. Appellant
(Original Defendant)
Versus
. Agricultural Produce Market Committee
Tq. Phulambri, District Aurangabad
through its Secretary,
Agricultural Produce Market Committee,
Tq. Phulambri, District Aurangabad
.. Respondent
(Original Plaintiff)
...
AND
...
915 SECOND APPEAL NO.74 OF 2023
WITH
CA/3209/2023 IN SA/74/2023
1. Venkat S/o. Sanganna Momale,
Age: 63 years, Occu: Agri,
2. Gaulanbai W/o. Venkat Momale,
Age: 55 years, Occu: Household,
3. Nishant S/o. Venkat Momale,
Age: 22 years, Occu: Education,
4. Anuja D/o. Venkat Momale,
Age: 25 years, Occu: Education,
R/o. Lohara, Tq. Udgir, Dist. Latur,
At present Karadkhel, Tq. Udgir,
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Dist. Latur .. Appellants
(Ori. Defts Nos.1, 3 to 5)
Versus
1. Vedant S/o. Venkat Momale,
Age: 28 years, Occu: Education,
R/o. Lohara, Tq. Udgir, Dist. Latur
2. Sulochana D/o. Venkat Momale
@ Sulochana W/o. Anil Momale,
Age: 33 years, Occu: Household,
R/o. Gudsur, Tq. Udgir, Dist. Latur
3. Sitabai W/o. Venkat Momale,
Age: 40 years, Occu: Household,
R/o. Lohara, Tq. Udgir, Dist. Latur
At present Karadkhel, Tq. Udgir,
Dist. Latur .. Respondents
(R.Nos.1&2 are Orig. Plaintiffs
& R.No.3 is Ori. Defendant No.2)
...
AND
...
916 SECOND APPEAL NO.301 OF 2023
WITH
CA/7182/2023 IN SA/301/2023
1. Larsen & Toubro Construction
Transportation Infrastructure
Independent Company
Through its project manager
Shri Sudarshan Maharana,
Age: Major, Occu: Service,
R/o. Ashti Phata Pathri,
Tq. Pathri, Dist. Parbhani
2. Larsen & Toubro Construction
Transportation Infrastructure
Independent Company
Through its security head
Saubhagya Chandan Chyau Patnaik
Age: 51 years, Occ. Service,
::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
19 sa 24.2023+
R/o. Ashti Phata Pathri,
Tq. Pathri, Dist. Parbhani
3. Larsen & Toubro Construction
Transportation Infrastructure
Independent Company
Through its construction engineer
Amol S/o Laxman Gawate, Age: 36 years,
Occ. Service, R/o. Ashti Phata Pathri,
Tq. Pathri, Dist. Parbhani .. Appellant
(Original Defendant no.2 to 4)
Versus
1. The State of Maharashtra
Through, District Collector,
Collector Office, Parbhani,
Tq. & Dist. Parbhani (Original defendant no.1)
2. Antikabai W/o Shivajirao Gaikwad,
Age: 41 years, Occ. Household,
R/o. Renapur, Tq. Pathri, Dist. Parbhani,
At present Gajanan Nagar, Parbhani
3. Arti D/o Shivaji Gaikwad,
Age: 17 years, Occ. Student minor,
U/g of real mother plaintiff No.1 Antikabai
4. Bajirao S/o Shivaji Gaikwad,
Age: 12 years, Occ. Student minor,
U/g of real mother plaintiff No.1
Antikabai R/o Renapur, Tq. Pathri,
Dist. Parbhani, At present Gajanan Nagar,
Parbhani
5. Dattatraya S/o Shivaji Gaikwad,
Age: 38 years, Occ. Agri,
R/o. Renapur, Tq. Pathri,
Dist. Parbhani
6. Sachin S/o Shivaji Gaikwad,
Age: 32 years, Occ. Agri,
R/o. Renapur, Tq. Pathri,
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20 sa 24.2023+
Dist. Parbhani (Original plaintiff No.1 to 5)
.. Defendants
...
