NAVEEN GOSWAMI Vs. KAMLA GOSWAMI

JUDGEMENT

(1.) Having heard learned Counsel for the parties, a preliminary objection has been raised on behalf of the respondent defendant that since the rejection of a delay condonation application, as has been done by the impugned order dated 13.11.2015, is not a decree, so this second appeal cannot be preferred under Section 100 of the Code of Civil Procedure. Learned Counsel for the defendant respondent has also taken this Court to Section 101 CPC, which envisages that no second appeal shall lie except on the grounds mentioned in Section 100.

(2.) Learned Counsel for the appellant plaintiff refuted the above argument by relying on a judgment rendered by the Hon'ble Apex Court in Shyam Sundar Sharma v. Pannalal Jaiswal & Others, 2005 1 SCC 436, wherein it has been categorically held that the rejection of the delay condonation application tantamount to passing/affirming of a decree. So, it can be challenged under Section 100 CPC, as has been done in the instant case. For the sake of convenience, paragraph 10 of the said verdict is reproduced as under:

(3.) I am convinced with the submissions of the learned Counsel for the appellant plaintiff and considering the above ratio propounded by the Hon'ble Apex Court, this second appeal is accepted on the question of its admissibility and it is admitted for hearing on the following substantial question of law formulated at point no. A in the memo of appeal and the same is reproduced below: