USHA Vs. VISAKH UNNIKRISHNAN

JUDGEMENT

(1.) An application for leave to appeal as an indigent under order XLIV of the Code of Civil Procedure (hereinafter referred to as ' the Code') accompanied by an application to condone delay, is it to be numbered pending condonation of delay or need it be numbered only after the delay is condoned, is the short question referred. There is an apparent conflict between the direction issued in C.M.C(P)No. 44 of 2005 with the direction in S.A.No.1837 of 1967 and circular No. 22/1968 dated 12.09.1968. An answer, though hardly of any judicial significance is necessary to streamline the procedure to be adopted by the registry.

(2.) Circular No.22/1968 issued by the High Court reads as follows:

(3.) In Thambi v. Mathew, 1987 2 KerLT 848 (FB)) : (AIR 1988 Ker 48) a Full Bench of this Court after analysing the provisions of Order XLI of the Code and the relevant judgments held that, if an appeal presented out of time is accompanied by an application to condone the delay, there is proper presentation of the appeal. An appeal presented out of time was held to be a valid appeal in the eye of law. The Full Bench held thus, ' An appeal presented out of time is nevertheless an appeal in the eye of law for all practical purposes. An order dismissing the appeal is a decree that can be subject of a second appeal.' 'An appeal registered under R. 9 of O. 41 is to be disposed of according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condonation of delay is in substance and effect a confirmation of the decree appealed against.' The above view was affirmed by the Apex Court in Shyam Sundar Sarma v. Pannalal Jaiswal, 2005 1 KerLT 198 (SC)) : (AIR 2005 SC 226). It was held, ' Thus, the position that emerges on a survey of the authorities is 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.'Therefore, it needs no further elaboration to hold that an appeal accompanied by a delay petition is still a valid appeal registered on the date of filing and is to be numbered.