Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 149 (ORI)

Jagabandhu Samal v. Rabi Samal

2017-02-07

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 9.8.2016 passed by the learned Addl. District Judge, Jagatsinghpur in RFA No.51 of 2014 whereby the learned appellate court dismissed the appeal on limitation. 2. Gandharba Samal, father of the opposite parties 1 to 5, as plaintiff filed T.S. No.12 of 1985 in the court of learned Civil Judge (Junior Division), Jagatsinghpur for partition. The suit was decreed ex parte. Assailing the judgment and decree, the petitioner, who was defendant no.10, filed R.F.A. No.51 of 2011 in the court of learned Additional District Judge, Jagatsinghpur. Since there was delay in filing the appeal, an application under Section 5 of the Limitation Act was filed. By order dated 9.8.2016, learned Additional District Judge, Jagatsinghpur dismissed the application for condonation of delay. Consequently the first appeal was dismissed. 3. The seminal question that hinges for consideration of this Court is as to whether 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 ? 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. 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. 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 petition is not maintainable. Accordingly, the petition is dismissed. It is open to the petitioner to file an appeal.