LEENA Vs. STATE

JUDGEMENT

(1.) 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.P-3, application for copy of judgment and decree dated 9-2-2009 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.P-2, order dated 9-2-2009. Consequently the appeal also was dismissed. Petitioner filed Ext.P-3, 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 AS. 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. In this case vide Ext.P-2, order dated 9-2-2009 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. P-3, 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 5-4-2010 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 9-2-2009 which reads,

(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 KerLT 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 KerLT 198 after referring to the decision in Ratnasingh v. Vijaysingh has held,