AND
...
917 CIVIL APPLICATION NO.2235 OF 2023
IN
SAST/34339/2022
WITH
CA/2236/2023 IN SAST/34339/2022
. Shivaji s/o Bansi Rathod,
Age: 38 years, Occ: Service
and Agriculture, resident of
Harki Nimgaon, Taluka Majalgaon,
District Beed
At present r/o Shirsala,
Tq. Parali(V), District Beed .. Applicant
Versus
1. Manoj s/o Balabhau Jagtap,
Age: 42 years, Occ: Agriculture,
R/o Savargaon, Tq. Majalgaon,
District: Beed
2. Dattatraya s/o Nagorao Jagtap,
Age: 47 years, Occ: Agriculture,
R/o. Savargaon, Tq. Majalgaon,
District: Beed
3. Ramesh s/o Vitthalrao Pawar,
Age: 44 years, Occ: Agriculture,
R/o. Manurwadi, Tq. Majalgaon
District: Beed .. Orig. Plaintiffs
4. Bapurao s/o Govindrao Rathod,
Age: 72 years, Occ: Agriculture,
R/o. Harki Nimgaon, Taluka Majalgaon,
District Beed
5. Eknath s/o Anandrao Rathod,
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21 sa 24.2023+
Age 48 years, Occ: Agriculture,
R/o. Harki Nimgaon, Taluka Majalgaon,
District Beed .. Respondents
(Orig defendants)
...
Advocate for appellant in S.A.413/2022&872/2022:
Mr. Nitin Jagdale h/f. Mr. V. D. Salunke
Advocate for appellant in S.A.916/2022:
Mr. Ashutosh S. Kulkarni
Advocate for appellant in S.A.74/2023&642/2022:
Ms. P. G. Sontakke h/f. Mr. G. K. Sontakke
Advocate for appellant in S.A.705/2018:
Mr. R. L. Kute
Advocate for appellant in S.A.102/2012:
Mr. M. P. Tripathi
Advocate for appellant in S.A.24/2023:
Mr. Avinash Hande h/f. Mr. A. M. Gaikwad:
AGP for Respondent/State in S.A.642/2022&301/2023:
Ms. P. V. Diggikar
...
CORAM: MANGESH S. PATIL &
ARUN R. PEDNEKER, JJ.
Reserved on: 23.06.2023
Pronounced on: 30.06.2023
JUDGMENT (Per Arun R. Pedneker, J.):
1. Heard.
2. The present second appeals are referred to larger bench as per Rule 8 and 9 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, to decide the following question:-
"Whether an order rejecting an application for condonation of delay in ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 22 sa 24.2023+ filing an appeal under Section 96 of CPC, is a decree within the meaning of Section 2(2) of CPC, making it appealable under Section 100 of CPC ?"
3. The brief facts giving rise to this reference can be summarized as under:-
A] In all these matters, the judgments of the trial court have been challenged in the first appeal before the Appellate Court with applications for condonation of delay in filing first appeals. The applications for condonation of delay in filing the appeals are dismissed and consequently the first appeals are also not registered or stand dismissed without registration. The orders of the First Appellate Court dismissing the delay condonation applications and consequently the dismissal of the first appeals without registration are challenged in the present second appeals and the issue in all these matters is, whether a second ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 23 sa 24.2023+ appeal is maintainable against an order dismissing an application for condonation of delay in filing the first appeal. B] The reason for the reference is that there is a doubt expressed by the Hon'ble Single Judge (Gauri Godse, J.) with regard to the view taken by the earlier judgments of this court holding that the second appeal is maintainable against such an order. The doubt is expressed since the Hon'ble Single Judge was of the view that the order rejecting an application for condonation of delay in preferring appeal under Section 96 of the the Code of Civil Procedure, 1908 (CPC) is not a decree and that a second appeal would lie only against a decree passed by the first appellate court. The Hon'ble Single Judge has adverted to the various decisions of this court namely in the case of Chandrakant Somnath Melge Vs. Balasaheb Somnath Melge, 2017 (3) Mh.L.J. ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 24 sa 24.2023+ 668 and in the case of Radhika Sanjay Salunkhe Vs. Dada Vitthal Salunkhe and others, Second Appeal No.149 of 2017. The judgments of other High Courts were also cited before the learned Single Judge to submit that second appeal is maintainable, viz. in the case of Suresh Hadapad Vs. Jayashree Kore and another, 21.12.2020 in Regular Second Appeal No.200360 of 2017, at the High Court of Karnataka at Kalaburgi Bench and in case of Maniram Vs. Mst. Fuleshwar, 25.09.1995 in Second Appeal No.16 of 1987, at the High Court of Madhya Pradesh.
