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2010 DIGILAW 365 (KER)

O. K. Leena v. State

2010-05-19

THOMAS P.JOSEPH

body2010
Judgment :- "C.R." When an application for condonation of delay is dismissed and consequently the appeal itself is rejected or dismissed, is it necessary to draw up a decree, is the question arising for a decision in this Writ Petition filed under Article 227 of the Constitution of India challenging that part of the order returning Ext.P3, application for copy of judgment and decree dated 09.02.2009 in A.S. No.113 of 2008 of the court of learned Additional Sub Judge, Thalassery for the reason that there is no separate decree. A.S. No.113 of 2009 was an appeal arising from judgment and decree in O.S. No.189 of 2007 of the court of learned Munsiff, Kannur filed by the petitioner seeking reliefs against the respondents-State represented by the District Collector and Deputy Superintendent of Police (Vigilance), Kannur. The suit ended in a dismissal. Aggrieved, petitioner filed A.S. No.113 of 2008 accompanied by I.A. No.3330 of 2008 for condonation of delay of 75 days. That application was dismissed by the learned Sub Judge as per Ext.P2, order dated 09.02.2009. Consequently the appeal also was dismissed. Petitioner filed Ext.P3, application for issue of certified copy of the judgment and decree. That application was returned for the reason that since appeal was not admitted following dismissal of I.A. No.3330 of 2008 for condonation of delay there is no separate judgment and decree on the appeal. Learned counsel for petitioner contends that following the dismissal of I.A. No.3330 of 2008 and consequent dismissal of A.S. No.113 of 2008 appellate court was bound to draw up a decree since dismissal of I.A. No.3330 of 2008 and the consequent dismissal of A.S. No.113 of 2008 has resulted in merger of the decree of the trial court with that of the appellate court. It is also the submission of the learned counsel that judgment and decree in A.S. No.113 of 2008 is subject to a Second Appeal to this Court under Section 100 of the Code of Civil Procedure (for short, "the Code"). I have heard the learned Government Pleader appearing for respondents as well. 2. When an appeal barred by limitation is presented accompanied by an application to condone the delay there is a proper presentation of the appeal though question of admission of appeal under Order XLI Rule 11 of the Code would arose only when application to condone the delay is allowed. 2. When an appeal barred by limitation is presented accompanied by an application to condone the delay there is a proper presentation of the appeal though question of admission of appeal under Order XLI Rule 11 of the Code would arose only when application to condone the delay is allowed. In this case vide Ext.P2, order dated 09.02.2009 the appellate court has dismissed I.A. No.3330 of 2008 to condone the delay in filing the appeal. Though on the docket of Ext.P3, application for issue of certified copy of judgment and decree it is endorsed that there is no separate judgment and decree as the appeal was not admitted, learned Sub Judge in his letter dated 05.04.2010 has stated that learned Sub Judge who disposed of I.A. No.3330 of 2008 has passed an order on the memorandum of appeal on 09.02.2009 which reads, "I.A.3330/08 to condone the delay in filing the appeal is dismissed. Hence this A.S., also dismissed." That amounts to a judgment on the appeal since it contains the reason for dismissal of the appeal. 3. Then the question is whether appellate court was bound to draw up a decree following the dismissal of the appeal. Though in Ratnasingh v. Vijaysingh (2001 [1] KLT 327) the Supreme Court took the view that when an application to condone the delay is dismissed and consequently the appeal is also dismissed it does not amount to a decree and has no effect on the decree passed by the lower court, a Bench of the Supreme Court consisting of three Judges in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 [1] KLT 198) after referring to the decision in Ratnasingh v. Vijaysingh (supra) has held, "....An appeal registered under R.9 of O.XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is 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." Reference was also made to the Full Bench decision of this Court in Thambi v. Mathew (1987 (2) KLT 848) where it was held 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 subject to a Second Appeal and that Order XLI Rule 3A of the Code did not in any way affect that principle. Dismissal of the appeal (as time barred) amounts to a confirmation of the decree challenged. This Court therefore has to follow the decision in Thambi v. Mathew and Shyam Sundar Sarma v. Pannalal Jaiswal (supra). It follows that when an appeal is dismissed or rejected following the dismissal of an application for condonation of delay, that dismissal is subject to a Second Appeal and hence it is necessary to draw up a decree consequent to the dismissal of the appeal as time barred. 4. In the letter dated 07.04.2010 learned Sub Judge has reported that there was no practice of drawing up a decree when an appeal is dismissed consequent to dismissal of an application to condone the delay. If there was no such practice, in my view it is wrong and needs correction. Whenever an appeal is dismissed or rejected consequent to dismissal of the application to condone delay, there must be a judgment dismissing or rejecting the appeal which has to be followed by a decree. Learned Sub Judge has reported that he has already given instructions to the staff concerned to prepare a decree. 5. In the circumstances stated above, appellate court was not justified in returning Ext.P3, application stating that no decree has been drawn. If no decree had been drawn up it has to be done and certified copy has to be issued to the petitioner as prayed for in Ext.P3, application. Writ Petition is allowed. The order returning Ext.P3, application for issue of certified copy of judgment and decree in A.S. No.113 of 2008 is set aside. If no decree had been drawn up it has to be done and certified copy has to be issued to the petitioner as prayed for in Ext.P3, application. Writ Petition is allowed. The order returning Ext.P3, application for issue of certified copy of judgment and decree in A.S. No.113 of 2008 is set aside. Petitioner shall within a week from this day re-present Ext.P3, application before the court concerned and on such presentation it shall relate back to the date of its original presentation. Learned Sub Judge shall issue certified copy of the judgment and decree as prayed for on usual terms.