KESRI BAI Vs. SUBHASHINI

JUDGEMENT

(1.) This second appeal preferred by the appellant/defendant under Section 100 of CPC has been admitted for hearing on the following substantial question of law :-

(2.) The plaintiffs filed a civil suit for possession of suit land bearing Khasra No.692 area 1.146 hectare and Khasra No.694 area 0.204 hectare situated at village Dhekuna, PH No.3 Tahsil Simga, Distt. Raipur, which was decreed by the trial Court, against which the defendant preferred an appeal before the first appellate Court under Section 96 of the CPC. The appeal so preferred came up for hearing before the first appellate Court along with application for condonation of delay on 16.9.2009. The first appellate Court firstly heard the application for condonation of delay as the appeal was barred by 8 years and 6 months and allowed the same and thereafter straightaway considered the merits of the matter and allowed the appeal by setting aside the judgment and decree passed by the trial Court. Against the said judgment and decree, the plaintiffs/appellants preferred the second appeal under Section 100 of the CPC, which has been admitted for hearing on the substantial question of law formulated as mentioned in opening paragraph of this judgment.

(3.) Learned counsel for the plaintiffs/appellants submits that the first appellate Court is unjustified in not following the procedure under Order 41 Rule 11 CPC after condoning the delay application and allowing the appeal finally, as such, the judgment and decree of the first appellate court so far as hearing the appeal on merits is bad in law and the same is liable to be set aside.