C] The learned Single Judge has also considered the judgments of the Hon'ble Supreme Court in Mela Ram and Sons Vs. Commissioner of Income Tax, Punjab, 1956 (1) Mh.L.J. 175, and in the case of Shyam Sunder Sarma Vs. Pannalal Jaiswal and others, 2005(4) Bom.C.R. 839. ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
25 sa 24.2023+ D] The learned Single Judge had appointed Mr. Shailesh S. Brahme (now Judge of this High Court) as an amicus curiae in the matter. It was submitted by the amicus curiae that the second appeal has a definite and restricted jurisdiction as set out in Section 100 of CPC and there is no room for reading into the text of Section 100 of CPC, other than what is provided. The appellate jurisdiction under Section 100 of CPC do not contemplate any jurisdiction for entertaining the order which is passed by the first appellate court, without touching to the merits referable to the pleadings, evidence and findings recorded by the trial court on merits of the case and it was submitted before the court that the substantial question of law is a condition precedent for entertaining second appeal and that there can be hardly any question of law in a case of ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 26 sa 24.2023+ rejection of an application for condonation of delay and appreciation of evidence is beyond the scope of Section 100 of CPC. An order passed rejecting an application for condonation of delay will be only on facts and, thus, the reasons for condonation of delay can be examined only on appreciation of facts as pleaded and documentary and oral evidence if any led by the parties. Thus, there is hardly any scope under Section 100 of CPC to examine the correctness of the order rejecting the application for condonation of delay. He submitted that the jurisdiction under Section 100 of CPC is meant for examining the substantive rights of the parties and that an order rejecting an application for condonation of delay is not a decree within the meaning of Section 2(2) of CPC. It was his contention that an application for condonation of delay only examines the ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 27 sa 24.2023+ subsequent facts, which had prevented the appellant from filing an appeal. Whereas, the appeal decides the issue in the suit on the basis of evidence produced before it. He, therefore, submitted that rejection of application for condonation of delay is neither a judgment nor a decree and, thus, an order rejecting an application for condonation of delay in filing an appeal under Section 96 of CPC does not deal with the controversy between the parties and does not adjudicate the substantive rights of the parties and, thus, no second appeal is maintainable under section 100 of CPC. E] The Hon'ble Single Judge after examining the judgments cited before her and section 2(2) of CPC held that the main controversy in appeal is the controversy in the suit from which the first appeal arises. The controversy in the application for condonation of delay ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 28 sa 24.2023+ would revolve only around existence of sufficient cause for condonation of delay and hence the order of rejecting the application for condonation of delay cannot be said to be a decree within the meaning of section 2(2) of CPC. The learned Single Judge examined the judgments of Mela Ram (supra) and Shyam Sunder Sarma (supra), and held that in the case before the Hon'ble Supreme Court there was no issue raised and decided as to whether a second appeal under Section 100 of CPC would be tenable against an order rejecting an application for condonation of delay in filing an appeal under section 96 of CPC.
