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Gobinda Malik vs Gopal Chandra Ghosh on 6 April, 2011
While thinking this issue in case of reverse situation namely when
application for condonation of delay is allowed obviously it cannot be an
appealable one as no decision is rendered either way on decree either in case of
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appeal or in case of proceeding under Order IX Rule 13 as doctrine of deemed
finality does not apply. It appears that views taken in the case of Md. Oli Sheikh
& ors. v. Tarani Mahato & anr. by the learned Single Judge of this Court runs
counter to our observation as above, hence it cannot be accepted to be correct
proposition of law. Legal proposition on this aspect enunciated by the learned
Single Judge in case of Sri Gobinda Malik v. Sri Gopal Chandra Ghosh
(C.O.No.808 of 2011) is in our view, correct. In view of the above discussion we
conclude as follows while deciding the reference:
Sheodan Singh vs Smt. Daryao Kunwar on 14 January, 1966
In the case of Sheodan Singh v. Daryao Kunwar reported in AIR 1966 SC
1332 four Judges Bench of the Supreme Court took the views as follows:-
Thambi vs Mathew And Anr. on 24 October, 1987
The plaintiff got an ex parte decree against the defendants. The first
defendant filed a petition for setting aside ex parte decree under Order IX Rule 13
of the Code accompanied by an application for condonation of delay under
Section 5 of the Limitation Act in filing that petition, and subsequently he also
filed an appeal against the ex parte decree itself again with an application for
condonation of delay in filing that appeal. The application for condonation of
delay in filing the appeal as well as the appeal itself were dismissed for default.
Thus the petition for setting aside the ex parte decree under Order 9 Rule 13 was
filed first, followed by appeal keeping the said application for setting aside of the
ex parte decree pending. But before the petition under Order IX Rule 13 of the
Code could be disposed of, the appeal had been dismissed for default as stated
above. On the dismissal of the appeal as above the earlier application for setting
aside the ex parte decree was pressed for hearing contending that no appeal
against the decree has been pending. Actually the appellant/defendant wanted to
get rid of the mischief of the explanation mentioned in Order IX Rule 13 of the
Code of Civil Procedure, as there has been no appeal because dismissal of the
appeal as above ought to be treated to have been withdrawn. This argument right
from the Learned Trial Judge, First Appellate Court upto the High Court was
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negatived holding that the dismissal of application for condonation of delay in
relation to appeal and consequently dismissal of appeal itself cannot be treated to
have been withdrawn but it is a decision on appeal itself. The Supreme Court in
that case has surveyed large number of decisions on this aspect right from Privy
Council in case of Nagandra Nath Dey (59 Indian Appeals 283), the decisions of
the Supreme Court in case of Raja Kulkarni 1954 SCR 384, M/s. Mela Ram and
sons (1995 SCR 166), in case of Sheodan Singh (AIR 1966 SC 1332), in case of
Board of Revenue [1973 (3) SCR 492] and then Full Bench decision of the Kerala
High Court in case of Thambi v. Mathew reported in [(1987) 2 KLT 848] and came
to the following legal conclusion which according to us is the ratio of the
decision:
Mamuda Khateen And Ors. vs Beniyan Bibi And Ors. on 12 August, 1976
While reading all the judgments quoted including that in Shyam Sundar
Sarma's case, and Full Bench of this Court in case of Mamuda Khateen v.
Beniyan Bibi, we think that the effect of dismissal of the application under
Section 5 of the Limitation Act would depend upon the nature of the proceeding
in connection to which it is filed.
The Limitation Act, 1963
Md. Oli Sheikh (Since Deceased) & Ors vs Tarani Mahato & Anr on 5 August, 2010
It is appropriate to note that the case of Md.
Oli Sheikh and others v. Tarani Mahato and another, was taken to the Hon'ble
Apex Court impugning the judgment and order passed thereon by the learned
Single Judge dated 5th August, 2010, but the Supreme Court has been pleased to
reject the SLP with one line order with the words "the Special Leave Petition is
dismissed".
Nagendra Nath Dey vs Suresh Chandra Dey on 21 April, 1932
384. Then came the Supreme Court decision in case of Messrs Mela Ram and
Sons -vs.- The Commissioner of Income Tax, Punjab reported in 1956 SCR 166
wherein it was ruled that an appeal presented out of time is an appeal and an
order dismissing it as time barred is one passed on an appeal. This legal
conclusion was drawn accepting above statement of law pronounced by the Privy
Council in Nagendra Nath Dey's case and following the decision of Supreme
Court in case of Raja Kulkarni's case (supra).
Ainthu Charan Parida vs Sitaram Jayanarayan Firm And Anr. on 10 August, 1984
They also placed judgment of Full Bench
of the Kerala High Court reported in (1987) 2 Kerala 848 in case of Thambi v.
Mathew and the judgment of the same strength of the Orissa High Court reported
in AIR 1984 Orissa page 230 in case of Ainthu Charan Parida v. Sitaram
Jayanarayan Firm and another reported in AIR 1984 Orissa page 230.