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Appeal filed along with application for condonation of delay when dismissed is a decree within Section 2(2) CPC

HIGH COURT OF ORISSA: CUTTACK

CMP No.974 of 2018

In the matter of an application under Article 227 of the Constitution of India.

Jitendra Naik …. Petitioner

Versus

Radhyashyam Naik & others …. Opp. Parties

For Petitioner … Mr. Prasanna Ku. Parhi, Adv.

PRESENT:

THE HONOURABLE DR. JUSTICE A.K.RATH

Date of hearing : 10.12.2018 : Date of judgment : 10.12.2018

Dr. A.K.Rath, J This petition challenges the order dated 24.11.2017
passed by the learned Addl. District Judge, Karanjia in I.A No.3 of 2017 whereby and whereunder the learned appellate court dismissed the application under Sec. 5 of the Limitation Act for condonation of delay in filing RFA No.04 of 2016.

2. Plaintiffs-opposite parties 1 to 11 instituted C.S No.165 of 2009 for partition in the court of the learned Senior Civil Judge, Karanjia impleading petitioner and opposite parties 12 to 16 as defendants. The suit was decreed preliminarily. Aggrieved by the judgment and decree, the petitioner, who was defendant no.2 in the suit, filed RFA No.04 of 2016 before the learned District Judge, Mayurbhanj, Baripada. Since there was a delay in filing the appeal, an application being I.A No.03 of 2017 under Sec. 5 of the Limitation Act for condonation of delay was filed. The appeal was transferred to the court of learned Addl. District Judge, Karanjia. Learned appellate court dismissed the application for condonation of delay. Consequently the appeal was dismissed.

3. Mr. Parhi, learned counsel for the petitioner submits that the petitioner was prevented by sufficient cause in not filing the appeal on time. He filed an application under Sec. 5 of the Limitation Act for condonation of delay in filing the appeal. But then, learned appellate court dismissed the same on an untenable and unsupportable ground.

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4. The seminal question that hinges for consideration of this Court is that an order rejecting a memorandum of appeal or dismissing an appeal following rejection of an application under Sec.5 of the Limitation Act for condonation of delay in preferring the appeal is a decree or order ?

5. The subject-matter of dispute is no more res integra. An identical matter came up for consideration before this Court in the case of Fakira 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. 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.”
6. In view of the authoritative pronouncement of this Court in the case of Fakira Mishra (supra), the petition under Article 227 of the Constitution is not maintainable. It is open to the petitioner to file the second appeal.

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7. Certified copy of the impugned order be returned to the learned counsel for the petitioner by substituting the photostat copy thereof.

DR. A.K.RATH,
Orissa High Court, Cuttack.

Dated 10th December, 2018

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