F] The learned Single Judge further held that there is no decision of the Supreme Court taking a view that an order rejecting an application for condonation of delay in preferring an appeal under Section 96 of CPC is a decree in appeal ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 29 sa 24.2023+ and, therefore, second appeal under section 100 of CPC would be maintainable against an order rejecting an application for condonation of delay in filing appeal under section 96 of CPC.
G] The learned Single Judge has then adverted to the decisions of this court in the case of Chandrakant (supra) and Radhika (supra) wherein it is held that application for condonation of delay amounts to decision in appeal and hence second appeal would lie against the said order. However, the learned Single Judge, by referring to the above cases held that these decisions also do not consider whether the order passed for condonation of delay in filing the first appeal under Section 96 of CPC is a decree.
H] Thus, the learned Single Judge held that an appeal under Section 100 of CPC will not lie against an order ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 30 sa 24.2023+ rejecting an application for condonation of dealy in preferring appeal under Section 96 of CPC. The reason being that such an order is not a decree within the meaning of Section 2(2) of CPC or a decree passed in appeal. Thus, the learned Single Judge has disagreed with the earlier views taken by the learned Single Judges of this court and has referred these matters to the larger bench for consideration of the above issue.
4. For ready reference, relevant provisions of the Code of Civil Procedure, 1908 are quoted below:-
"SECTION 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 ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 31 sa 24.2023+ 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;
SECTION 96 Appeal from original decree.- (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 from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
32 sa 24.2023+ (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees. SECTION 100 Second appeal.-
(1) 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 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. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 33 sa 24.2023+ allowed to argue that the case does not involve such question:
Provided that nothing in this sub- section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
ORDER 41 RULE 3-A Application for condonation of delay.-
(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
34 sa 24.2023+ (3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.
Consideration:-
5. The issue as regards the effect of dismissal of application for condonation of delay in filing appeal before the appellate court and consequent dismissal of the appeal, has cropped up in different context before various High Courts and also the Hon'ble Supreme Court in large number of matters. Earliest matter which we can look up is in the case of Raja Kulkarni and others Vs. The State of Bombay [1954] SCR 384. In the case of Raja Kulkarni (supra) the Hon'ble Supreme Court held as under:-
"...Whether the appeal is valid or competent is a question entirely for the appellate court before whom the appeal is filed to determine, and this determination is possible only after the appeal is heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it is held to be ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
35 sa 24.2023+ barred by limitation or that it does not lie before that court or is concluded by a finding of fact under section 100 of the Civil Procedure Code. From the mere fact that, such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the court. Article 182(2) of the Indian Limitation Act prescribes three years period of limitation for the execution of a decree or order to run from the date of the final decree or order of the Appellate Court "when there has been an appeal." The Privy Council construed the latter phrase to mean that any application by a party to the appellate court to set aside or revise a decree or order of a court subordinate thereto is an "appeal" within the meaning of the above provision, even though it is irregular or incompetent, or the persons affected by the application to execute were not parties, or it did not imperil the whole decree or order. They refused to read into the words any qualification either as to the character of the appeal, or as to the parties to it. [Nagendra Nath Dey and Another v. Suresh Chandra Dey and Others, (1) 59 I.A. 283] We consider that the word "appeal" must be construed in its plain and natural sense without the insertion of any qualifying words such as are intended to be introduced by the contention raised before us..."
6. In the case of Mela Ram (supra) the Hon'ble Supreme Court relied upon the Judgment in the case of Raja Kulkarni (supra) and held that the order dismissing the application under section ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 36 sa 24.2023+ 5 of the Limitation Act to excuse the delay in presentation as the one passed in appeal within the meaning of section 100 of the CPC.
7. We now refer to the Judgment of the 4 Judge bench of Hon'ble Supreme Court relevant to the present Reference in the case of Sheodan Singh Vs. Daryao Kunwar, AIR 1966 SC 1332.
