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2020 DIGILAW 542 (UTT)

BHAGWATI PANDEY v. VIMLA SANGUDI

2020-12-07

SUDHANSHU DHULIA

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JUDGMENT Hon'ble Sudhanshu Dhulia, J. (Oral) This case has been heard through video conferencing. 2. This writ petition has been filed by the petitioners, who were defendants in a partition suit filed way back in the year 2001. The suit was decreed by the learned Civil Judge (Sr. Division), Nainital vide judgment dated 20.09.2007, whereby 1/3rd share of the urban property was given to each of the brothers. The preliminary decree was prepared on 20.09.2007 and a final decree was prepared on 01.10.2013. The sisters got nothing in that partition suit and hence present petitioners, who are sisters, filed a First Appeal before the first appellate court. 3. The appeal was belated and was filed along with a delay condonation application. The delay condonation application, however, was rejected by the first appellate court vide order dated 14.03.2019 on ground of maintainability. Against the order dated 14.03.2019, the petitioners have filed the present writ petition. 4. A preliminary objection has been raised by the learned Counsel for the respondents that writ petition in this case is not maintainable and the proper remedy for the petitioners is to file a second appeal. 5. The legal position which emerges in this case is indeed that when an order of trial court is challenged in appeal, where the appeal itself is time barred and is rejected on grounds of limitation, the order would still be a decree and against that a Second Appeal would lie under Section 100 of Code of Civil Procedure. Earlier different High Courts had given conflicting opinions on this question and we would refer to some of these rulings. 6. This view has been expressed by a Full Bench judgment of Kerala High Court in the case of Thambi v. Mathew and another reported in AIR 1988 Kerala 48. This was also the view expressed by the Hon'ble Apex Court in the case of Shyam Sunder Sarma v. Pannalal Jaiswal and others reported in AIR 2005 SC 226 . This Court has also been apprised that the same view has been expressed by this Court as well in two of its decisions i.e. Naveen Goswami v. Smt. Kamla Goswami reported in 2017 (2) U.D., 124 and Smt. Jagdamba v. Prem Chand Jain reported in 2017 (2) U.D., 137. 7. This Court has also been apprised that the same view has been expressed by this Court as well in two of its decisions i.e. Naveen Goswami v. Smt. Kamla Goswami reported in 2017 (2) U.D., 124 and Smt. Jagdamba v. Prem Chand Jain reported in 2017 (2) U.D., 137. 7. In view thereof, the writ petition is not maintainable and is hereby dismissed, with liberty to the petitioners to file a second appeal under Section 100 of Code of Civil Procedure in accordance with law.