Research › Search › Judgment

Gauhati High Court · body

2002 DIGILAW 296 (GAU)

Suren Baruah v. Bhogeswari Rajkhowa

2002-07-16

B.B.DEB

body2002
B.B. DEB, J- Heard the learned counsel appearing for the petitioners. 2. By this petition under Section 5 of the Limitation Act, the petitioners sought for condonation of delay in preferring the connected second appeal bearing No. RSA 28 of 2002. The appeal has been filed after 946 days delay on expiry, of the statutory period fixed for preferring the appeal. 3. The plaintiff respondents filed a Title Suit bearing No. T.S. 18 of 1988 before the learned Munsiff, Biswanath Chariali, Sonitpur against the defendant appellant herein. The suit was decreed by the learned trial Court. The defendant-appellant preferred first appeal bearing No. T. A. 18/ 1991 before the learned Assistant District Judge, Sonitpur, Tezpur which was allowed vide judgment dated 2.5.1992. Against the appellate order, the plaintiff-respondent preferred second appeal in S.A. 75 of 1992 before this Court. After hearing, this Court vide order dated 8.4.97 allowed the appeal, set aside the judgment of first appellate Court and remanded the case to the learned first appellate Court for fresh hearing and disposal. Thereafter, the learned first appellate Court vide judgment dated 18.6.1999 dismissed the appeal. Instead of preferring any second appeal the defendant-appellant filed a review petition in Misc. Case No. 40 of 1999 under Order 47 Rule 1 of the Civil Procedure Code before the learned Civil Judge (Senior Division), who after hearing the parties rejected the review petition vide judgment/ order dated 28.9.2001. Hence, this second appeal. 4. In view of Order 7 Rule 47 of the Civil Procedure Code, no appeal is maintainable against the order of rejection of a review petition and, as such, in order to bypass the statutory hurdle the appellant, instead of seeking any permissible redress against the order of rejection of review petition, preferred this second appeal against the judgment dated 18.6.1999 passed by the learned first appellate Court in Title Appeal No. 18/91. The judgment and decree of the learned first appellate Court dated 18.6.1999 undoubtedly stood merged with the judgment/order dated 28.9.2001 by which the review petition was rejected and, as such, there is no scope to segregate the judgment dated 18.6.1999 passed by the learned first appellate Court from its order dated 28.9.2001 rejecting the review petition in Misc. The judgment and decree of the learned first appellate Court dated 18.6.1999 undoubtedly stood merged with the judgment/order dated 28.9.2001 by which the review petition was rejected and, as such, there is no scope to segregate the judgment dated 18.6.1999 passed by the learned first appellate Court from its order dated 28.9.2001 rejecting the review petition in Misc. Case No. 40 of 1999 and, as such, in my considered opinion, while the review petition filed seeking review of the appellate order stands rejected, the party at whose instance review petition was filed ceased of his right to prefer appeal against the appellate order also. He may seek for revision of the order of rejection passed in the review petition. But, in the present case, instead of resorting the correct approach the appellant-petitioners preferred the second appeal against the appellate order passed by the learned first appellate Court which merged with the rejection of review prayer. In that view of the matter, the second appeal filed against the dismissal of appeal by the first appellate Court is not maintainable at all. 5. The inordinate delay of 946 days appears to be not explained convincingly, and as such, I am not inclined to invoke the discretionary power to condone the inordinate, un-explained delay of 946 days in preferring a non-maintainable appeal. On the aforesaid composite grounds the condonation petition stands rejected, of course, without any costs.