8. In Sheodan Singh's case, while answering the issue of res judicata, the Hon'ble Supreme Court dealt with the issue, whether an appeal if dismissed for the reason of delay or on the ground of improper valuation or failure to pay any additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits whether would be res judicata in a subsequent suit.
The Hon'ble Supreme Court while examining the above issue held that, in such a case, even if the order of the High Court itself may not be on ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 37 sa 24.2023+ the merits, the result of the of the High Court's decision is to confirm the decision on the issue of title which had been given on merits by the Civil Judge and thus in effect the High Court confirms the decree of the trial court on merits, whatever may be the reason for the dismissal of the appeals arising from the suits.
The Hon'ble Supreme Court has held that it is well settled that where a decree on merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res sub judice and it is the decree of the appeal Court which will then be res judicata. The court further held that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court itself amounts to the appeal being heard and finally decided on the ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 38 sa 24.2023+ merits whatever may be the ground for dismissal of the appeal.
The Hon'ble Supreme Court further held that when the appeal court dismisses the appeal even on the ground of limitation it is a decision on merits and confirmation of the judgment of the trial court on merits.
The Hon'ble Supreme Court in the case of Sheodan Singh (supra) has observed as under:-
"13. ..Reliance in this connection is placed on the well settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
39 sa 24.2023+ not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of suits Nos.77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos.77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merits, the result of the High Court's decision is to confirm the decision on the issue of the title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial Court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos.77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos.77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits No.77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 40 sa 24.2023+ court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial Court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial Court on the merits. It is well settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicta again becomes res sub judice and it is the decree of the appeal Court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming in toto the trial Court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial Court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot, therefore, accept the contention that even though the trial Court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 41 sa 24.2023+ with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal."
The principle that can be culled out from the above Judgment of the Hon'ble Supreme Court is that when an appellate court decides the appeal or dismisses an appeal on the preliminary point of limitation either by an independent application under Section 5 of the Limitation Act in filing the appeal or an application filed in the appeal for condonation of delay is dismissed, the dismissal amounts to decision on merits and confirmation of the judgment of the trial court on merits.
9. We now come to the Judgment of the 2 Judges bench of the Hon'ble Supreme Court in the case of Ratansingh v. Vijaysingh and others, AIR ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 42 sa 24.2023+ 2001 SC 279:: 2000 AIR SCW 4385. The question faced in the present reference was also faced by the Hon'ble Supreme Court. The issue arose because under the Limitation Act of 1963, Article 136 provides for 12 years for execution of any decree or order of any civil court and the limitation runs from the time the order becomes enforceable. The question that arose for consideration was the time from which the period would begin to run would be (1) the date of the decree or order, or (2) where there has been an appeal the date of the decree or order of the appellate Court, or the date of withdrawal of the appeal.
The Hon'ble Supreme Court held that normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified event. The expression "enforceable" has been used to cover such decrees or orders also which became enforceable subsequently.
::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
43 sa 24.2023+ It has further held that filing of an appeal would not affect the enforceabliity of the decree, unless the appellate court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower Court and it is the appellate Court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower court decree continues to be enforceable.
The Hon'ble Supreme Court, considered the definition of decree under Section 2(2) of CPC and, at paragraphs no.10 and 11, observed as under:-
"10. A decree is defined in Section 2(2) of the C.P.C. as under:
"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 Sec. 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.::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
44 sa 24.2023+ 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."
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 controversy 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, AIR 1976 Cal 415 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 ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 45 sa 24.2023+ 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. The 2 Judge bench of the Hon'ble Supreme Court held that a decision of the court to become a decree there must be adjudication in a suit determining the rights of the parties as regards the order in controversy in the suit and if those parameters are applied then rejection of an application for condonation of delay will not amount to decree. Consequently, the dismissal of an appeal as time barred was also not a decree.
