Orissa High Court
Sri D Tarini Patro And Others vs M Jagannath Rao on 17 July, 2017
Equivalent citations: AIR 2018 ORISSA 53
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P. No.775 of 2017
In the matter of an application under Article 227 of the Constitution of
India.
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Sri D. Tarini Patro .... Petitioners
& others
Versus
M.Jagannath Rao .... Opp. Party
For Petitioners ... Mr. R.L. Pradhan, Advocate
For Opposite party ... None
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing : 17.07.2017 : Date of judgment : 17.07.2017
Dr. A.K.Rath, J This petition challenges the order dated 17.04.2017 passed by the learned District Judge, Ganjam, Berhampur in CMA No.41 of 2016 arising out of RFA No.99 of 2016, whereby and whereunder the learned appellate court dismissed the application under Section 5 of the Limitation Act for condonation of delay.
2. Opposite parties, as plaintiffs filed C.S. No. 89 of 2014 in the court of the learned Civil Judge (Junior Division), Berhampur impleading the petitioners as defendants. The suit was decreed. Assailing the judgment and decree of the learned trial court, the defendants-petitioners, filed R.F.A. No.99 of 2016 in the court of learned District Judge, Ganjam, Berhampur. Since there was delay 2 in filing the appeal, an application under Section 5 of the Limitation Act was filed. By order dated 17.04.2017, learned District Judge, Ganjam, Berhampur rejected the application for condonation of delay.
3. The sole question that hinges for consideration of this Court is as to whether the order dated 17.04.2017 is a decree ?
4. The subject-matter of dispute is no more res integra. In the case of Fakir Mishra v. Biswanath Mishra & others, 2015 (II) CLR-599, this Court held as follows:-
"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 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.3
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."
5. In view of the authoritative pronouncement of this Court in the case of Fakir Mishra (supra), the inescapable conclusion is that impugned order is a decree. It is open to the petitioners to challenge the same in a Second Appeal. Accordingly, the petition is dismissed.
The certified copy of the impugned order shall be returned to the counsel for the petitioners by substituting the photostat copy thereof.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 17th July, 2017/Puspanjali