The question referred by Hon'ble Single Judge was answered by the Hon'ble Supreme Court in clear terms in the case of Ratansingh (supra).
11. However, the law laid down in the Judgment of the Ratansingh (supra) came up for consideration in the subsequent case of Shyam Sunder Sarma (supra) before the three Judges Bench ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 46 sa 24.2023+ of the Hon'ble Supreme Court. The question was whether an appeal accompanied by an application for condonation of delay in filing the appeal was an appeal in the eye of law and an application for condonation of delay in filing an appeal is dismissed and consequently an appeal is dismissed as being time barred, is dismissal of an appeal.
12. The court considered the Judgment of Full Bench of the Kerala High Court in Thambi v. Mathew (1987) 2 KLT 848 (FB), so also, Sheodan Singh, Mela Ram, Raja Kulkarni etc. The three Judges bench of the Hon'ble Supreme Court specifically dealt with the case of Ratansigh (supra) rendered by the two Judges bench and held that the decision in Ratansigh did not notice the Judgment of Mela Ram and Sheodan Singh (supra) and that the view expressed by the two judges bench could not be accepted as laying down correct law on the question. It further held that the decision really conflicts with the ratio in the decisions in Mela Ram (supra), Sheodan Singh (supra) and another decision of the Hon'ble Supreme Court rendered by ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 47 sa 24.2023+ two learned Judges in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhury, (1982) 2 SCC 596.
13. In Shyam Sundar Sarma (supra), the Hon'ble Supreme Court observed as under:-
"12. Learned counsel placed reliance on the decision in Ratansing v. Vijaysingh, (2001) 1 SCC 469 rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal is time barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position obtaining under Article 182 of the limitation Act, 1908. But we must point out with respect that the decisions of this Court in Mela Ram and Sons, 1956 SCR 166 and Sheodan Singh, AIR 1966 SC 1332 were not brought to the notice of Their Lordships. The principle laid down by a three-Judge Bench of this Court in Mela Ram and Sons and that stated in Sheodan Singh was, thus, not noticed and the view expressed by the two-Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, Their Lordships have stated that they were 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 definition of a decree obtaining in the Code. Thereafter, noticing the decision of the Calcutta High Court above-referred to, Their ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 48 sa 24.2023+ Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey, (1932) 59 IA 283 was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decisions in Mela Ram and Sons and Sheodan Singh and another decision of this Court rendered by two learned Judges in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhury, (1982) 2 SCC 596. In Essar Constructions v. N. P. Rama Krishna Reddy, (2000) 6 SCC 94 brought to our notice, two other learned Judged of this Court left open the question. Hence, reliance placed on that decision is of no avail to the appellant.
13. In the contexxt of the Explanation to Order 9 Rule 13 of the Code, the question was squarely considered by this Court in Rani Choudhury case. The High Court, in our view, has rightly held that the decision of this case is directly covered by the that decision. Therein, the plaintiff, the wife, obtained an ex parte decree for divorce against the husband, the defendant. The husband preferred an appeal in the High Court against the decree and also made an application under Section 5 of the Limitation Act for condoning the delay in filing that appeal. The High Court dismissed the appeal as being time- barred. The husband, the defendant, then filed a petition under Order 9 Rule 13 of the Code for setting aside the ex parte ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 49 sa 24.2023+ decree along with an application under Section 5 of the Limitation Act. The trial court dismissed the application holding that no sufficient cause was made out for condoning the delay in filing the petition under Order 9 Rule 13 of the Code. The husband filed a civil miscellaneous appeal in the High Court challenging the said order of the trial court. The High Court took the view that the Explanation to Order 9 Rule 13 of the Code did not create a bar to the maintainability of the petition under that rule as the appeal against the ex parte decree had been dismissed not on merits but on the ground of limitation by not accepting the application for condonation of delay which meant that no appeal was preferred in the eye of the law. This view of the High Court was challenged in appeal before this Court. It was argued that the High Court has misunderstood the scope and ambit of the Explanation to Order 9 Rule 13 of the Code and that in the circumstances, the High Court should have held that the petition under Order 9 Rule 13 of the Code would not lie. This Court accepted that contention. This Court held that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and had been disposed of on any ground, the application under Order 9 Rule 13 of the Code would not lie and should not be entertained. Hence, even though the appeal against the ex parte decree was disposed of on the ground of limitation and not on merits, the Explanation to Order 9 Rule 13 of the Code was attracted and hence no petition under Order 9 Rule 13 of the Code would lie. On the scope of the Explanation, it was stated that the disposal of the appeal as contemplated in ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 50 sa 24.2023+ the Explanation was not intended to mean or imply a disposal on merits resulting in the merger of the decree of the trial court with a decree, if any, of the appellate court on the disposal of the appeal. The disposal of the appeal may be on any ground and though the withdrawal of an appeal by an appellant is also to be considered a disposal of the appeal, the same has been expressly exempted by the Explanation. It was also observed that the legislative intent incorporated in the Explanation to Order 9 Rule 13 of the Code was to confine the defendant to a single course of action and to discourage the prolonging of the litigation on the ex parte decree, namely, by preferring an application to the trial court under Order 9 Rule 13 of the Code for setting aside the decree and by filing an appeal to a superior court against it. If he did not withdraw the appeal filed by him or allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Order 9 Rule 13 of the Code. The Court also clarified that by the introduction of the Explanation, the area of operation of the doctrine of merger was enormously extended. By virtue of the Explanation, the disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the bar into operation. In the light of this, it was held that though in that case the appeal filed by the husband against the ex parte decree was dismissed on the ground of it being barred by limitation, it was a disposal of the appeal and the petition under Order 9 Rule 13 of the Code was hit by the Explanation. In P. Kiran Kumar v. A. S. Khadar, (2002) 5 SCC 161 this Court followed the decision in Rani Choudhury ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 ::: 51 sa 24.2023+ and held that the dismissal of the appeal against an ex parte decree as barred by limitation, prevented the trial court which passed the ex parte decree, from exercising its power under Order 9 Rule 13 of the Code in view of the Explanation."
14. The consistent principle laid down by the Hon'ble Supreme Court from Raja Kulkarni (supra) till Shyam Sudar Sarma (supra) has been that if, an application for condonation of delay in filing the appeal is dismissed, then, such a dismissal amounts to a judgment in appeal.
The Hon'ble Supreme Court has further held that the dismissal of an application for condonation of delay in filing the appeal amounts to the affirmation of the judgment of the trial court on merits. [Sheodan Singh (supra)] Thus, we hold that the order passed by the appellate court dismissing the application for condonation of delay in filing the appeal amounts to a decree of the appellate court, which is challengeable under Section 100 of CPC. ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
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15. The law laid down by the 2 judges bench of the Hon'ble Supreme Court in the case of Ratansingh (supra) that if an application for condonation of delay in filing the appeal is dismissed, the Judgment of the appellate court does not amount to decree is specifically negatived in Shyam Sudar Sarma (supra).
16. Thus, with utmost respect to the esteemed Single Judge, we hold that the issue referred to us is no more res integra as it has been pronounced by the Hon'ble Supreme Court that an order rejecting an application for condonation of delay in filing the appeal is the Judgment of the appellate court upholding the Judgment of the trial court on merits [Sheodan Singh (supra)]. The Hon'ble Supreme Court has reversed the law laid down in the case of Ratansingh (supra), that such an order does not amount to a decree within the meaning of Section 2(2) of the CPC [Shyam Sundar Sarma (supra)]. Thus, we hold that such an order / decree of the appellate court is appealable under Section 100 of CPC. ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::
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17. The Reference is answered accordingly. [ARUN R. PEDNEKER, J.] [MANGESH S. PATIL, J.] marathe ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:24:20 :::